DAY: 23


CHAIRPERSON: Sorry for the small room that we're sitting in, apparently it was the best that could be done. I'm told it's extremely difficult to get hold of venues in Cape Town over weekends. I've seen you've already done it, please feel free to remove your jackets if it gets hot.

We, as you all know, are here for oral argument in this matter. I'd like to thank all of the legal representatives for the comprehensive Heads of Argument, which took up a lot of my time to read, I'm sure you've all read them. Thank you very much. Unless anybody has anything they wish to say at this stage, you can commence the arguing.

MR BIZOS: There's a small supplementary argument ...

CHAIRPERSON: Yes thank you, Mr Bizos and Mr Kahanovitz, we've got it, the addendum relating to the word "satisfied". Yes, we do have that. And we also go the annexures to Mr du Plessis' argument as well this morning, the Indemnity Act and

the Decision relating to the application of Williamson. Have the applicants' legal representatives amongst them decided who is going to argue first? From our point of view we have no problems who commences.

MR WESSELS: I think I'll start, the same order that applied initially, Mr Chairman.

CHAIRPERSON: Yes, thank you. I think it would be better to switch the airconditioning off, because fortunately it's quite a cool day and there's a bit of a breeze, but maybe just to switch the airconditioning off and let's see how it goes. Mr Wessels?

MR WESSELS IN ARGUMENT: Thank you, Mr Chairman. Mr Chairman, I will refer to my Heads of Argument in some detail, but I won't dwell on the matters that I've addressed therein. Mr Chairman, the Preamble of the Act makes it clear that one of the aims in the passing of this Act, is to create the unique machinery whereby those who in the past had in certain circumstances made themselves guilty of violations, can be granted amnesty for their deeds. It's clear here that we're dealing with a unique process which is not unknown in the world. And let me emphasise that reference and should properly be made to perhaps decisions in criminal matters and other civil matters, but there shouldn't be a slavish following of the principles that have been decided upon in criminal matters necessarily in the past. One has to always have regard to the fact that we're dealing here with a unique process which is different in many respects, from that which prevails in the criminal court and that the provisions of this Act should be widely interpreted and more benevolently than which the Criminal Procedure Act in the criminal law should be applied.

Mr Chairman, I state in paragraph 2 that no procedure for the hearing is described in the Act, but it is clear that we are dealing with an administrative process which is subject to the principles of administrative law. I may refer to the case of Du Preez vs The Truth and Reconciliation Commission, where the principles had been set out, that's well known, and one of the important principles of administrative law and the fairness principle in that is that when there is an accusation against a person, that person should be given an opportunity to deal with that accusation, he should have proper notice of that and then he must be given an opportunity to deal with that. Now in due course I will submit that insofar as my client is concerned there were no, although it may be argued that he did not make a full disclosure, it was not suggested to him in any respect that there were facts and what the facts were that he failed to disclose. The attack on him was a general credibility attack as to what had happened before the Harms Commission some 10 years ago and the attack was not pertinent to any particular fact that he had not disclosed insofar as these particular deeds are concerned for which he applied amnesty for.

Mr Chairman, I state in paragraph 3 that the Committee in these applications has the unusually difficult task of deciding the applications in an unbiased fair way, while the issues, personalities and atmosphere of the hearing are deeply emersed in the emotion and previously acquired profiles negatively reflect on the character of the applicant. Mr Chairman, we can just have regard to what had appeared in the press in the last 10 years, the accusations that have been levelled against the applicants, the suspicions that prevailed and in particular, where the press over the last 10 years and especially in 1990, everything that had gone wrong had been placed at the doors of the CCB. Now we all know, and you know better than any of us, I presume, that all these deeds that were placed, most of the deeds that had been placed at the door of the CCB in those years, actually were committed by the Police and the Security Forces in particular. And as a result of the bad press that the CCB had received in the early years, a perception had been created that everything that was done was done by the CCB and Verster, in particular, which in fact is not true. So Mr Chairman, it is my submission that the Committee has the invidious task of disassociating itself from the urge to approach the application against the background of prejudice and popular public perception and preconceived impressions.

Mr Chairman, although at first glance appearing an insurmountable task Mr Chairman, as you are only human with certain backgrounds and certain perspectives, it becomes easier if one has regard to the clear and unambiguous words of Section 20 of the Act, which states how amnesty should be granted and the effect thereof. And Mr Chairman, I would like to read it although you probably know this better than anyone else, but it is of importance that one should always bear the words of the legislature foremost in one's mind. It states:

"If the Committee, after considering an application for amnesty, is satisfied the application complies with the requirements of this Act. The act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and (c), the applicant has made a full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence."

Mr Chairman, it is suggested that if you steer clear of speculation and conjecture, then a grant of amnesty will follow as a matter of course.

Insofar as the word "political objective", in terms of Section 20(1)(b) is concerned, a benevolent interpretation should be adopted. The clear intention of the legislature was for reconciliation and reconstruction of society. Statutes like this should always be liberally interpreted. I refer to some authority. It was also of importance to note that this particular Act had been promulgated against a background and the spirit of the Preamble, which reads as follows:

"And since the Constitution states that there was a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not victimisation."

It is therefore submitted that regard has to be taken of the Preamble of the Act and the intention of the legislature and the Constitution, and that it's clear that a narrow and restricted interpretation and application of the criteria mentioned in the Act, could not have been the purpose and intention of the legislature. A narrow and restricted interpretation would invariably lead to the creating of a dangerous situation and that it would certainly discourage people which it sought to bring forward to apply voluntarily for amnesty and to disclose the deeds that were perpetrated in the past, in the fear that the conditions would be applied so harshly, strictly and narrowly that the granting of amnesty would only be done in the most exceptional cases. ...(indistinct) past decisions of the Amnesty Committee show that a wide and benevolent interpretation has been adopted.

Now Mr Chairman, you sit as a Committee of the Amnesty Committee and it is my submission that in regard to decisions that have been made in the past where amnesty was granted, although of course the facts differ and there is no precedent, principle that applies, you are nevertheless bound to apply the general principles that have been applied in the past and if a benevolent interpretation has been adopted, then you should be bound by applying the same type of principle in these cases.

There have been many applications granted in the past, and unfortunately I'm not in possession of those decisions, I can only speak from what has been reported in the popular press, but in regard to many of those cases where amnesty has in fact been granted on both sides of the spectrum, it is clear that the Commission have applied a benevolent interpretation, especially insofar as the proportionality principle has been concerned, and it is my submission that if you look from the one end of the scale, matters like Macgoo's Bar Bombing and on the other hand even matters like Nietverdiend killings, those are matters which were far more serious than any of the matters which are before you, and amnesty was nevertheless granted in those particular cases.

CHAIRPERSON: Not yet in the Macgoo's Bombing.

MR WESSELS: Oh sorry, then I made an assumption ...(indistinct) practice. But there are other incidents where similar types of grantings have taken place.

Mr Chairman, the applicant has to satisfy the Committee in terms of Section 20(1), that the application complies with the requirements of the Act. I don't believe that there's any suggestion that we have a technical difficulty in any way.

CHAIRPERSON: Yes, I don't think that's been raised at all by anybody, the actual formality side of it.

MR WESSELS: Yes. The act, omission or offence to which the applicant relates, is associated with a political objective and was committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and that the applicant has made a full disclosure of all the relevant facts.

Mr Chairman, for purposes of determining if an act is associated with a political objective, the criterion in Section 20(2) shall be taken into account and to determine whether an act is associated with a political objective, the factors as set out in Section 20(3), should be taken into account.

Then I'm just referred to Section 20(4), I won't dwell on that. The other formalities or principles that are required I set out in 14, Mr Chairman. It's not necessarily to deal with that I believe.

Mr Chairman, what is important is that Section 20(2)(b) makes it clear that amnesty can be granted to members of a Security Force, who committed acts during a political struggle against members or supporters of an organisation opposed to the State, in the bona fide belief that they were countering and resisting the struggle.

Similarly, Section 20(2)(f) indemnifies any person who, on reasonable grounds, believed that he was acting within the course and scope of his duties and within the course and scope of his or her expressed or implied authority.

Then Mr Chairman, insofar as Section 20(1)(c) is concerned, one must read the words "full disclosure of all relevant facts" in the context of the Section as a whole. The application for amnesty is for a particular act, omission or offence, and I refer to Section 20(1)(b) and that act, omission or offence, Section 20(1). It is therefore clear, in my submission, that the legislature intended to deal only with particular acts and not anything more.

This Committee is an Amnesty Committee under Section 16 and 17 of the Act, and not an Investigative Committee under Section 12.

Insofar as evidence was elicited which do not pertain to the three applications of the applicant, it is my submission that it is irrelevant for the purposes of the application, whether given by the applicant or anyone else. Section 20(1)(c) makes it clear that we are not dealing with all facts, but only relevant facts.

The next question that arises is what is meant by "the Committee, after considering an application for amnesty, is satisfied that". Mr Chairman, in the Afrikaans version of the Act "oortuig" is used, "satisfied" is not the same as "oortuig". I refer to the case of S vs Makula and would like to quote from that case:

"The official version of Act 51/77, namely the Afrikaans text, uses the word 'oortuig' in the said Section, whereas the English text used the word 'satisfied'. In my view, the correct translation of the words 'om te oortuig' is not to satisfy but to convince. It is only if a person is convinced of a certain fact that one can say in Afrikaans 'hy is daarvan oortuig'. The correct rendering into Afrikaans of the words 'to satisfy' in the present context, is not 'om te oortuig', but 'om tevrede te stel'. According to the English/Afrikaans Grootwoordeboek, the word 'satisfied' is translated as 'tevrede, versadig, bevredig, voldoen' and the word 'satisfy' is 'bevredig, voldoen, tevrede stel, versadig, gerusstel."

CHAIRPERSON: If you take a look at this addendum that we've just been given, The Shorter Oxford English Dictionary, page 3 paragraph 8, the Shorter Oxford English Dictionary defines "satisfied" to mean "to furnish sufficient proof or information, to set free from doubt, or certainty, or to convince." But I agree there is a difference between "convince" and "satisfy", although this Shorter English Dictionary defines "satisfy" to mean also "convince".

MR WESSELS: Perhaps in a general sense, language sense, there may be differences compared to in a judicial sense where particular emphasis is placed on the proof aspect of it. So it is my submission that analyses in the Makula Judgment is more appropriate than using the dictionary that you have referred to, Mr Chairman.

CHAIRPERSON: But if one takes - it's always difficult to get a precise meaning for a word like "satisfy", you know what is satisfy? You can give it a, even within itself, a stricter type of meaning or a more liberal and broad type of meaning. And I know the general rule, we all know the general rule of interpretation, it's the signed text that counts, but if one takes a look at the English, okay that's the signed text, satisfied, and then we now want to know whether we should go the more restrictive way with regard to satisfy or the broader meaning of satisfy, and then the Afrikaans word is convince, "oortuig". Does that not mean that the intention of, it would indicate that the intention of the legislature was ...(intervention)

MR WESSELS: The stricter interpretation?

CHAIRPERSON: Yes, satisfied should lean more towards convince than the other way.

MR WESSELS: Mr Chairman, firstly, words like "oortuig" or "satisfied" is also a relative concept, what is satisfied for one person may not be satisfied for the other person and you can necessarily say who is right or wrong in applying the word to a particular set of facts. That is why it has to be read in the context of the Act as a whole, where the intention is, as I've submitted to you, to give it a broad benevolent interpretation, so that as many people as possible, the intention is to give as many people as possible amnesty and to have the purposes of the Act complied with, and you've got to see it in that light, firstly.

Secondly, you've got to see it in the administrative law sense, which is applicable here, where you're dealing with an administrative procedure and administrative interpretation as opposed to a criminal procedure type of situation.

CHAIRPERSON: Are you saying, Mr Wessels, that in using the word satisfy we can go beyond the balance of probabilities, down to possibilities?

MR WESSELS: Yes, that is what I say and I deal with that further in my Heads, that the test is not a reasonably probably true version, but only a reasonably possible version. Or that it could be reasonably possibly true.

MR LAX: Wouldn't that make our work extremely ...(inaudible - no microphone) on the irrelevant?

MR WESSELS: No, with respect not, Mr Chairman. This is not - the interpretation that is to be given to this Act is a wider interpretation than is to be given in criminal proceedings, in the Criminal Procedure Act and even in criminal law the test ...(sound cut off)

CHAIRPERSON: I think you'll probably all agree that it's not beyond reasonable doubt.

MR WESSELS: Yes, that is the onus that is on the State, but if you take the other side of the coin, what an accused in a criminal case must do is only convince a Court that is version is reasonably possibly true. So if you apply the probably true version here, then you're placing a onus on an applicant which he doesn't even have in a criminal trial. And that in my submission, is clearly contrary to the intention of the legislature, the intention was not to make it more difficult for a person to get amnesty than for an accused to be found guilty in a court of law.

MR LAX: Of course the difference is quite obvious, that in a criminal trial the State has a duty to prove beyond reasonable doubt, it's in the context of that beyond reasonable doubt case that the burden on the accused then kicks in. Here we don't have that scenario, here we're in the situation of a civil trial where an applicant bears the onus of proving his application.

CHAIRPERSON: But you wouldn't have in a criminal trial that on the one hand the State must prove it beyond reasonable doubt and on the other the accused, in order to succeed, must prove it on a balance of probabilities. Because after you've proved it with a reasonable ... they're too close to each other.

MR WESSELS: No, that is so. But one must look at what the Act here says, it says if the Commission is satisfied that there has been a full disclosure. It is clear that we don't have the position where an accused or an applicant must come and prove anything on any probabilities. If that had been the intention it would have been easy for the legislature to state that the applicant must prove on a balance of probabilities, or whatever the position was, that he was telling the truth or as is said in the Criminal Procedure Act, before indemnity can be granted in terms of Section 204, there was must be an honest and frank disclosure, then he can get it.

One must assume that the legislature was aware of the provisions in the Criminal Procedure Act, where indemnity can be granted to a person if he makes frank and honest disclosure, and the legislature didn't use those words in this particular Act. And one must then look at the Act as a whole to see what was the intention of the legislature, was there an onus that is being placed on a particular applicant in a civil sense, where on the probabilities he has to prove things, or does he merely have to satisfy a reasonable Tribunal, that the facts that he's disclosed were full in the sense that people would know what had been done in the past. He doesn't even have to be a good or an honest witness. He, in my submission, can be a bad witness in the sense that he hasn't make frank disclosure or honest disclosure about many facts in his application, which in terms of the Criminal Procedure Act, would not entitle him to an indemnity in a court, but as long as he makes full disclosure of the facts pertaining to the particular application.

CHAIRPERSON: Just on that point, Mr Wessels, if an applicant applies for there or four incidents and he makes an honest and frank disclosure in respect of one but not in respect of the others, what would be the situation then? Would the fact that he's found to be a liar in respect of three of the four incidents ...(indistinct) taint the incident in respect of which he's probably told the truth, or do you compartmentalised the incidents, or what approach have you followed?

MR WESSELS: With respect Mr Chairman, I think that illustrates my argument very well. If the test was that he has to be an honest witness who made a frank disclosure, as the test is in the Criminal Procedure Act, then once it is found that he doesn't comply with that test, then he shouldn't get amnesty for anything, because he's not a frank and honest witness. Whilst, if the test is applied as I submit it should be applied, that he must make full disclosure of a particular act, then you can grant him amnesty for the acts where he's made full disclosure and refuse him on those that he hasn't made full disclosure. And I think one must look at the Act and if you test it in this fashion, then you'll see that that is what the legislature had in mind. Mr Chairman, I deal further in the paragraph with the argument that we've just deal with, I won't read further my Heads.

Paragraph 22, I deal with the Criminal Procedure Act and the words "frankness" and "honesty" that are used there.

Then I submit that the applicant qualifies for amnesty under Section 20(2)(b), alternatively, Section 20(2)(f). Now Section 20(2)(b) reads as follows, Mr Chairman:

"Any employee of the State or any former State or any members of the Security Forces of the State, or any former State in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation or liberation movement engaged in the political struggle against the State or a former State or against members or supporters of such organisation or movement and which is committed bona fide with the object of countering or otherwise resisting the said struggle"

and then (f)

"Any person referred to in paragraph (b), (c) and (d), who on reasonable grounds, believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority, qualify."

Now this becomes relevant in regard to the dispute between Verster and Webb on the Omar and Evans incidents. Mr Chairman, it should be mentioned or submitted that the dispute between Verster and Webb, in regard to whether Webb had given authority for a plan to eliminate Messrs Omar and Evans, is of no real consequence.

Gen Webb did not apply for amnesty. What his position will be in the future is of no concern of this Committee.

CHAIRPERSON: Well on his version, one would expect him not to have applied for amnesty in respect of those matters if he didn't know about them. Although one could argue that maybe in his capacity as overall leader he accepts responsibility for all that was done. He obviously hasn't applied for amnesty, because he denies giving authority.

MR WESSELS: Yes. So it's not necessary for you to make a finding in that regard, you must only look at Verster and ...(intervention)

CHAIRPERSON: But he has testified in this before us, I mean the evidence is there.

MR WESSELS: Yes, no, certainly.

CHAIRPERSON: But you say we needn't make a ...(intervention)

MR WESSELS: You needn't make a finding, because it's not necessary. You don't need to test or make any decision in regard to Gen Webb on these issues, what you need to do is you need to make a decision in regard to Verster on these issues.

Now if Verster acted within the scope of his employment and with direct or indirect authority in terms of Section 20(2)(b), then he must get amnesty for that. If Webb did not give him permission, then you must test whether he bona fide believed that he had authority, express or implied, in terms of Section 20(2)(f).

Now let's look at the facts, Mr Chairman. It is submitted that insofar as Verster is concerned there's no dispute that he gave the authority for the elimination believing on reasonable grounds that he was acting in the course and scope of his duties and within the scope of his express authority. The Committee is referred to the testimony which on this ground, was not attacked, save by Gen Webb. No-one else suggested to Verster that he did not have authority from Webb, with reference to the logistical support, ie: the money and the firearm was made available. And furthermore, having regard to Gen Webb's own testimony that had Verster asked him for the authority he would probably have granted it. There can be no question that the applicant on reasonable grounds, believe that he was acting in the course and scope of his duties and within the scope of his express or implied authority and therefore complies with Section 20(2)(f).

CHAIRPERSON: Just on that, we've heard evidence from Gen Webb to say that with regard to any operation that would involved the assassination of any person, not only he would have to give authority, but he would have to go higher. That was his understanding of it. And I don't think that's disputed, is it?

MR WESSELS: No, what happened between him further was not known to anyone.

CHAIRPERSON: So if Mr Verster didn't in fact, for the sake of argument, didn't in fact get the authority from Webb to put the Omar and Evans operations into effect, on what implied authority would he have been operating?

MR WESSELS: Well as long as he's bona fide believing that he had authority. If there was a discussion where, and the one person, if Verster thought he had the authority to eliminate and carried out the operation, whereas Webb in fact, his authority fell short of that. As long as Verster bona fide believed that he had the authority to go that far.

CHAIRPERSON: This is the sort of thing you can get confused about though, whether you've got authority to kill somebody or not.

MR WESSELS: Well the manner in which this happened, we know that there were discussions, sometimes over the telephone, on these things and one may criticise the method in which this happened. I'm not suggesting that that is a good way of doing things. That doesn't alter the fact that there may have been a misunderstanding of some sort in that regard. There's a dispute between the two and there has been a dispute for many years in regard to exactly where or to what extent Webb had given authority for these operations. It's clear from that that at least as far as Verster is concerned, he was bona fide in believing that what he did was within the purposes of what he was there for. He got the money through a budget, he got or made the arrangements that a weapon be obtained and this was the type of operation where had he, Webb says that if he had been asked for permission to do it, he would have granted it. So there may have been something that happened at the last moment, where Webb didn't think that he gave permission when Verster thought he had given permission.

MR LAX: Can I ask you this, because it really, we can go around in circles forever. My difficulty goes to this point and that is, he says he got permission, so there's a disjuncture between what he says. If he says he got permission, he can't then rely on his implied authority, because he says categorically: "Webb gave me permission. I had Webb's authority to do it." Webb says: "I didn't give you authority." If he's telling us he got authority and he's wrong in that respect, either he's not telling the truth, or he's mistaken, or whatever the case might be, he can't then rely on his implied authority, because the two are mutually exclusive.

MR WESSELS: Then he can rely on that he bona fide believed that he had that authority.

MR LAX: But he can't because he says he got it, so his belief ... you can't on the one hand say: "I got authority" and then on the other hand say: "Well now I'm not sure that I got authority, but I bona fide believed I did get authority.

MR WESSELS: No, with respect that's not the test. You can say: "I had authority" and if you are found to be wrong, that you didn't have authority, that's when you can say: "But I bona fide believed that I had authority." The one is not exclusive of the other. It would be ...(intervention)

MR LAX: You see they don't make sense to be in the alternative, but I'll ...

MR WESSELS: Mr Chairman, if you can't relay in the alternative, then there's no purpose, there would have been no purpose for putting (f) in the Act.

CHAIRPERSON: I think what Mr Lax is - I'm sorry, I think you can put better what you're thinking.

MR LAX: You see the purpose of (f) is a different class of people and my point is a subtly different one which says that if you say you had authority, then that's different to having a bona fide belief that you had authority. And in that sense, at a factual level the one excludes the other. You can't say: "Well he gave me authority", because there's a dispute of fact now. Either he did or he didn't. If he didn't, then you're wrong, then you can't come in the alternative, because basically the issue goes to full disclosure. Is he making full disclosure if he says he had authority when he didn't have authority?

MR WESSELS: Yes Mr Chairman, he does, because full disclosure is full disclosure insofar as he's concerned, of the facts that pertain to the case and his motive, or rather, his beliefs if found to be incorrect, can't be held against him and now say: "You genuinely believed that you had authority, but now it's turned out that somewhere there hasn't been the official authority that was required, now you can't get it, because that's not a full disclosure." It's not an objective full disclosure in regard to all facts and - let's take an example, let's assume that authority had to be given by the Minister of Defence and somewhere in the chain of events the Secretary of the Minister didn't sign the order, but lower down it was believed that the order had been signed and the deed is executed, then objectively there wasn't the authority as is required, presumably in Section 20(2)(b), then he can still get the amnesty, although he will come and say: "I had the authority". Some other witness may later on come and say: "No, that signature that appears there is not the Minister's, that's only the Secretary's signature. And that's where (f) comes in. If I may read (f) to you ...(intervention)

MR LAX: You don't have to, honestly, I'm very familiar with all these Sections. You see where I disagree with you or where I'm finding difficulty with what you're saying is this. Verster is not saying that: "I thought I had authority", he's not saying: "I believed I had authority", he's saying I got authority from Webb and Webb's denying that. So he's not in a position of someone who can come under (f) and say: "I bona fide believed I had authority", because he's going further than that, he's saying: "I did get personal authority". So he's not in the position of a footsoldier acting on someone else's order thinking that that person was authorised to give him the order. And that's the gist of (f), is that there is an objective set of facts upon which you rely, a sort of representation if you like, on which you rely, which then says. "based on those facts, I am entitled to assume that the person who gave me the order had authority and I bona fide believed he had." This is different, this is where you're in primary instance receive saying: "X gave me the order" and X is saying: "I didn't give you the order." And that's what we have to look at.

MR WESSELS: Mr Chairman with respect, the position is different. Let's assume two persons talk about this and the one understands the other one to give an authority, but for whatever reason there's a mistake. On the proposition that you put to me, the moment that a mistake comes into it, the applicant has lost out, he cannot get amnesty.

CHAIRPERSON: You see this goes back to what I put to you. If one just looks at the probabilities, if one takes into account Gen Webb's approach saying that he would not have granted authority without having gone up and gotten authority from his superiors. So if he - let's just assume that Mr Verster comes and says: "Okay, we want approval for these two operations", Webb them follows the route and he goes up to some other higher General, then comes back and says: "You've got ..." I'm just finding it difficult, how would there be a misunderstanding or a mistake? How could there be?

MR WESSELS: That one can't answer without speculating as to what the reason for that was, but you've got to see it in the context of the evidence of Webb: "If I had been asked, I would probably have granted it". So it's clear that in the factual matrix of events, this was something that Verster reasonably could have believed that he had authority for.

Now if there was a short circuit anywhere in the final decision, then it would mean that there wasn't authority given, but it doesn't detract from the fact that Verster believed that he had authority and his belief that he had authority, even though factually incorrect, still makes him bona fide.

CHAIRPERSON: I don't think anyone has got a problem with the concept that if somebody bona fide and genuinely believes that he's acting with authority, that Section 20(2)(f) clicks in, that's quite clear. But then one has to have regard to the evidence to find out whether it's reasonable to find that he did bona fide have that belief. That's basically what it is, just an assessment of the evidence.

MR WESSELS: But a distinction must be drawn between the instruction ...(indistinct) that happened and whether the belief was reasonable. And there's, with submission, no evidence to suggest that Verster's belief that he had authority, was unreasonable. If for instance this was something that was clearly outside the ambit of what the CCB was doing, then one could say he didn't have authority and you could not have believed, you could not have been bona fide. The test for bona fide is a different test from whether he had authority. And there's nothing to suggest that his belief could not have been bona fide. He believes he had the authority, but let's assume he's wrong, let's assume for the moment that he's wrong on that. What is there to suggest that his belief is not genuine?

MR LAX: Perhaps what you could do for us in due course, during the course of today and tomorrow perhaps, let's hope we don't get to tomorrow, but if we have to we have to, is find for me the sections in his evidence where the distinction between, where he says anything other than that: "Webb gave me this". Well actually, I might be wrong and it's possible that I just thought that he gave it to me, rather than actually gave it to me". If there's any concession to that effect in his evidence, that would help us, at least it might back up the secondary argument, the alternative argument that you're using. And if you could refer us to those aspects, if there is such evidence, then obviously that would be helpful.

MR SIBANYONI: Mr Wessels, before you continue, I see this as a clear contradiction between Webb's version and Verster's version. Is the Committee entitled to prefer one version above the other? What is your submission in that respect?

MR WESSELS: Well the Committee can make a finding to say we accept the one and not the other, if there are reasons to prefer one above the other. The difficulty that comes in is if the Committee is uncertain as to who is in fact correct. And then the problem comes in Mr Chairman, the question posed is very interesting, it's a very interesting question and the answer is quite difficult. One of the two is wrong, clearly wrong. Now if it is Webb that is wrong, then clearly Verster is entitled to amnesty. If the Committee is uncertain who is wrong, then you can't refuse Verster's amnesty on the possibility that it was Webb that's right and Verster is wrong.

So before you can then find against Verster, you must make a positive conclusion that Verster was not telling the truth, that he was lying on this particular aspect.

CHAIRPERSON: I think the route followed in the applicant's argument is that they were both bad witnesses, there's no proof, there's no credible evidence that can be relied on ...(intervention)

MR WESSELS: No, no, the opposition.

CHAIRPERSON: The victims at least, not the applicant. ... that can be relied on and there's some sort of onus, although it's not mentioned in the Act, merely because the applicant's an applicant he's got to put up stuff to convince the Committee that he's entitled to the application, therefore there's a form of an onus on him. But the evidence is just unacceptable in respect of both those applicants and ...

MR LAX: Sort of akin to, for example in a civil trial, the point of absolution, ja.

MR WESSELS: That would be placing an onus on an applicant and then we get back to the important issue, does full disclosure place an onus on an applicant, that he has to satisfy and if he doesn't do so, is there an absolution of his application type of procedure?

MR LAX: Well perhaps you could address us on that, because it is a relevant consideration.

MR WESSELS: Mr Chairman, my submission there is, there's no onus in that sense, it is merely - the test as I said is, is it possible, is it reasonably possibly a full disclosure? Is it possible that Verster could have believed that he had authority? Can that inference reasonably be drawn? And once that happens, then he has satisfied in the sense of this particular Act.

MR LAX: Then how do we deal with the, assuming there is a contradictory version which is equally reasonably possibly full disclosure, then what do we do? You see, if they're both equally reasonably possibly, what decision do we make?

MR WESSELS: Then he must be granted amnesty, because as far as his version is concerned that must then be isolated from the other reasonably possible version. You don't have to weigh up the two versions and say which one is more reasonably possibly true or not? Just look at the applicant's version, if his version is reasonably possibly true, that's it. There's no scale of weighing the different reasonably possibly trues.

MR LAX: So we don't look at which is most reasonably possibly true or which is most probable?


MR LAX: And what if the one is just so glaringly not - I suppose then it's not reasonably possibly. Absolutely.

MR WESSELS: ...(inaudible - no microphone)

MR LAX: Okay, fair enough, fair enough. I'm getting myself in a knot.

MR WESSELS: Mr Chairman, let me emphasise this is not, we don't have a trial, the Act didn't contemplate a trial situation where there has to be a weighing up of versions. It happened in this particular case that we, in an oppositional type of situation, hereby the victims as opposed to the applicants, but in a lot of these cases that wouldn't have been the situation and there may not even be opposition to it.

CHAIRPERSON: Yes, but obviously if the two applicants who have the different versions were both applying in respect of the same incident, then one would have to weigh them up, because otherwise if you apply your test, then they would both get amnesty on two different versions for the same incident.

MR WESSELS: Yes, yes. But we don't have that situation, that would have complicated the issue if there was two applications pertaining to the same factual incident matrix, and you have two versions, the one is full disclosure and the other one is not, then you have a difficult position. But fortunately, in my submission, you don't have that situation here and therefore, it's not necessary to come to a conclusion that Webb's version is more reasonable than Verster's version. Just look at Verster's version and judge it on its own and see, having regard to the fact that the weapon was to be obtained from the stores, that money was to be obtained from the budget, which all went through the authorities, whether that ...(intervention)

MR LAX: But hang on a second, none of that went through Webb, and the evidence is clear on that, that those logistical issues went through your client. They didn't go through Webb.

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.

MR WESSELS: But where do you draw the line? And in my submission I think one must take into account that there was no real harm done in this particular case.

MR LAX: Mr Wessels, I don't know if you or any of the other parties are necessarily aware of the decision of the TPD in an unreported matter of Botha, the Review Application, where the Presiding Judge in that matter took the view that these criteria set out in Section 20(3) are all indiciae, in a sense, of what is political and are not requirements per se. I just thought I'd draw that to your attention, because it's relevant to the question of proportionality. In that particular case proportionality wasn't the matter under discussion, it was another aspect of those list of indiciae or criteria. But there is that unreported decision that we're aware of, because that matter is being reheard in due course, as a result of that Review Application.

MR BIZOS: ...(inaudible - no microphone) our Durban office acted for the victims and that Review Application was argued without notice to the victims and without, I don't want to criticise the learned Judge, with respect, but we will argue that this Committee can, with respect, will not be bound by that decision because it was not argued on the other side. We considered setting the Order in the Judgment aside, but decided that we will go back to Durban and argue that the amnesty should have be refused anyway, rather than asking for a re-opening and going to the Appellate Division to set his Order aside and that sort of thing. But we will not concede that that Judgment is a binding authority on anyone, Mr Chairman.

CHAIRPERSON: Because it fully argued by both sides, yes.

MR BIZOS: It wasn't fully argued, it's actually - nobody, not the counsel for the applicant, not the Judge himself said, where are the people that were amassed to oppose this application in the ...?

MR LAX: Yes, I just thought it only fair to draw everyone's attention to that decision, because it goes to this issue.

MR BIZOS: ...(inaudible - no microphone) working on it, Mr Chairman.

MR WESSELS: Well Mr Chairman, it may well be that Mr Bizos is not happy with the outcome of that case, but until that Judgment is set aside, it remains a Judgment of the Supreme Court and it is still binding. Whether it was argued by other people or not, then there must be a new Judgment, but until such time as there is a new authority overruling that authority, it still remains ...(intervention)

CHAIRPERSON: Yes, we're getting into another whole branch here, to what extent are we bound by decisions of the Court in any event? Sitting here as a Committee.

MR WESSELS: Well the laws of precedent are not applicable, because you're not a court of law, you're an administrative body. And it is my submission that administrative bodies are clearly bound by any Judgment of a Supreme Court. So to that extent, irrespective of whether the parties were heard or not, if there's a Judgment with a certain ratio, that ratio applies until it is set aside of course.

Mr Chairman, then it's clear that insofar as my client is concerned, that there is no question that he did not do any of these acts for personal gain but he acted merely in his capacity as a solider of the State, and there's no personal malice, ill will or spite directed at the victims of the acts.

And then I deal with the full disclosure aspect for which amnesty is applied for. And then let me emphasis again, Mr Chairman, it doesn't appear in my Heads, but being an administrative procedure, if it is suggested that there is no full disclosure of factual events, then those particular allegations must be placed or put to a particular person for him to deal with that.

Now the criticism during Verster's evidence, not ...(intervention)

MR LAX: Sorry, can I just interrupt you, I didn't understand what you were saying now. Are you saying that if an applicant comes before us and doesn't make full disclosure, that before we can hold failure to make full disclosure against him, we have to draw to his attention the extent to which he hasn't made full disclosure?

MR WESSELS: No, not in that sense. He must come and he must place facts before you to indicate full disclosure, but if there is a suggestion that for instance, like in this case there was "you didn't make full disclosure because there were nails attached to the bomb", then that should be put to him so that he can deal with that aspect and point out what the probabilities are or call evidence or whatever to do that. But it's not good to say just go through it and then at a later stage put a trap there and say: "I've got a witness here who puts a totally different set of facts before you and now from this it appears that you didn't make full disclosure" ...(intervention)

MR LAX: Well that goes to the rules of normal procedure, no trial by ambush, etcetera, one accepts that. But the thrust of my question is, is the applicant not dominus litis in that sense, and therefore if he - it's in his bundle if he doesn't place the appropriate facts the Tribunal.

MR WESSELS: Yes, no ...(sound cut off) only if there are particular issues forthcoming which is now used to disprove the facts that he has placed before you, that that needed to be put to him in that sense. And it is my submission that there is nothing put to him in that sense, in this case.

Mr Chairman, it is my submission that the criticism against him when he gave evidence was that he did not tell the truth at the time of the Harms Commission. Now it has already been argued - sorry, the other criticism is, or the main criticism against him is that he refused to answer questions pertaining to acts for which he did not apply for amnesty. Now Mr Chairman, insofar as that is concerned it's already been argued that anything falling outside the ambit of the Act, for which amnesty is applied for is irrelevant and need not be answered. His refusal to deal with those matters can therefore not be regarded as a failure to comply with the full disclosure course. And secondly, we debated that and argued that before you at the time and you in fact made a ruling that he needn't deal with specific acts. And I can refer to the record, it's on page 101, 107 of the transcripts - sorry bundle E, Mr Chairman. So it is my submission ...(intervention)

CHAIRPERSON: Sorry Mr Wessels, inextricably linked to this whole question of full disclosure is credibility as well. I think everybody agrees that it's a full disclosure of all relevant facts, which is frank and honest. So one also under this heading of full disclosure, has to look at the credibility of a witness. Now we, in our experience sitting at hearings, often hear of cases where somebody has lied in the court at his trial and given a completely different version, alibi or whatever, and he comes and applies for amnesty and then says: "Look, I lied at my trial, because I didn't want to get convicted." Okay, that's taken into account, it's a little warning light with regard to assessing the credibility of the witness, but it doesn't exclude him from it. But what is your submission with regard to where there's conflicting statements that have been made to the Committee? In other words, there's something different said in the application as to what is said at the hearing. These are both, I mean they're different, you can ...(intervention)

MR WESSELS: No, no, that's different, that's obviously pertinent.

CHAIRPERSON: And then obviously with regard to Mr Verster, that must be taken into account with regard to assessing the credibility. And then with regard to the Harms Commission, there seemed to be a great reluctance on the part of Mr Verster, to admit that what he told the Harms Commission, wasn't the truth. He didn't really stand up and say, you know, that's what I did. So what .... that we must take into account in assessing his credibility as well.

MR WESSELS: Mr Chairman with respect, the first proposition, if there are conflicting statements here before you, that's obviously pertinent to credibility. Insofar as to what happened 10 years ago, whether he lied there or not is in my submission, irrelevant. There were reasons for him, good, bad or indifferent, why at that time ...(intervention)

CHAIRPERSON: No, no, but what I'm saying is, that's why I mentioned this criminal case where people come and say: "I lied, I did it, and this is why I lied, I didn't want to go to jail." But what happens if you've got the trial record and you've got the evidence and the witness says - and which are completely different, and the witness says: "Well I didn't lie in the trial"?

MR WESSELS: Well, we don't really have - it doesn't go that far in this particular case. I can see there was a reluctance by Mr Verster, to make any concessions in that regard, it doesn't go beyond a reluctance to make concessions. But then you must take into account the personalities that we're dealing with. It is not necessarily a version, or the fact that he was reluctant to make concessions doesn't retract from the fact that he can be credible insofar as his evidence before you is concerned about the events that are being dealt with now. You must take into account the personality of the person. He is reluctant, because of his personality, because of his beliefs, to make concessions about the past.

He, rightly or wrongly, believes that he was victimised at the time, he's probably correct in that assumption, and that carried through for many years. He wasn't in a position, at that time, to make any concessions and he believes that the way he acted was the only way he could defence himself at that particular time. He doesn't, at this stage, want to make the concession that that was an inappropriate way of dealing with the matter. So you've got to see it in that light and not in a light of a man being untrustworthy, in the sense that he ...(sound cut off)

MR LAX: My difficulty is this, is that we deal literally in hundreds and hundreds of cases, we have heard people come and say: "I lied in the past. I concede I lied in the past", but then they give a credible explanation for why they lied and what motivated them to lie and why we should now believe them, as opposed to what they said in the past. And the difference here is, he just has simply not done that, he just refused to tell us why we should now believe him, rather than what he told another forum.

MR WESSELS: You see but that ...(sound cut off) ... it is full disclosure of what he did and it's not being a frank and honest witness in all respects. He was not a frank witness in regard to what happened at the Harms Commission, for instance, let's assume that for argument's sake at the moment ...(intervention)

MR LAX: You're not conceding that?

MR WESSELS: Mr Chairman, why should I make confessions if my client didn't make concessions. I think he'll probably fire me if I make concessions. (On a lighter note). But that is precisely the point that I was making from the beginning. He's not required to make full and frank disclosures of why he acted in a certain way at that time, unless it pertains to the act itself. So with submission, that is actually an irrelevant factor that you shouldn't apply at all in assessing whether there was full and frank disclosure.

MR LAX: I mean in essence you're saying that for us to require that of an applicant is probably not proper?

MR WESSELS: ...(sound cut off) and in administrative law jargon, it would have been that a Tribunal had regard to irrelevant facts, which shouldn't have been, it would be a misdirection in terms of law. I deal with that aspect on paragraph 34 of my Heads, Mr Chairman.

Then Mr Chairman, there's been many suggestions during the course of these lengthy proceedings, from counsel to the witnesses, which is my submission never went beyond speculation. And if there is to be a finding that there wasn't full disclosure, it can only be made on inferences that is to be drawn. And the submission will be that there wasn't a full disclosure of the bomb aspect. There was no suggestion, as far as I can make out, that there wasn't a full disclosure pertaining to the facts as they related to the Omar and Evans conspiracy to murder itself, the only suggestion is that insofar as the bomb is concerned there wasn't full disclosure on the facts, because there was an attempt in fact, to kill the people and not only to damage the building.

Now to come to that conclusion you would have to make inferences from the facts that are proved, or let me not use approved in that sense, but the facts that you find pertain to the incidents. And then Mr Chairman, it is my submission that you have to, at the very least, apply the test as set out in R vs Blom, and that test is the following:

(1) "That the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them, save the one to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct."

Mr Chairman, that is a cardinal rule of logic and in applying the test to proven facts here, in contradistinction to speculation, the applicant's version that the intention was only to damage that building, it is my submission, cannot be refuted.

It is my submission that although there were persons in the building at the time of the bomb went off, it is clear that there's room for a mistake, even perhaps negligence on the part of Van Zyl, Botha and Hardien. It is clear from that evidence, it was put to the witness, Mr Alexander, the statement of Mr Williams that he had made at the time. It was put to Mr Alexander, the evidence of the soccer players. It was clear from his evidence that the Kewtown Youth Movement had actually left the building, that it is possible that someone could have thought that those people had left after the meeting had been adjourned, and that nobody in the position of Van Zyl, Botha or Hardien, would have known that the other people were coming to have a meeting, because they had got together across the street at the hall and only there decided that they would go and have the meeting at that particular time, at the hall.

So the effect of that is that the Committee driven to a conclusion that the applicant, insofar as he is concerned, has made full disclosure of the relevant facts.

Mr Chairman, that concludes my submissions and ... Yes, and as my instructing attorney says, Mr Chairman, he's come here, he's made disclosure of these facts, why would he not make full disclosure? He made full disclosure in regard to worse incidents, for instance the Nietverdiend incident, the Ribeiro incident, where he was peripherally involved only, but those are serious matters and amnesty was granted there to all the applicants in those particular cases. Why would there not be a disclosure in this particular case where no real life danger was done to any of the people?

MR LAX: Mr Wessels, we are faced with that argument so often and it will shock you to know that many people have come before this Committee and we're dealing with one or two matters, and it's been proven before us, sort of almost beyond a reasonable doubt ... this is conundrum that has faced us many times, people come before us, they tell us one version, when they could so easily have come and told us the truth. We don't know why people do a thing like that, but it's something that happens often before us and it's in one of those peculiar quirks of human nature, I think.

MR WESSELS: Mr Chairman yes, and it's very important that one has regard to that in this particular case, because as I started I said that especially in the case of Verster, there's a public perception that surrounds him and one becomes sceptical if one sits in these proceedings, if you sit in criminal courts day in and day out, one becomes hardened against a lot of excuses that are advanced in these sorts of forums and especially in the case of a person with a certain profile. And that's why you have to disassociate yourself with that sort of preconceived - and I don't mean it in a derogatory sense, but that sort of feeling that you know, it's probable that he's not telling the truth, he came here coming to tell lies. You must take it as a new matter, give him the benefit of the doubt, if there's a doubt.

MR LAX: You can rest assured that we look for the positive in every single person who appears before us.

MR WESSELS: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Wessels. Who is going to follow Mr Wessels? Do you want a five minutes stretch legs adjournment? We'll just have a short adjournment and then the applicants can, amongst themselves, decide who is going to be next.

MR MARTINI: Mr Chairman, we've decided, we're going the order of the hearing.

CHAIRPERSON: Okay. Yes, we'll have a short five minute adjournment.

MS LOCKHAT: All rise.



CHAIRPERSON: Yes thank you. Mr Martini.

MR MARTINI IN ARGUMENT: Chairperson, thank you. Chairperson, as the Committee is aware I represent Mr Abram van Zyl, otherwise known as Mr Slang van Zyl.

Mr Chairperson, I do not want to, in the interests of time, rehash all the law that Mr Wessels has dealt with, but I associate myself with the arguments. My Heads, I do believe, are rather comprehensive.

Just to touch on the issue, Chairperson, of the purpose of the Act. The purpose of the Act is to grant amnesty and one shouldn't be bogged down in minor technicalities or minutia relating to certain facts pertaining to the incidents. And it's my submission, as I've elaborated in the Heads, that the Act should be given a broader, a more liberal interpretation, it shouldn't be interpreted restrictively. And it must be interpreted in a benevolent manner.

After all it's the applicants that come, Chairperson, to this Committee and incriminate themselves. There shouldn't be, to touch on the test of satisfied, there shouldn't be a heavy burden placed on them. And my submission is that, as Mr Wessels stated, the test is, it must be reasonably possible, the version.

What appeared to be a contentious issue, Chairperson, I've submitted in my Heads the proportionality. I do believe that Section 20(3) are indicia, they're not requirements, they are there to assist of factors to be taken into account in order to determine whether the act was political or there was a political objective involved. And I also say proportionality does become irrelevant, as raised in my Heads, because I say in these facts one has to look at what happened, was the result a grave result? In most instances I'd say it was not, save possibly for the Early Learning Centre, it's a bomb, it destroyed the building, but still there weren't deaths, the results were not tragic. And it's my submission that proportionality has no relevance.

But insofar as the Committee may believe there's relevance, Chairperson, one has to look at the situation which prevailed. The situation, it is submitted in my Heads, was a situation of war, it wasn't a simple political disturbance or uprising. People were being burnt alive in this country, bombs were going off, innocent civilians were being killed, from actions carried out by the liberation movements. It's tragic but it happened. That's our history and it's regrettable that it happened.

To revert back to the question of full disclosure, Chairperson, I associate myself with Mr Wessels, but at the same time it's quite clear from the wording of the Act, that there must be a full disclosure of relevant facts relating to the act for which application is made for amnesty. Now on the clear reading of Section 20, it says:

"The Committee, after having considering an application for amnesty, is satisfied that the application complies with the requirements of this Act. The act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflict of the past, in accordance with the provisions of (2) and (3) and (c), the applicant has made a full disclosure of all relevant facts"

and it goes further, which my learned colleague did not elaborate on:

"it shall grant amnesty in respect of that act, omission or offence"

so it refers back to (b). So it's quite clear that there must be a full disclosure of the relevant facts, but that must also be of the relevant facts pertaining to the act for which an applicant applies for amnesty.

CHAIRPERSON: Ja, but I think one also - it's those words that led to the reversal of the so-called "ANC37" decision, that prevents the granting of so-called blanket amnesty. You've got to only grant amnesty in respect of certain specific identified acts. That's quite clear. But does that mean like you interpret it as well? For instance, when you've got a conspiracy to kill 30 people and the conspirator only applies in respect of one, are the other 29 completely irrelevant?

MR MARTINI: The disclosure relating to those facts?


MR MARTINI: If the co-conspirator applies for a particular act, the point I'm trying to make Chairperson, is if a party applies, he's not seeking blanket amnesty from the Committee, he takes the chance.

CHAIRPERSON: Yes, but what I'm saying is, are those words not contained in the Act, to prevent the granting of blanket amnesty, rather than to restrict, in all cases, the Committee from taking considerations of secondary facts that might be relevant to the subject matter concerned, like in this conspiracy theory where you conspired to kill a whole bunch of people but choose only to apply in respect of one?

MR MARTINI: No, I submit a twofold argument on that basis, the Committee can't grant blanket - if the Committee grants amnesty to Mr van Zyl, for example, for the acts, it can never be said that he's got blanket amnesty for other conspiracies which the CCB might have been involved in, because then we're come into all different tests. So he can't have his cake and eat it. He can only apply and get amnesty, full amnesty, for the acts for which he applies. And he's got to make a disclosure in respect of those acts, because he takes his chance. If the Committee finds well I believe there was evidence you ... and you don't grant amnesty, Chairperson, then possibly if the Attorney-General decides to prosecute, there's a prosecution. That's the chance he takes. But my submission is yes, there's no blanket amnesty once the Committee has granted amnesty. If the Committee grants amnesty, no applicant, in my view, can allege later on a totally different act and say well I got amnesty.

MR LAX: Just on the issue of proportionality, I'm not sure I understand you correctly. You're saying that - this is what I thought you were saying or arguing, that because the end result was not particularly drastic, proportionality doesn't come into it? Isn't the issue of proportionality relative to the intended result, whether it happens or not? That's what we're dealing with here, is a conspiracy. And so that when you're dealing with conspiracy the fact that nothing resulted is irrelevant, what is relevant in that context is, was the intended result proportional to object to be received? - intended.

MR MARTINI: I say it is irrelevant, but if it is relevant, if the Committee considers it relevant, then I say in any situation which prevailed in South Africa, my submission is, which was a war, the acts would be proportional. After all, it was not a conventional war. The Truth and Reconciliation Commission itself found that the war came into South Africa. And in such circumstances as in Rafollo's case, which I quote in my Heads, in a war situation which prevailed in South Africa, which was an abnormal situation, maybe it is justified to kill a political opponent, but one would never, generally, in a civilised society justify the killing of a political opponent if there was no general war prevailing, or circumstances prevailing at the time.

That's why in my Heads, Members of the Committee, I say the Committee must attempt to judge the applicants in this case, Mr van Zyl, for the deeds and try and judge them at the time that prevailed 12 years ago, not today in a democratic society where we can reflect and say well, the deed was terrible, to think of killing somebody was a terrible thing. One's got to attempt to place itself in the applicant's position at the time. And at the same time my submission is, even if proportionality does become relevant, which is not a requirement, the deeds of the applicant, the acts were proportional to the overall objective that the CCB attempted to achieve. After all it was breaking of a window to the elimination of an individual and it was, to put it as Gen Webb's version was, not total destruction, maximal disruption of the enemy.

CHAIRPERSON: Sorry, just before we proceed and I should have raised this when Mr Wessels was arguing, but I don't think it impacts on the argument, the question of the foetus incident. We've a lot about it at the hearing, received evidence although it wasn't set down as one of the incidents, in the victims' Heads they suggest that be portion of the decision in this matter. Are we all agreed on that, we include it in the decision in this matter?

MR BIZOS: ...(inaudible - no microphone)

CHAIRPERSON: I think so, yes.

MR MARTINI: Chairperson, I'm not sure that all have agreed, I don't know. I thought Mr Wessels raised the issue in his argument.

MR WESSELS: My client didn't apply for that, so I'm not really concerned with ...(intervention)

CHAIRPERSON: I think it would be convenient if we, that's my personal view ...

MR MARTINI: Chairperson, my problem with that is, not to prejudice my client, is a decision was taken by the Committee, one can find it, where the Committee stated it would allow these questions, but they would not be taken into consideration in dealing with that aspect. More particularly since in terms of the Act, the applicants are entitled to be given notice. They weren't, they were actually told this is going to be dealt with in chambers. So it is - there's been a lot of surprises during these hearings and at this late stage ...(intervention)

CHAIRPERSON: No, they can be dealt with in chambers then.

MR MARTINI: Although Chairperson, I've placed it in my Heads, but not in great detail.

MR LAX: Can I ask this question just in this issue. Is there any point in not dealing with it now, arising out of all the evidence we've heard? Is there any prejudice to anybody that you can possibly think of, apart from possibly the victims in that matter, who probably weren't notified specifically, that it was going to be heard? But in any event they wouldn't have received notice if it had been dealt with in chambers.

MR MARTINI: Well there could be prejudice to the applicant, he wasn't prepared fully on that issue. Witnesses could have been called on that issue, I don't know. If Bishop Tutu would have testified, what he would have said, we don't know. I'm not trying to be difficult, Chairperson. You know you're putting me in the situation where I do not want to prejudice my client because of the way these proceedings have been conducted and at this late stage to say, well let's also include it. I know that the, if we can call them Respondents, are suggesting in their Heads that the Committee revoke its decision. Now I submit that would be improper. That's the only submission I can make there, Chairperson.

MR BIZOS: ...(inaudible) that a decision to hear the matter in chambers is not a final decision but a procedural matter. And we submit that there is no prejudice to any of the applicants. If anything, if the result is that they are granted amnesty, it's in their favour. If they are refused amnesty, they are not in any different position. But I do not believe with respect, that this Committee, having heard the evidence, having received written argument by the person who is now raising the objection, on that issue, that you should not make a decision on the evidence that has been presented here. If you're going to do it in chambers, are you going to disregard the evidence that has forthcoming?

I think that it would be incorrect to do so, that you can't disregard that evidence. So there has been no decision on the amnesty yet, if the applicant feels that he's in any way disadvantaged or prejudiced, there is still time for him to undo the prejudice that he says that he has suffered. What prejudice has he suffered by the additional evidence that has been placed before the Committee? He's had an opportunity to cross-examine on it, his client has responded to it.

CHAIRPERSON: It's also difficult to imagine what further evidence could be led on that matter, because the Archbishop was away. I suppose the only other evidence would be the person who found it hanging in the garden.

MS LOCKHAT: Chairperson, if I can be of assistance here. What I can do is contact the Archbishop, because he's basically the only person that's being prejudiced here, that the baboon foetus incident, him being a victim. So I can clarify with him whether he has any opposition to us making a decision without him being here at the hearing, Chairperson. So I think that's the only person really that is suffering prejudice in relation to that.

CHAIRPERSON: And he can read the transcript of the evidence if he desires.

MR MARTINI: Sorry Chairperson, I'm trying to find it, but there was evidence by Mr Bizos that this was possibly a Region 9 project, so there's plenty prejudice. I'm trying to find it. Mr Bizos quoted ...(intervention)

CHAIRPERSON: No, but prejudice as between it being dealt with in chambers or this Committee just dealing with it, whether we ... the only prejudice would be that we might have to listen to argument on it.

MR MARTINI: Not necessarily, the Respondents are contending that there was a five point plan. Now Mr Bizos referred to this case where they say it was a Region 9 project involving this five point plan. We know Mr Barnard, who I didn't question, says: "Well, Mr van Zyl told me this was part of a five point plan". There is substantial prejudice, but I can't ...(intervention)

CHAIRPERSON: Yes, but that's in the documents. If you read Barnard's statement he also makes reference to the five point plan. It's hearsay.

MR MARTINI: Hundred percent, it's hearsay. But one might have to call the witnesses from the case Mr Bizos referred to. Chairperson, I'm not going to make an issue, I just do believe it would be improper and the Committee - Mr Bizos in their Heads, are asking the Committee to revoke it. Certainly, on the record I'm not agreeing to it, because I believe there's prejudice, but the Committee can make a decision.

CHAIRPERSON: I think at this stage you can proceed with your argument and then perhaps revisit this at the end of the argument.

MR MARTINI: Where was I, Chairperson?

CHAIRPERSON: You'd just dealt with the question of proportionality in response to Mr Lax's question to you.

MR LAX: Yes, and you'd onto full disclosure.

MR MARTINI: ...(sound cut off) ... on the issue of proportionality we know that in terms of the Groote Schuur Minute, which was accepted in Government Gazette number 12834, that those principles were attempting give a definition to a political offence. So the reason why I say that is they merely induciai as Mr Lax raised, I was unaware of the Botha Judgment and I'm indebted to Mr Lax, but it is my submission that are induciai, they are factors to be taken into account in determining if there is a political objective.

Chairperson, also on the issue of why the Act should be interpreted more liberally and widely I've referred in my Heads, the Act also talks about the Committee having reference to other acts repealed by Section 28 of the Act, all the Indemnity Acts, which similar provisions, and I elaborate upon that that some of them are similar to the Norgaard principle. That's all dealing with the political issue.

Now Chairperson, with respect to the requirements which Mr van Zyl must satisfy, it is clear that he was a member of the Security Forces, I cannot see how that ...(intervention)

CHAIRPERSON: That is dealt with in the argument of the victims, where they contend that he's not. So if you could perhaps deal with it, because it's going to be dealt with later to the contrary view, I'm sure.

MR MARTINI: I'm sorry, Chair, I just want to ensure the procedure, if we're going to reply or if we're having one shot or how the proceedings are going to take place.

CHAIRPERSON: Well you'll be given an opportunity to reply in the normal course of events, but you can anticipate, because we've got the Heads ... and also in the interest of saving time, as Mr Lax says, what arguments are going to be coming. So we know that the victims briefly have said that they were not members of the Security Forces as contemplated in the provisions of 20(b), because of the fact that they'd resigned they weren't subject to military discipline, etcetera, etcetera. I'm sure you've read that.

MR MARTINI: Yes, Chairperson. With respect, where that evidence to contradict all the evidence of the applicants - the General stated CCB was a unit of the Special Forces, forming part of the South African Defence Force, the budget came from the South African Defence Force, they were paid by the South African Defence Force. Possibly one can say by the very nature that they were covert, they weren't uniform soldiers but they clearly fell within the ambit of the Security Forces. How somebody could argue that they didn't after all the evidence, is beyond me. They were controlled by a General, and according to the General, the footsoldiers so to speak, the applicant wouldn't know this, had to revert to higher authority, to the Minister of Defence, for certain instructions. If Gen Webb's version is to be believed. If someone had to be killed, I think his evidence was he had to revert to a higher authority which would be, I'm not sure if it was the General or the Minister of Defence or the Chief of Defence. But quite clearly the Minute Mr Bizos handed in, L1(?) refers to the CCB, where the General signed it, where he tried to redefine murder. That's raised in my Heads, Chairperson. So with respect, I cannot see how any member of this Committee could ever find that the applicant was not either an employee of the State, or a member of the Security Forces. Based on the evidence we've heard.

CHAIRPERSON: There's a question of agent as well in Section 20(3)(e).

MR MARTINI: But you can also look at Section 20(2)(g) which says:

"a person associates himself with"

CHAIRPERSON: And 20(3)(e).

MR MARTINI: And 20(3)(e), that deals with the factors to be taken into account, where it does talk about:

"an agent or supporter"

Correct, Chairperson. I actually thought during the proceedings that that was common cause, so it was quite a surprise when I saw it in the Heads of Argument.

Chairperson, it can never be said that Mr van Zyl acted out of malice or personal gain. In fact, on the issue of malice, it was never even put to him, he was never challenged that his deeds or his conduct was out of malice to the victims.

CHAIRPERSON: But personal gain has been put in issue, in the victims' argument it's argued that the motivation in resigning from the Police Force and joining the CCB, was a business decision, betty pay, better package and then also the question of the performance bonuses, actually doing it ... coupled with the fact that, I think it's said in the argument, that they didn't have strong political objectives, they were working more for the money than anything else.

MR MARTINI: That would touch to the issue that it's not political, if you read the Section. That the act was not political:

"but does not include any act, omission, offence committed by any person referred to (2), who acted"

And subsection - sorry Chairperson, with respect, I've got confused there, refers to Section (2), not (3). Chairperson, the fact is, in the Police you he a salary. He says he made a decision to move, because his words were, I think, if I recall his evidence correctly, it was a business decision, it was a career move "I was moving to the Army", it was - I don't think the packages were vastly different ...(intervention)

CHAIRPERSON: It was far better in the CCB, clearly.

MR MARTINI: Well from a financial.


MR MARTINI: And he saw it also as a career move. And another issue that motivated him was, if Chairperson will recall, was he didn't want to move to Pietermaritzburg, because of the dispute he had had, just in summary, I think with the Attorney-General. He wouldn't testify specifically what the Attorney-General, something to that effect, wanted him to testify.

And what's also important Chairperson, is if you'll recall he was questioned, it's not disputed, when he joined he did not know the intricate workings of the CCB. If you will recall they went on a course and only then did they start finding out what the CCB's work really entailed. My submission is clearly that his acts were not motivated by personal gain or malice. Were his acts authorised? Was he acting in the course and scope of his duties or within the course and scope of his implied or express authority? My submission is that it was. And once again also one can have reference to Section 20(f). He believed that he was acting, he on reasonable grounds would have believed that he was acting in the course and scope of his authority.

If the Committee recalls this, the nature in which this clandestine and secretive organisation worked, you had the General, the Managing Director, the Coordinator and the Regional Manager, Mr Burger, and what I'd term the footsoldiers, Mr Botha, Mr Maree and Mr van Zyl, in Region 6. They received, Mr van Zyl received his instruction from Mr Burger or Basson, who in turn had received the instruction from Mr Verster, who in turn all must have believed that he had met with the General to authorise the projects referred to in the application. Because the footsoldiers did not meet with the General and Mr Verster when a decision was taken to go ahead with the project.

When I questioned Gen Webb, Chairperson will recall that he conceded. I said: "Notwithstanding the dispute between yourself and Mr Verster, as to whether you authorised Omar or other disputed projects (I said), would the footsoldiers of Mr van Zyl have believed that they were authorised to carry out the act?" And he had to concede it because of the nature of the way the structure worked.

They didn't know whether Verster and Webb met, so once Mr van Zyl got the order from either Mr Basson or Mr Burger, he believed reasonably, could only reasonably have believed that he had the authority to go ahead. Because if you remember further in re-examination we tried to clarify the issues and it does touch on issues raised by - can we call them the Respondents, Chairperson, no disrespect, it's just a shorter word, was suggesting that Mr van Zyl took the decision to eliminate, say Minister Omar, to bomb the Early Learning Centre. If you'll recall in the re-examination where we attempted to clear up, there was some doubt by the Committee how exactly it worked.

The decision did not come from Van Zyl. Van Zyl receives an instruction to do a pre-study for the purposes of, in the case of Mr Omar, elimination. He does the study in-house and it goes further up. And if you'll recall Mr van Zyl's evidence, the decision then actually to carry out that elimination is still not final yet until it comes back and they say go ahead and eliminate. So he never makes that decision. Clearly, he acted within the course and scope of his duties.

CHAIRPERSON: Ja, but not in all respects though, even on his own evidence, you know when he starts involving Mr Barnard.

MR MARTINI: Chairperson, that's irrelevant in my submission, that's raised by the Respondents, they contend that he could never have acted with authority, first of all, because they say he broke the rules. Now that's not what the Act - the authority is not for the rule, it's for the deed. So he had authority for the deed, to prepare a study and thereafter carry out the elimination, the bombing, arranging to have - bring up unaware members to attempt to kill Mr Evans ...(intervention)

MR LAX: Sorry, so are you saying that once he gets his authority he's got carte blanche in how he does it? In a nutshell.

MR MARTINI: Chairperson, if I can answer that ...(sound cut off) what I'm saying is, the authorities for the deed. So if they said: "Shoot Mr Omar", the project provided to shoot him, and he had the Minister's stand - thank God this didn't happen, he had the authority. The authority was to eliminate. In the course and scope of his duties? The course and scope of his duties were to break a window or eliminate the person.

MR LAX: But it couldn't possibly have been that. In this case the course and scope goes to the nature of his employment and that is, where does he reside and where does his authority come from, but his authority to do act X, is only given with regard to the specific authority for that act. So in other words, that would in all accounts, if one looks at it in a logical way, one would say: "I did the pre-study, the pre-study was approved, I was told go ahead with the act as set out in the pre-study, or as varied by any other suggestions". That is the plan, your instruction is to follow the plan. Are you saying it doesn't matter that he didn't follow the plan, as long as the instruction was to kill?

MR MARTINI: Correct Mr Lax, because it's the authority for the act. There must have been authorisation - let me put it this way, if Mr van Zyl had put in his pre-study: "I'm going to wear takkies when I collect Peaches" and he wears leather shoes. The plan might have said he was going to wear takkies for whatever reason, and if he wore leather shoes ...(intervention)

MR LAX: But with all respect, we're dealing with material issues, not irrelevant issues.

MR MARTINI: Well let's change it then, there I took the ridiculous example. If the plan says you must eliminate Minister Omar, and his plan provided for the using of a Makarov pistol and he had him stabbed, it could never be said that he was not acting within his authority. If the act had been carried out and the result achieved, Minister Omar would have died, whether by gunshot wound or stabbing.

MR LAX: Look I think we're missing the point here a little bit, frankly, and that is there's a difference between acting in the course and scope of your employment and then getting a specific authority to do specific things. And that's really what we're trying to separate out here. Course and scope simply implies where do you reside, what is the nature of your duties? Whether he had specific authority or not is a question of fact in each instance and the two are quite different determinations in ...(sound cut off)

MR MARTINI: I agree, but his duties entail arranging the assassins, that was his function within the CCB. Mr van Zyl ...(intervention)

MR LAX: Yes, but you see the Chair's question to you was, what if he broke the rules?

MR MARTINI: That goes to authority. Now the rules are irrelevant because the authority is for the act, to kill, to bomb. If Mr - and I come to elaborate on that, by example I use, the authority was eliminate Minister Omar. Let's assume Mr van Zyl carried it through but had him stabbed, he still had authority to kill to achieve the result.

Chairperson, my Heads do elaborate on the other criteria relating to political objectives, I'm dealing with the actual issue, the full disclosure. To take on the Respondents, as we seem to have been doing, are alleging that because Mr van Zyl has not disclosed other deeds, that alone is not a full disclosure and he must fail. I submit we've dealt with that, it's only a disclosure of the relevant facts, because he's not seeking blanket amnesty and he's not entitled to blanket amnesty if he receives amnesty for the acts for which he's applied.

Now has Mr van Zyl made a full disclosure of the relevant facts? I think one then has to go ask the question, what are the relevant facts? Now in order to determine what are the relevant facts, it's my submission one has to look at the purpose of the Act. The Act is to establish the truth, what went on. And it must be distinguished from this case, because there's been great atrocities, Chairperson, where families have lost their children and they've never found them, they've never known what's happened to members of their family. I think the purpose is to try to tell them what happened, and it's sad, it's our history. In this case, the relevant facts are in respect of the deeds that you have committed, what are they? Come tell us what you did. A relevant fact is:

(1) I planned and I was instructed to carry out the assassination of Mr Omar.

(2) I never planned but I was request to arrange for unaware members to fly up to Johannesburg, to arrange to kill Mr Evans.

(3) I was told to hang up a foetus at Bishop Tutu's residence. Not part of the plan. I was told and I did a pre-study on the Early Learning Centre and to bomb the hall.

Now he's disclosed, that is what he has done.

CHAIRPERSON: Yes okay, what then is the real purpose of having a hearing if that is all that has to be disclosed, you know that I was involved in the bombing of the ELC, or the conspiracy to murder Adv Omar? What is the situation if the person comes and then at a hearing gives evidence which is found not to be credible, but discloses those basic relevant facts? For instance, we haven't made any finding obviously because we've got to listen and then deliberate, but there's fairly serious contradictions between the evidence of Mr Barnard and your client with regard to the Omar incident.

MR MARTINI: I'll get to that evidence.

CHAIRPERSON: Your client has come and said okay, there was a conspiracy to kill Mr Omar, I did actually take active steps. So he's made a full disclosure of those relevant facts, there's no doubt about that, but what if it's found that he hasn't been frank and honest in respect of all the matters concerning that incident? Can we just ignore him and say, okay we'll sift it through and those relevant facts that fall through the sieve, if they're sufficient to cover the crime, it's okay, forget the rest?

MR MARTINI: Chairperson, what I submit that's - everyone has ignored that, what are the relevant facts that he must disclose? The relevant facts I submit, would be in Omar. If he had said I only monitored him, he wouldn't be frank and honest, because what you're trying to find out is, was there a plot to eliminate Minister Omar?

Now let's just assume Minister Omar had died, the relevant fact would be for Mr van Zyl to come and disclose to this Committee, in the interests of the victims, to tell Mr Omar's family, I killed your husband. That's the relevant fact, not who did it, it's my submission. But if the Committee finds that who did it on your instructions, is relevant, I will touch on that as the second leg dealing with the dispute between Mr van Zyl and Mr Barnard on the Omar incident.

Well we can go straight there, Chairperson. ...(intervention)

MR LAX: Just before you do, there's another fundamental important relevance in terms of the Act, and that is, why did you do it? It goes to the very root of the whole thing.

MR MARTINI: Well that touches on the indicia for the political objective, because the Act doesn't say why did you do it? It says:

"take into account in deciding if it's a political objective, the motive, the context, the proportiona-lity"

But that I thought, is not a requirement, it's factors that the Committee must take into account in assessing if there was a political objective. Well then I must go back now to political objective again. I thought it is clear. The political objective was clearly, Mr van Zyl repeated, protection of the sovereignty of the State, destruction of the enemy of the State. The enemy of the State being the ANC and its affiliates. But now we're touching back onto issues which are criteria which the Committee must consider, not requirements, as to whether the act was political.

Now it's my submission and it's dealt with in my Heads, the act was most definitely political. He tells you: "I was acting on instructions. I was a supporter of the National Party Government. I wanted to protect the sovereignty of the State. In South Africa, we have the evidence of Mr Webb, the TRC's Findings, there was a war and this was part of the strategy of the South African Government, to resist or counter the armed struggle that was being waged by the liberation movements, in the people's war within. It was to counter and resist that struggle. The CCB would appear to have been an additional creature created by the government of the day to resist the armed struggle that was taking place. We were in a State of Emergency where certain deeds were committed.

But to answer your question, Mr Lax, that would go to whether it's a political objective. But the relevant facts, it's my submission, these hearings are peculiar because fortunately I would say, there was no - that's Chairperson, the indicia also say look at the gravity of the act. There was no serious tragic result. Now had there been it would have been imperative, it would be relevant to tell Mrs Omar who killed your husband. Or, first leg, your husband was killed by the CCB Region 6. The victim wants the truth, they want to know what happened. And Mrs Omar, Mr X killed your husband.

But I'm going to move back now to the discrepancy with Barnard. Chairperson, I find it astounding that the Respondents would seek to suggest to this Committee that the only credible witness at these hearings was Mr Ferdi Barnard. Let's analyse Mr Ferdi Barnard. Self-confessed liar for 24 years. Triple convicted ...(intervention)


MR MARTINI: Now he went later - in answer to Mr Wessels, he said: "Mr Wessels, 24 years". ... triple convicted murderer. Drug addict. Alcoholic. A person who deceived. And let's stop there. He has deceived Judges, he has deceived his own attorney, and I would venture to suggest he might have deceived certain members of the public too when he testified. And it's my submission, this is not a stupid man, this is a very intelligent man who has been sitting in solitary confinement, plotting. But let's go further. A man who had no problem in describing how he bashed a Mr Francis's brains in that the brain exploded.

A man who filed an application with this Committee and says to this Committee: "Hang on, up until this stage that my applications was filed, I have lied. I've lied for 24 years of my life. I've lied in every court. I've lied to this Committee. I've deceived my own attorney, because he's filed my application and what I've put in there are lies. I deceived Judge Stegman." What weight could any person of logic, intelligence and reason, place on this man's evidence?

It doesn't stop there Chairperson, because he has a motive. What does he say? "Mr van Zyl gave me 10 years." He has a motive to lie against Mr van Zyl. Very important. And it's my submission Chairperson, to go further, that he lied at these hearings. And I'll show as well - I don't believe I need to go as far as showing how improbable his version is. He has done his own job, he has told this Committee: "I've lied everywhere".

Now, I'm criticised by my colleagues for not cross-examining him. There's a reason. I would not dignify that man with cross-examination, because all you'll get out of his mouth are lies. How do you cross-examine a man who says to you: "I've lied for 24 years. I've done crime every day of my life. I've lied to this Committee. I've lied to everybody"? When do you believe you're going to get an honest answer out of this man? Never, Chairperson, never.

Now let's touch - in essence, the discrepancy between Mr van Zyl's evidence and Mr Barnard's evidence which was placed on record by myself and it was disputed, and on this instance you will recall Mr Bizos had placed on record that they reserved the right to possibly recall Mr van Zyl. Mr van Zyl was never called. Mr Barnard's version was never put to Mr van Zyl. He sat here when Mr van Zyl gave evidence, his counsel sat here ...(intervention)

CHAIRPERSON: But I mean, Mr Barnard's version only came to life after Mr van Zyl testified. On Mr Barnard's own version he said that he had this revelation during the course of these proceedings ...(intervention)

MR MARTINI: No, no, that was after van Zyl had testified. Yes, I agree with you Chairperson, yes he changed his mind, but his version was never put to Mr van Zyl. Mr Bizos said they wanted to recall Mr van Zyl. They never did.

MR BIZOS: ...(inaudible - no microphone) permission for Mr van Zyl to go and what we said at the time was that he may be required to give further evidence. That's all that we said, Mr Chairman. And we will address you in due course, as to has a duty to call evidence in this case. So that we can ...

CHAIRPERSON: We know for a fact that he wasn't recalled and that it was mentioned that he may be required.

MR LAX: But just in a nutshell, your position is that the man is an out and out liar, there was no point in cross-examining him, because you wouldn't have got anything else but lies and therefore you didn't.

MR MARTINI: One hundred percent, but I'm going further and I'm saying this Committee cannot place a tittle of weight on his evidence. I mean it's not supported by the applicants. If the Committee accepts his evidence, does the Committee want to give a message to the outside world that we accept the evidence of self-confessed liars, convicted criminals, drug addicts ...(intervention)

MR LAX: Sorry, with the greatest of respect, we have had hundreds of self-confessed liars come before this Committee and many of them have received amnesty, some haven't. The question has been, have they explained themselves? Have they explained why they lied? That's really the crucial issue. You'll surely concede. But just because someone's a self-confessed liar it doesn't mean they're not telling the truth.

MR MARTINI: If he doesn't have a motive.

MR LAX: Well even if he does have a motive, the question is you weigh it all up in the balance.

MR MARTINI: But Mr Lax, you're missing my point, because in order for the Committee to believe Barnard, you have to reject Van Zyl.

CHAIRPERSON: But then one - yes, because look Mr van Zyl's also admitted to telling lies, committing perjury in certain statements he's made, etcetera.

MR MARTINI: Chairperson, he said - we'll get to that, he said he lied in the Section 29. Now one must understand Section 29 statements, they're draconian legislation which ...(intervention)

MR LAX: You can rest assured we are very familiar with Section 29 statements.

CHAIRPERSON: But just on this question, Mr Martini, we here what you say, Mr Barnard hasn't got a good track record, there's no doubt about that and I don't think that's in issue, but he's come and he's given a version and he's explained why he's turned and why he's now decided to make a clean breast of things. Now one's got to take a look at that. Then we've got two conflicting versions between - relating to questions of fact, relating to certain details, particularly in the Omar incident. Then we get for instance, the question of the Makarov pistol, now we've got two different versions, one from Mr van Zyl, one from Mr Barnard. We've got two conflicting version as to why Mr Barnard was involved in that operation, one from Mr van Zyl who says he was there just to monitor and the other from Mr Barnard who said no, he was there to kill. Two split versions on fact. Now are you saying well, because of his bad track record, because of his being a self-confessed liar, a criminal, etcetera, we don't have to even go beyond that? Because if one then starts looking at probabilities, or even possibilities if you want to go down that far, let's just take the question of the Makarov gun, what's more probable or possible? That Mr van Zyl phoned Peaches and said: "Peaches, please get rid of that gun"? And the silencer ... What's more probably, that he was brought in to monitor and paid R7 000 to monitor, to sit in a motor car and look? That sort of thing. What I'm saying, are you saying we needn't get down to doing that exercise of determining who is giving the correct version?

MR MARTINI: Chairperson, I was going to get there, because even on the probabilities and on his version you can't accept his version. But let's start with the Makarov pistol. What does Mr Barnard say? Now let's start at the beginning with the inconsistencies. His first statement in Section 29, which I don't place much weight on, because I appreciate those statements are under duress and there's a purpose in making those statements. And I submit one has to have reference as to what was happening at the time, people were being arrested, weren't sure if the government was going to assist them, what was going to happen, what do we say, what don't we say?

But if we take his statement in November, what does he say? He talks about Dirk. Nowhere in his statement that I could find, does he say he was actually hired to kill Mr Omar. What he says in his first statement is in his second statement, where he identifies Mr van Zyl, and that's one question I asked Mr Barnard, I said: "So when you made your second statement in December '89, you wanted to expose Mr van Zyl", and he says: "Yes". He doesn't alter that statement. If you read it carefully, Chairperson, in bundle B I think it is, he says: "Mr van Zyl, (1) offered him R50 000 to eliminate Minister Omar", but then he says he was joking and he says he would never do it. So now in December he hasn't altered the version, he hasn't come and said: "Nonsense, Mr van Zyl hired me to kill Minister Omar". He says Mr van Zyl was testing him. Now why is it improbable? The budget was R15 000, where was Mr van Zyl going to get R50 000 from?

MR LAX: The budget was R30 000.

MR MARTINI: Not for Omar.

MR LAX: And R35 000 in another instance - no, hang on that's right. I beg your pardon.

MR MARTINI: R30 000 was for ...

MR LAX: Yes, yes, that's fine.

MR MARTINI: Oh sorry, Chairperson. Just to get back to my train of thought ...

MR LAX: You were saying the budget was R15 000 for Omar.

MR MARTINI: Not R50 000. But Mr Barnard himself says he was joking in that statement. Now, in his evidence I have been unable to find anywhere where he says "I was instructed to murder Minister Omar". What he does say is: "From then on I knew I had to murder Minister Omar." Now, what is this man doing? It's the easiest thing to change his version. If you follow his version, it is in line with monitoring. Which Mr van Zyl says he hired him because he wasn't sure what Peaches was getting up to and he wanted Barnard to go and maybe revert to Mr van Zyl and say why this project couldn't be done, what is Peaches getting up to.

Now to answer Mr Lax's question of the R7 000. He was not paid R7 000, that's Mr Barnard's own evidence. He said he was given R7 000 to cover his costs, air tickets to Cape Town three times. Hotel accommodation at the Inn. He wasn't paid R7 000, it was to reimburse him. If you'll recall the evidence. And that's Mr Barnard's evidence.

CHAIRPERSON: Yes, but it cost R7 000 to involve him in the operation.

MR MARTINI: Conceded, Chairperson, but not to kill the Minister.

Now let's look at the further improbabilities. Mr Barnard says Mr ...(intervention)

MR LAX: Sorry, just in summary, because you've been beating round the bush here, what is the probability you're referring us to, just so I'm clear on it?

MR MARTINI: His version is totally improbable that he was hired to kill Minister Omar.

MR LAX: Because he wasn't paid anything?

MR MARTINI: Not because he wasn't - if you'll allow me to elaborate I'm going to submit he was not even given the gun. The only version is that he had to monitor. Judge Els accepted Mr van Zyl's evidence. A Judge in a trial has accepted Mr van Zyl's evidence. What did His Lordship Judge Els find? He found Mr van Zyl's evidence acceptable. And what did he find about Barnard? He says Barnard himself conceded that he was part of a conspiracy to murder. That related to the monitoring, because the Judge asked him: "But did you know the plot involved killing him?" He said: "Yes". So let's stop there.

The Judge further finds in that case that in all probability what Barnard tried to do, and it's my submission, but I won't elaborate on this, is what he did in Webster. He thought himself he wanted to kill Mr Omar, to enhance himself in the eyes of the CCB. That's what Judge Els found.

Now with the weapon his evidence and he himself realises that his evidence cannot be accepted Chairperson, what does he say in summary? He says: "I went down to Cape Town approximately three times". On the first occasion he says: "I knew from then on I had to murder", that's when the issue of the handing over the gun was dealt with. But then he says he complains to Mr van Zyl, he says: "Look, this is not going to work, I'm sticking out here like a sore thumb, rather find me an opportunity where Mr Omar is speaking, it's going to be easier". This can't be done, but yet he wants us to believe that on the third occasion he comes back, they've already assessed the situation and said it can't be done, to say he then went there to shoot Minister Omar, but he didn't do so because he came out of the house accompanied by a lady. Now let's stop with that statement.

We've heard Mr Barnard, Mr Barnard beats people's brains up and he sits here and he says their brain explodes. What reluctance would Mr Barnard have to shoot Mr Omar and the lady? After all, he shot Mr Webster in the presence of Maggie Friedman, and what did he say? He said: "Yes, and after I shot David Webster there was a car behind us, I was getting ready to shoot them as well". Since when would this man care about not killing others?

MR LAX: Are you saying that his explanation for why he didn't shoot at that point ... he would have felt bad about what he'd done in Webster? Are you saying that's nonsense?

MR MARTINI: Well let's go to Lubowski's incident. He says: "I was hired to monitor Lubowski" and he says: "I phoned Van Zyl ... I'm going to shoot him". And Van Zyl had a heart attack and said: "Don't do it". Why suddenly? With Lubowski he's got no instructions, he's only monitoring and now he sees the man, he says: "Now I'm going to kill him. And his evidence was: "Mr van Zyl had a heart attack, he said: 'You're not to do that'". Now he's got remorse in shooting Minister Omar.

MR LAX: Well you can't have it both ways. Van Zyl has a heart attack about Lubowski, but he's furious about Omar, so must we accept that evidence?

MR MARTINI: No, if you let me finish Mr Lax, I was going to come to that point.

Mr van Zyl never said: "You should have shot the woman as well". What I'm saying is, it's improbable, because Barnard - Mr van Zyl's evidence is not: "I told Barnard to shoot Minister Omar and the lady", that's Barnard's evidence. I'm saying you've got to reject that evidence, it's highly improbable.

MR LAX: Yes, but it's Barnard's evidence also that when he wanted to shoot Lubowski, Van Zyl had a heart attack.

MR MARTINI: I'm with you, I'm with you, but I'm saying why would Mr Barnard make a statement: "Shoot this woman that's with him"? Why would Barnard have remorse in shooting a man? His explanation is: "I felt bad after the Maggie Friedman incident". This man doesn't feel bad about anything. After Webster he bashed in Mr Francis's brains and you heard the ...(intervention)

MR LAX: Yes, you don't have to repeat it, you've repeated it about four times now.

MR MARTINI: ...(sound cut off) ... issue, the issue of the weapon. What does Mr Barnard say? There's different bundles, Mr Chairman will you excuse me. We can find it, but the gist of it is, in his evidence-in-chief Mr Barnard was questioned on the issue of the Makarov pistol. His evidence was and it's clear - I've got a note here, but I can find the bundle, at page 2668:

"I never asked to monitor Dullah Omar, as has been the case, I was requested to kill Dullah Omar, because the other persons had proven ineffective. Arrangements were made for me and a meeting took place with a Coloured gang member, one Peaches. I think at the Cape Sun Hotel or some place nearby. It was in the evening. Peaches ...(indistinct) after our discussion and returned and in my presence he handed over a firearm to Van Zyl. A Makarov pistol with a silencer. Which he removed from the box. Van Zyl gave the Makarov and the silencer to me. I hid it in the ceiling of my hotel room."

Very, very important words these, because if the Committee then refers to the cross-examination by Mr Bizos, and I submit Mr Bizos realised the slip because he asked him the question twice, he says:

"Who gave you the Makarov?"

he says:


Mr Bizos then asks him again:

"Who gave you the Makarov?"

and he says:

"I have no doubt, Peaches"

Now that's a material discrepancy on a weapon. But we'll go further - sorry, Chairperson, if you can just bear with me. Yes Chairperson, conflicted or referred to, page 298(sic), where Mr Bizos asks this question:

"Did the firearm come out of the possession of Peaches?"

"MR BARNARD: It came from the possession of Peaches and upon Slang van Zyl's instruction he handed it over to me."

in the presence of Slang.

"MR BARNARD: It was a Makarov pistol, a Russian manufactured Makarov with a silencer."

MR BIZOS: Are you absolutely certain it came from Peaches?"

Why does he ask the question this way? He realises the slip.

"MR BARNARD: I have no doubt about that."

But let's go further. He says he put the weapon in the ceiling of his room, and we'll find the words Chairperson, how improbable ...(intervention)

CHAIRPERSON: Hand back some weeks later and in the same room where he got ...(indistinct)

MR MARTINI: Correct, correct. And not only this, how did he know he was going to stay in the same hotel, that the hotel - and if he did get the same hotel, how was he going to know he's going to get the same room to retrieve it? Total - my submission is Mr Barnard never had the Makarov. And if I have time, Chairperson, he does state that it was returned to Peaches. And later he tries, he's realised the Committee's problem, in his evidence he suggests:

"Ja, it's absurd for Mr van Zyl to tell Peaches to get rid of it."

But what happened to the Makarov then, if Barnard had it? All that Judge Els found was it was a Makarov pistol, not the same one. And remember Barnard's evidence:

"I have more weapons that the CCB"

Why would he need to get a weapon from Mr van Zyl, on his version, and later he says he got it from Peaches?

CHAIRPERSON: I think it's a question of travelling in an aeroplane with guns and stuff, it's not so easy, you know if you need a gun in Cape Town, it's better to get it in Cape Town than to try to bring it from Jo'burg, especially if you're flying.

MR MARTINI: A possibility. But my submission is he's never had it, it was always in Peaches's possession, as per Mr van Zyl's evidence. So coupled with what this man is with the inconsistencies, I say in answer to Mr Lax's earlier question, you cannot accept his evidence above that of Mr van Zyl, where it is in conflict with Mr van Zyl's evidence.

But Chairperson, if the Committee wants to find, which I submit it cannot, and believe Barnard, then I say it's irrelevant. If the Committee finds that Mr van Zyl did not disclose this fact, the Committee cannot state that he has failed to make a full disclosure of a relevant fact. But the Committee will be hard pressed to accept Mr Barnard's evidence in that regard in the face of his admitted lies, doing crime every day. I'm sure this Committee hasn't hear people testifying: "I've done crimes all my life".

MR LAX: Yes, let's move on, we've heard that three or four times now and time is of the essence here.

MR MARTINI: ...(sound cut off) ... stressing the point, Mr Lax ...(intervention)

MR LAX: You have already though, let's just move on.

MR MARTINI: ...(sound cut off) ... insofar as it may be alleged or argued that the applicant, Mr van Zyl, and all other applicants, intended to kill, the Committee cannot make such a finding. And I refer in this regard to Mr Wessels's argument on the law on the Blom authority. Why? I submit, Chairperson, that the evidence of Mr Williams, the evidence of Mr Oesman Alexander support Mr van Zyl's version. And Mr van Zyl has told the Committee ...(intervention)

CHAIRPERSON: Yes, it's not actually the evidence of Mr Williams.


CHAIRPERSON: The statements of Mr Williams.

MR MARTINI: Sorry, statements of Mr Williams, because he hasn't testified, but he did put to the witness - Mr Williams himself says in his statement, unfortunately I don't have that statement to give a reference Chairperson, he says that he walked outside the hall, he went outside. He says the Kewtown Youth Movement terminated the meeting. Mr Alexander himself says the Kewtown Youth Movement terminated their meeting, which ...(indistinct) credibility to what Mr van Zyl says ...(intervention)

CHAIRPERSON: Yes, but I think it's common cause that they had finished the meeting, because when the bomb went off the meeting was finished. I mean there's no version before us to say that the meeting hadn't finished, the whole question was whether the people had left, had left the building.

MR MARTINI: Well Mr van Zyl says they'd left, the Kewtown Youth Movement clearly had left. What's important is Mr van Zyl, as Mr Alexander himself, could not have known that ... meeting there that night.

MR LAX: Well there wasn't just one meeting there, there were two meetings there, there was the football meeting and the other meeting. But really, the fact is there were people there, we know that, it's an objective fact. You're certainly not arguing there weren't people in there?

MR MARTINI: No, that's not my argument Mr Lax.

MR LAX: Yes. So the question then goes, Hardien went in there at your client's request and surely it must have been obvious that there were people in there.

MR MARTINI: Well Mr Lax, I don't know why you're say surely, because if you take the objective statement of Mr Blignaut and Coetzee, the soccer players, they contradict Mr Alexander, they say the hall was locked, which supports Mr van Zyl's version. They say there was no-one in the foyer. Now these people aren't activists. Mr Alexander confirmed he's a political activist. These are soccer players, they've got no reason ...(intervention)

MR LAX: Either way there were 15 people in the building.

MR MARTINI: Well we don't know that there were 15. If you accept the evidence there were 15, but I'm not going to dispute there was an injury, I'm dealing with the inference which the Respondents seek to draw and to say, 'you have not made a full disclosure because you didn't tell us you intended to kill'. Chairperson, I'm not sure how far I must go, because every now and then when I stress it ... but no such inference can be drawn. And one just has to look at the evidence, because another inference could be drawn. Yes, they didn't want to kill, but look at the proven facts, factually nobody was killed.

Now Mr Williams cross-examining Mr Hardien confirmed, yes Mr Hardien walked in and saw Mr Williams. Now if Mr van Zyl, who had a remote control device, wanted to ensure that they killed the people, why not press the button then? He's just been told: "I saw Mr Williams inside", kill him. Why would Mr van Zyl run the risk of exposing himself. He could have planted, for example, a bomb, a time-bomb and say look, 'I know the meeting's running from eight till nine, I let it explode at quarter past eight, guaranteed I'll kill them'. Why didn't he do that? Why does he take the risk to go there?

MR LAX: Well that's a very good question, because the plan was that he shouldn't go there and in fact he was instructed not to go there, but he disobeyed that.

MR MARTINI: Correct.

MR LAX: Look, the simple issue is that when we're dealing with what his objective was, his objective was to go there to blow up the building, but to blow it up in such a way that it would have certain consequences. That's what he testified. And the Objectors are basically saying, if I understand their Heads correctly, that that's simply not borne out by the facts and that the only inference you can draw is that that's not possibly true.

Now you relied on Hardien seeing Williams in there, but what Hardien says he did when he went into the building is to warn Williams that there's a bomb in the thing. I mean, do we believe that bit of evidence?

MR MARTINI: Chairperson, I'm not here representing Mr Hardien, for all I care you can - on the relevant facts, Mr Hardien can be believed on relevant facts, but whether Mr Hardien told Mr Williams there's a bomb in there, there's a dispute. Mr Williams says that's nonsense and they had a bit of an altercation with the use of the words that were used. But that's irrelevant, because to get - the objective once again is irrelevant, it's not a requirement, Mr Lax. But to come to the inference, how can the Committee possibly not draw another inference that the applicants and Mr van Zyl did not intend to kill? When? The facts are, no-one died. Touching on the Barnard thing about nails, the facts are there were no nails. Now that comes back to accepting Mr Barnard's version. Botha says he was the last person who put the bag in the haversack, there were no nails. Mr Steenkamp, the bomb expert who came to ... there's a statement by him - no nails. Mr Oesman who is the only victim who testified, didn't tell us there were nails. So ...

MR LAX: But it's common cause there weren't nails, the issue was that Van Zyl allegedly told him that. That's what Barnard said. Barnard didn't say there were nails, he said: "I was told there were nails".

MR MARTINI: Sorry Mr Lax, that's not common cause. Mr Bizos said there will be witnesses, not one, in a debate with Mr Wessels, that will testify there were nails. So it's not common cause. And we haven't heard any such witnesses, other than Mr Barnard.  So it's not common cause that there weren't nails, it's contended by the Respondents, they said evidence was going to be led ...(intervention)

MR LAX: It's not contended in their Heads, so let's just move on.

CHAIRPERSON: I don't think there's any basis on which we can find there were nails attached to the bomb, there's no evidence before us.

MR MARTINI: But then that's important, because then it affects the credibility of Mr Barnard, 'cause Mr Barnard says that and it's a question the Chair asked me earlier: "Well what do you have to say?" And I've been criticised for not questioning Mr Barnard on that issue. You see the dilemma, Chairperson?

MR LAX: It's a bit late now to be raising all these things if you didn't put them to him, but anyway ...

MR MARTINI: That's not the point I'm making, I've just been told that it's common cause there were no nails. Are you suggesting now Mr Lax, that the Committee might find there were nails?

MR LAX: Please just move on, I'm not suggesting that and I've already said the opposite.

MR MARTINI: So the issue Chairperson is, can the only inference to be drawn is that they intended to kill? I submit, no. For the reasons I've elaborated upon. There was no such intention, and the probabilities are against that intention, supported by independent facts. Independent facts and revival evidence, Chairperson.

In the circumstances, Chairperson, I submit that the applicant has complied with all the requirements of the Act and that full amnesty, both criminal and delictual or any delict or offence which may flow ...(intervention)

CHAIRPERSON: No, I don't think we're empowered to give partial amnesty, if we grant amnesty the effects flow from the Act. I don't think we would be allowed to grant amnesty, but exclude amnesty from criminal prosecution or delictual ... or make an order that the record, if he's convicted, doesn't get expunged. It's a consequence of it.

MR MARTINI: Chairperson, my first appearance and I'm not sure, so I just raise it in my argument. And I would like to conclude that it was a please and an honour to have appeared at these proceedings.

MR BIZOS: ...(inaudible - no microphone) to have an adjournment, could I raise a small matter of some importance to me?

CHAIRPERSON: Certainly, Mr Bizos.

MR BIZOS: In this lengthy argument there are no references to the record. I would appeal to Mr Martini to please turn page 52 of his Heads, in which he says" "For example, Mr Omar quite clearly from his position today, and as was conceded by Mr Bizos, was a high-ranking member of the ANC, involved in an armed struggle against the State". I have no recollection of ever having said anything like it, my learned friends that are acting with me have no recollection. If it does appear on the record, I would dispute it's correctness. So Mr Martini in this reference free Heads of Argument, at least find that reference for my benefit, Mr Chairman.

MR MARTINI: Sorry, Chairperson, if Mr Bizos could refer me to what page?

CHAIRPERSON: Page 52 of your argument, just below the middle of the page. If you take a look it says: "For example", go down the right-hand column.

MR MARTINI: Well what I intended to mean here, Chairperson, and it's not what Mr Bizos - and I'll correct it, because I intend correcting another issue as well, and I should have ...(intervention)

MR BIZOS: ...(inaudible - no microphone) affects my ability as an Advocate, saying this contrary to my instructions. Let's correct this thing and then Mr Martini can correct anything else that he may want that doesn't affect me. What is it that he wants to correct and what does he want to say about it?

MR MARTINI: Chairperson, I'm not Mr Bizos's son and ...(intervention)

MR LAX: Listen, let's just get on with it.

MR MARTINI: What I'm trying to correct here and I wanted to correct another issue, was, and I should have done it at the beginning, what it is intended to mean there is not that Mr Bizos conceded that Minister Omar was involved with the armed struggle, what Mr Bizos conceded was he was a high-ranking member of the ANC, and what I'm ...(intervention)

MR BIZOS: But it's false ...(inaudible)

MR MARTINI: Well if it's false, let it be false. It's not ...(indistinct) involved in the armed struggle, what I'm suggesting there is the ANC was involved in the armed struggle.

Now that takes me to another issue ...(intervention)

MR BIZOS: Mr Chairman, I want clarity. Couldn't we just delete that sentence and then please put whatever sentence he wants in and then see whether it accords with the truth or not?

MR MARTINI: Chairperson, I'm not getting involved in debates with Mr Bizos. Another issue, Chairperson ...(intervention)

CHAIRPERSON: But I think he's raised a point in which it's alleged Mr Bizos has put something on record, which is disputed and the way it's read, the way it's written and from what you've said, it's clearly ambiguous. Because the way I read it as it stands here is that Mr Bizos conceded that Minister Omar was a high-ranking member of the ANC and also that he was involved in the armed struggle against the State.

MR MARTINI: No, it wasn't.

CHAIRPERSON: That's my reading of it.

MR MARTINI: Well I read it that the ANC who were involved in the armed struggle. That is how it should read. The reference to the armed struggle is to the ANC. Now that's clear, there's never been any evidence ...(intervention)

MR LAX: Ja, but it's not clear, that's why we've asked you about it. That's why Mr Bizos asked you about it.

MR MARTINI: Well if it's offended Mr Bizos, I apologise, but what was intended to be conveyed there was a high-ranking member of the ANC and who, reference being the ANC, were involved in an armed struggle. Certainly Mr Bizos has never test ...(intervention)

MR BIZOS: ...(inaudible - no microphone) Omar was a high-ranking member of the ANC, at the time that Mr Martini's client tried to kill him, Mr Chairman.

MR MARTINI: Well then it could have been - I'll try and look for the reference, as far as I can recall it was ANC, it could have been UDF, but we'll look for it. But I don't want to delay time and I'll look for it. But what I want to clear up, that's not a major issue ...(intervention)

MR BIZOS: ...(inaudible - no microphone)

MR MARTINI: Yes, correct. But what I would want to clear up is that it's not intended to say there that Mr Omar was involved, that Mr Bizos conceded Mr Omar was involved in the armed struggle. I'm trying to refer to the ANC, who were involved in the armed struggle, and that's common cause that the ANC were involved in the armed struggle.

CHAIRPERSON: "of the ANC, which organisation was involved".

MR MARTINI: Yes, for want of better words.

And another issue Chairperson, which I would like to clarify as well is page 33 ...(intervention)

MR BIZOS: Mr Chairman, ...(inaudible) I think that Mr Martini's capable of understanding what I am saying and ...(inaudible). What I want to repeat is that it would appear to me that Mr Martini is capable of understanding what the one thing means and what another thing means. I will leave it at that, except to say that the statement is false, Mr Chairman.

MR MARTINI: ...(indistinct) to correct it, to satisfy Mr Bizos, and if it is incorrect, I tend - it might be an error, that it should have been the UDF, then it should be: "was a high-ranking member of the UDF". And today I put there, you see it's got a - I'm referring to the armed struggle, to the ANC, because Mr Omar quite clearly from his position today, is in the ANC.

MR LAX: But the question is, was the UDF involved in the armed struggle?

MR MARTINI: No, so we can put ...(sound cut off)

MR BIZOS: To get the record correct.

MR MARTINI: ...(indistinct - no microphone) Another error, Chairperson, page 33 ...(indistinct - no microphone) this was confirmed by Mr Alexander, I want to make it very clear that this witness in the forthcoming elections ...(inaudible). It's a new sentence: "This was confirmed by Mr Alexander". This should in fact refer to the forthcoming elections. So if you want to add on a longer sentence, it would say: "The disruption of the forthcoming elections was confirmed by Mr Alexander". In other words, Chairperson, I do not want it to be taken that Mr Alexander confirmed that the Kewtown Youth Movement were involved in bombings. There was evidence but it wasn't his confirmation.

And another issue that I needed to clarify as well in my Heads, which actually deals with the Tutu incident, but just to correct it, the evidence wasn't of Region 6, I've raised this earlier in argument, it's Region 9. Region 7 I think I referred to in here, it should be Region 9, Chairperson. Page 29, I think it would be, yes the last sentence there Chairperson, if we can make this amendment, to Region 9 and just to make it clear I want to add in the words "and possibly Mr Luitingh could also have told". So that in my mind I appreciate, I understand what I'm saying there, but others might read it differently. Region is incorrect, that's an error, that should have been 9. "Mr Luitingh could have told", Chairperson. Thank you, Chairperson.

CHAIRPERSON: I see it's gone past our lunch hour, I had no idea, sorry.

MR LAX: Can I just ask one thing, it relates to your argument at page 47, I'm sorry, at page 47 of your Heads. It starts at point 15.4.11, page 46 and it goes over the page. I just want sure what you were saying there. Are you in essence saying that this wasn't an offence?

MR MARTINI: No, it was dealing with the order. Mr Lax, if you recall Mr Bizos raised issues to say that an order could never have been lawful and at one stage Mr van Zyl actually conceded, he said it's possible. The deed may be unlawful. "It is submitted in criminal law if an accused bona fide believed ...(indistinct) order to be law, ...(indistinct) absence". What I'm saying is that if Mr van Zyl believed by the fact that they instruct him to kill, was lawful, it negates culpability, unlawfulness. That's what I'm saying.

MR LAX: Yes, but if that is so, then he hasn't committed any offence. That's what I'm asking.

MR MARTINI: Yes, but it goes to the lawfulness of the order, if the order was lawful. So in his mind if he believed the order was lawful when factually it is - as Mr Bizos put it to him, you can never contend that an order to kill Mr Omar would be a lawful order. And I think he conceded to that. But in the context of receiving the order being authorised, in his mind he doesn't believe it to be unlawful, because he's authorised from the Defence Force to go ...(intervention)

MR LAX: Yes, that's precisely my point. If he doesn't believe he's done anything unlawful because he acted on a lawful order, why has he applied for amnesty?

MR MARTINI: Well lawfulness touches back to the political issues, Mr Lax.

MR LAX: No, it doesn't, if he thinks he's committed an act or a delict, but that was lawful ...(intervention)

CHAIRPERSON: But surely one must bring subjectivity and objectivity, I mean it's not a defence in a criminal case. A good defence in law for a person to say: "I thought the order was lawful, therefore I'm innocent"?

MR MARTINI: Correct, Chairperson, subjectively.

CHAIRPERSON: Yes, it's not a defence.

MR MARTINI: That deals with - I'm not suggesting it's an offence, I'm saying it could be akin to that situation, but subjectively. Not objectively tested, but subjectively in Mr van Zyl's mind. Thank you, Chairperson.

CHAIRPERSON: Yes, thank you. Sorry for the delay, we'll take the lunch adjournment now and if we could start at half past two. Thank you.



CHAIRPERSON: Thank you. Who is going to be arguing now?

MR H DU PLESSIS IN ARGUMENT: I'm next, Mr Chairman.

Chairperson, I do not intend to repeat everything that my colleagues have said, I just want to confirm what has been said by Mr Wessels is applicable to my client. An aspect that I would like to add with regard to the ape foetus or the monkey foetus, my client does not have any objection to whatever way you want to handle the matter.


MR H DU PLESSIS: Chairperson, I shall not repeat my Heads, I shall stand by that. I would just like to add that criticism has been voiced in Mr Bizos's heads with regard to the evidence of Gen Webb, for example on page 8:

"All the applicants failed to act within the course and scope of their duties, Section 20(2)(b), in that they breached the CCB's internal rules by omitting to do the following:

19.1 By failing to take proper steps to ensure that information received from an illiterate gangster was probably verified and checked before an act of violence was perpetrated."

The only thing I would like to say concerning that, with regard to the criticism to Gen Webb's evidence, you have to bear in mind and see it in the background that Gen Webb was appointed as Commander of Special Forces. He came there, there CCB was already in existence, so he took over an existing structure and just continued with it.

And furthermore you have to bear in mind that he was never involved in the identification of a project, he was involved in the collection or verification of intelligence, he was not involved in the planning, he was not involved in a pre-study, and he depended on what his subordinate, Col Verster told him. So his evidence and what he knew of a project or did not know, you have to see that in that light. That is all I have to say. Thank you, Chairperson.

CHAIRPERSON: Thank you. Are you going to say anything about the conflict of the evidence between Gen Webb and Mr Verster, what approach we should take, or whether ...(intervention)

MR H DU PLESSIS: Are you referring to the dispute between the two of them with regard to the Omar and Evans incidents?


MR H DU PLESSIS: Chairperson, it is quite simple. You will not that even in the Harms Commission and the other commissions of enquiry, Gen Webb said continually: "I did not authorise those projects". So he has continuously held the viewpoint that he did not authorise it and if he did authorise it he could also have applied for amnesty here, which he did not do. So his version still remains the same. If you look at Mr Verster's version in this regard, there are various versions which he put forward to you, whether he had authorisation or not. But for purposes of Gen Webb, I think you can accept that his evidence in this regard is correct, that he never authorised it and that is why he did not apply for amnesty with regard to that. Thank you, Chairperson.

MR LAX: If I understand his evidence correctly, he's never been in any doubt about the fact that he didn't authorise those ...

MR H DU PLESSIS: That is consistently his version of those two incidents, Mr Chairperson. I thank you.

CHAIRPERSON: Thank you, Mr du Plessis.

MR VAN ECK IN ARGUMENT: Thank you, Mr Chairman. If I can jump in at this stage. Regarding Calla Botha, also I share the same view, in that I'm not going to repeat the requirements of the Act, it is before this Committee, and I am the first one to confess that this Committee knows much more about it than I profess to do so I'm not going to repeat it for the Committee. As well as the position of the law. That was also argued already before you and I'm not going to repeat it.

Regarding the Heads of Argument, I also submitted Heads and I'm not going to read it out, it's brief, and the point I made in there I think is quite clear. Regarding Botha, when he was giving evidence the translation that came through described him as a qualified demolitions expert, now that is not right, he was an explosives expert, and I submit that there's a big difference between a demolitions expert and an explosives expert, Mr Chairman, and that is not due to the fault of Mr Botha. It maybe created the impression that he was there to demolish a building and that's surely not the position.

Mr Chairman, if we look at the arguments relating to Botha, from the Heads we've been served with, Botha was placed on ice. Botha was basically in his own words, not informed of what happened there at the CCB, especially the relationship between him and Burger was not as it was between Burger and the other people working there.

And when Van Zyl encountered problems relating to the bombing of the Early Learning Centre, Van Zyl urged on Burger that he wanted Botha to help him in that. On that basis Botha came back. On that basis Botha was then informed by them. And I submit at this stage, when he arrived there at the hotel he was encountered by Basson, Burger and Van Zyl, and he had not reason to query the decisions already made, the in-house, the plans, everything. He was requested at that stage to carry the bomb and as an explosives expert, to arm the bomb at the Early Learning Centre. He had nothing to do with the preplanning. He had nothing to do with the political motivations regarding that. And I submit with respect, Mr Chairman, that if we look at Botha's evidence relating to that incident, that he told this Honourable Committee exactly what he was informed and he had no need to query of those decisions there.

If we look at page 2 of part A of the bundle from Mr Bizos and Mr Kahanovitz, the criticism levelled against the people in the Early Learning Centre, from paragraph 4:

"The evidence of the applicant is to the effect that a bombing was intended merely to frighten the members KTY"

It's false. Botha had nothing to do with the preplanning of this, this was Van Zyl's part. Van Zyl had to do it and Botha had to rely on what Van Zyl said. You must also have regard to the evidence of Gakkie Hardien, how he described Botha as:

"that fat person. Met him for the first time"

There was no contact between them.

If we go further and we look at page 3, from paragraph 5 on part A from the Heads, I submit that if we look at that, the bulk of that criticism can't be levelled against Botha. Botha was not involved in the gathering of the information. Botha was not involved in the planning of this and Botha was most definitely not involved, in paragraph 8, the payment of Hardien. He had nothing to do with the initial R30 000 and the eventual R18 000 that was paid. So if we look at that, then I submit that we must look at the evidence of Botha and the role he played there in context, as it happened there that day. That he was called in from the cold and asked to do a certain job in relation to the CCB, been instructed to that by Burger, Basson and his colleague at that stage, Van Zyl.

CHAIRPERSON: He did say that he believed that there wasn't any intention to kill any person.

MR VAN ECK: Ja, there was no intention relating ...(intervention)

CHAIRPERSON: So the criticism or what you call the criticism of the evidence, but the statement on page 2, that the evidence of the applicant ...(indistinct) the KTY was to frighten people and not kill them is false. That would also apply to Botha, because he said that there was never an intention to kill and in fact I think he went so far as to say it was divine intervention that came in and ensured that that didn't happen.

MR VAN ECK: That is correct, Mr Chairman.

CHAIRPERSON: If it's found that the intention was to kill, what effect would that have on Botha's application?

MR VAN ECK: The intention to kill anyone at that stage wasn't a part of his planning, Mr Chairman, he was not informed that that must happen. And if my memory serves me right and if one has regard to his evidence, if the intention was to kill someone and that was planned in the in-house by Van Zyl, Burger and Basson and approved by the other senior members, he would have associated himself with that, but at that stage when the bomb was planned and put in the Early Learning Centre, that was not part, as far as he's concerned, of the operation there.

Another form of criticism against him is the discrepancies and the contradictions in his Section 29 statement. He was cross-examined extensively on that. I submit that he explained the position and the circumstances where he was detained under Section 29, and he had, at that stage, also regard and sympathy with Barnard who was his good friend and he tried to protect him as well.

Botha excluded some other acts for which he didn't apply for amnesty but which he informed this Commission in full, regarding the Rosskam incident, regarding the Webster incident. In ...(end of tape) ... and that is what he did there. And I submit that that can't be held against him for not applying for amnesty for that and that when his amnesty application was compiled it was done by experienced legal practitioners and it can't be his fault that certain incidents were excluded. Like for instance, the Rosskam one, it's not on his doorstep that it wasn't done.

Mr Chairman, I submit that if one looks at the requirements of the Act and what Botha's role was that he played in the bombing of the Early Learning Centre, that he explained fully his role, that he made a clean breast of it and that he is indeed sorry for what he did and that he apologised for that. Surely one cannot expect from him to disclose more than what he knew. For instance, people in the hall, the preplanning of it and if one looks at it in the totality of what transpired that evening there and thereafter, I submit that the only act for which he applied for amnesty, the bombing of the Early Learning Centre, he ought to get amnesty for that.

The other incidents for which he didn't apply, he made a clean breast of that here. Obviously that doesn't come into the roll here and I submit in the end that Botha has done everything he could to fulfil the requirements of this Commission and the Act. As it pleases. Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr van Eck. Mr Coetzee.

MR COETZEE IN ARGUMENT: Mr Commissioner and esteemed Members of the Committee, in dealing with the application of Mr Barnard for amnesty regarding the Apie project and the Omar project, one thing, with great respect, which is very clear is that the applicant doesn't at all try to disassociate himself from the seriousness or the immorality of the acts which he has perpetrated. And quite frankly, very few people could have come to a Commission such as this with a more tarnished background and reputation than Mr Barnard. But the fact of the matter is that he was a member of the CCB and later the DCC. He stated his political motivations in regard to his actions quite clearly in his application already and also in bundle K at pages 2622, he clearly stated there what was his intention and I wish to read it to the Honourable Commission:

"I was under the impression because I was indoctrinated and brainwashed, and I'm not trying to escape my own accountability, I was under the impression that what I did was justifiable in terms of the struggle that was waged during that time."

My submission with great respect, is that his evidence clearly indicates that he has complied with the criteria set out in the Act, more specifically Section 20(2)(b), even Section 20(2)(f) and also Section 20(2)(g). In any one of those three categories he would very easily fall if one takes cognisance of his evidence.

CHAIRPERSON: So what do you say about the allegations and/or submissions that he was not a member of the CCB after the McQuillan affair?

MR COETZEE: If I can, I just wish to find that in my Heads where I deal with that. Yes, that's paragraph 10 on page 4 of my Heads. With great respect Mr Commissioner, to assess this properly one needs to take cognisance of the fact that Mr Barnard was initially, from the start, treated in a different fashion as any of the other members of the CCB. He was first of all recruited by Mr Verster himself, which in his own criteria for the discipline in his unit would have been a tremendous security breach. For him as head of this unit or Director of this unit to have direct contact, as he has stated himself, with an unaware member.

Then if one further has regard to the fact as Mr Barnard has testified, that from the beginning they were not interested in his qualifications in any other use than in his criminal contacts as well as his skill with weaponry.

Then a very important factor which clearly states or shows that he was throughout a member of the CCB, is that he was given a pager, he was given a dead letter box to receive his instructions from, from various members of the CCB. Through those channels he was instructed, Luitingh had communications with him which it seems from the documentation is common cause. Various other had ...

But also a very important factor is that Kobus le Roux from the Namibian branch of the CCB, made contact with him through this pager system. The only way in which Kobus le Roux could have reached him in this system or know about him or knew how to reach Mr Barnard, was if he was in fact a member of the CCB. Where would he - I mean it is not as if it is general knowledge to any person, especially in the need-to-know basis in which the CCB operated, that every foreign operator, whoever, would have known about Mr Barnard's involvement and availability in the CCB.

If one takes these aspects, together with the fact that he received his financial support throughout from the CCB, he had a motor vehicle which he was supplied with as the other aware members, and there's no evidence that any other unaware member was supplied with a motor vehicle of the same calibre in any way as Mr Barnard has been supplied with and on termination or alleged termination of his employment by the CCB, they did not tell him: "Mr Barnard, bring your vehicle back, bring whatever implements of your trade that you have in your possession, bring everything back". So that together with the post facto factor that his legal costs in all the inquests and commission proceedings on a later stage were paid by the Defence Force.

Now the argument was raised that yes, there were also other aspects which were involved with the Goldstone Commission and the Harms Commission, but not in the Webster Inquest. That was purely an incident which happened during the period when he was - it was only that the inquest dealt with, what they allege he was a rogue agent acting on his own, then it would have been easy to disassociate themselves from him to say: "We don't know who you are, we don't want to have anything to do with you". But that's not what they did.

Mr Commissioner, thereafter the immediate transfer of the applicant from the CCB into the DCC, if this security breach with the McQuillan project was viewed in such a serious light, why in heaven's name would they have used him in the next generation of dirty tricks? That with great respect, is a very clear indication. That, also coupled with the cross-examination by Mr Wessels of Calla Botha, from the documentation he was referred to and I'm referring to bundle L, page 3316, it is clear from the questioning that happened there and the summations that were made there, that in fact Mr Barnard was considered to still be a member of the CCB, because they said they should consider firing him. And that is at a stage when it was supposedly to have been common cause that he was already fired.

Mr Commissioner with great respect, that is one aspect which is very clear, that Mr Barnard was at all relevant times an agent in the service of the CCB. When Gen Webb testified I questioned him on the applicability of the regiment of discipline, I believe that in English that is the translation, whether that was applicable to also members of the CCB, for example Mr Barnard, and the answer was yes, categorically yes.

Now understandably we are dealing here with a secretive organisation which you cannot hire and fire and think you can do that with impunity, because of the knowledge that people have and they might bear a grudge, but at least to fire a person from such a position there had to be some kind of a disciplinary hearing or a trial or whatever kind of action needed to be taken to just summarily dismiss a person. The risk of just telling you today: "You're an agent, you know all this about this secretive organisation, now we fire you", with great respect, it is highly unlikely that an organisation such as the CCB would have done that. They would have redeployed a person, they would have handled him differently. Which is exactly what they did here, they handled him differently. They used him as the dog to do the dirty work. Which is exactly what he had to do.

This organisation was formed as Mr Verster has indicated in his evidence, as a civilian strike force, but where's the strike? To do the strike you need people to do the strike and that's exactly where Mr Barnard came in. He was the type of person they were looking for as the strike in the strike force. Now this put into perspective, the application of Mr Barnard, the fact that he was, whenever there was something that needed to be done which would be in a situation where the ordinary members of the CCB could have been exposed, they bring Mr Barnard to do that kind of work.

For example, if we can deal with the Omar matter. On probabilities, with great respect, on probabilities to fly Mr Barnard from Johannesburg to Cape Town to do monitoring of Adv Omar, it doesn't make sense. He's a person that stands out from the community there, he even complained that in what he had to do he was so visible that it would have been extremely dangerous for him and for the organisation to use a person like himself for monitoring purposes. It is not as if he had any special knowledge about either Adv Omar nor the surroundings in Cape Town.

It would have been understandable if Mr Barnard was a person who moved around freely amongst the legal fraternity in Cape Town, to say he has a special ability to monitor Adv Omar, that's why we're going to use him to monitor Adv Omar. But that was never the intention. The intention of bringing Ferdi Barnard to Cape Town was to assassinate Adv Omar, and that is exactly what he said he came to do.

My learned colleague Mr Martini, on two occasions he said that nowhere did Mr Barnard testify that he got an order to assassinate Adv Omar, but the passage which he read himself from page 2668, he read:

"I was requested to go and kill Dullah Omar"

It's clearly stated here.

Furthermore, reference was made to the finding of Judge Els on his matter of guilt, and I'm referring to the bundle which we were supplied with extracts from the Ferdi Barnard Judgment and as it is numbered here with an 11, but it's actually page 230 from the Judgment, and I'm going to read it for the benefit of the Commission. It's in Afrikaans:

"We are satisfied that Barnard's evidence regarding the affidavit which the accused made, can be accepted. According to the statement he waited for Omar outside the house with the firearm in order to shoot him dead. We are satisfied that the accused intended to commit murder and that this action can be regarded as an executive action."

Exactly as the testimony of Mr Barnard stated he did. There's no discrepancy there at all.

With regard to the credibility of Mr Barnard, with great respect, if the only criticism that can be levelled against him is his evidence regarding the firearm, whether he got it via Slang van Zyl from Peaches, or directly from Peaches. With great respect, that is minuscule. It is not necessarily the hand that hands it to you, it is where does it come from? It comes from Peaches. And that with great respect, that tends on probabilities in this matter, this is not even probabilities, this is probabilities.

If one then also looks at the Apie project, with great respect Mr Commissioner, and it is hearsay evidence what Mr Barnard has testified, but it is the only credible explanation that there could be for the actions. Why else would an organisation such as the CCB be involved with games? Because to scare the gardeners, with great respect, can never be the priority of such an organisation.

If one feels tempted to criticise Mr Barnard for his testimony and the fact that he did not apply for amnesty for these various acts, for example the killing of David Webster, the Rosskam matter, even possibly Mark Francis's murder, it must be noted that the government had run away from him, from their responsibility with regard to Mr Barnard. Is it really so necessary then or absolutely that you can blame him from running away from his acts? It follows, I mean the government runs away from me and my acts, let me run away from it myself, I'm also not going to stand for anything that you can't prove. I'm not going to stand for anything like that. And that's why - the only thing he knew that they could prove was his involvement with the Apie project and with the Omar project, that's why he made that application. And with great respect, that Mr Barnard lied his whole life, that is so, but to say here that Mr Barnard can not be believed for what he came to tell this Commission, because of the fact that he was a liar previously in his life, that would disqualify, with great respect, almost seventy percent of all applicants that have appeared in these applications. And basically all of these applicants ... ipso facto, because not one of them stands here with a clean slate. Perhaps excluding Gen Webb, but the rest of them - maybe Gen Webb as well, but the rest of all the applicants in most of applications - I haven't been involved in so many, have been people with a background of deception and lies.

To deal with an aspect of proportionality regarding the actions of Mr Barnard, it is serious actions, to go out and assassinate a person in the likes of Adv Omar cannot be justified and I do not attempt to justify the actions, but one needs to take into consideration that you get an agent here who is instructed to go and murder, for him to go and assess and evaluate the information with which he is supplied, it is not reasonable to expect of him, the man to do the dirty work now to go and follow up and see whether the information with which he is supplied which identifies the target, whether that information is correct. He's supplied with information and with a task. 'this is the man, he needs to be taken out because this is what he's doing and this is the danger which he poses'.

If one takes reasonability into account that's what his task is, that is what is in his mind, that is what he's going to go and do. And if he then with hindsight, shows that it was an unlikely target or a target which should never have been identified, with great respect, that blame cannot be put before him, in front of him, because that is not where he fits into a long line of operatives with various line functions. For example, you do information, you do this, you do that.

If one takes into account the evidence of Mr Verster regarding the civilian strike force it is, with respect, clear that the applicant acted within the course and scope of his employment with the CCB. And the argument might be raised that he did that for money because of the bonuses which he received, but one needs to take into consideration that certainly nobody, not nobody, there are few people that will be prepared to take that kind of risk just for king and country. To say: "I'm such a patriot, don't pay me, I'll do the dirty work for nothing", and that's unfortunately not a very realistic picture. We had a person here who came out of prison, who took up employment and who had the opportunity of getting remunerated for that employment. But that does not take away from the fact that what he did, he did in the line of his duty in the course of scope, that he associated himself with the struggle which was currently at that stage on everybody's mind ...(intervention)

CHAIRPERSON: I know the situation in relation to askaris who carried out various types of operations, their manner of payment was a bonus. There was almost a tariff, you know R7 000 for a takeout and R3 000 for an abduction, that sort of thing, and they got paid ex post facto for what they had done, and the Amnesty Committee has granted amnesty to askaris, because that was the manner of payment, they way they got paid. I don't know if it's right or wrong, but I'm just saying that askaris got paid on the same fashion, about being paid bonuses for work done.

MR COETZEE: Yes. My submission is that the mere fact that there were bonuses that were paid, or that there were possibilities of bonuses, does not subtract from the fact that he did what he did with a political motive and that he therefore falls into the cadre of the Act and that he thereby qualifies within the parameters of the Act. It is my respectful submission, whether or not the Commission finds that full disclosure should be on a limited interpretation or a wide interpretation, Mr Barnard exposed whatever he knew, inside the country, outside the country and certain things known and many things not known to the Commission and that regardless of the interpretation, he did comply with that requirement.

Then just to deal with one further aspect and that is criticism with regard to the fact that the version was never put to the witnesses. With great respect, he gave a very detailed reasoning for that and with great respect, what happened in this Commission in my submission is what this whole amnesty process is all about. This is to change people's hearts and to create a spirit of reconciliation, which is exactly what has happened here and for which I am very proud of. Thank you, Mr Commissioner.

CHAIRPERSON: Thank you, Mr Coetzee.

MR VAN ECK: Mr Commissioner, before Mr du Plessis proceeds may I at this stage ask this Honourable Commission to excuse me from the further proceedings, Wynanda(?) Coetzee, my instructing attorney will sit in my place and for any replies tomorrow. And I also want to express my thanks to this Commission for this hearing throughout. As the Commission pleases.

CHAIRPERSON: Thank you, Mr van Eck and thank you for the assistance that you have given us during these hearings. Thank you. Mr du Plessis.

MR P DU PLESSIS IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, I will obviously rely on all solid and favourable submissions made by any of my learned colleagues and the rest I will distance myself from for obvious reasons. I will try not to repeat any submissions made before. May I just briefly refer firstly to a matter I deal with in my Heads, the background to the amnesty process, on page 2 of the Heads.

Now I do submit that this aspect is very important in the whole context of the application by the applicants. I refer to the fact that this was in fact also included in the Interim Constitution as an epilogue and furthermore I refer to the fact that Section 48 of the current Act 34/95, in fact also refers to the fact that the criteria set out in the repealed Act should be taken into consideration.

If I may just briefly refer to that. I have annexed it to my Heads, the two previous Acts as well as the Government Notices. Without now referring to that in detail I wish to submit that it is clear that throughout it was the intention of the government as well as the opposing parties at the time, the ANC and others, that all people should be treated equally. It did not matter whether they were supporting the apartheid regime or whether they were freedom fighters. That was the intention, not only, obviously, of the government of the time, but also of the ANC and others and that appears clearly, for instance, from this Notice 12834 of the 7th November 1990, which actually embodied decisions taken at the Groote Schuur Minute, between the government and the African National Congress.

Now it is important, because I will be referring to the Heads of Argument on behalf of the victims, where it is in fact stated by my learned friends for the victims that a distinction should be made. It boils down to that if one reads between the lines and what they say. I will be referring to that.

Now if I can then, without further referring, if necessary I can refer to the repealed Acts further, but I don't think it's necessary. If I can then go back to my Heads where I make the submission on page 3, paragraph 2.4:

"that the spirit and the objective of national unity and reconciliation, specifically those of the amnesty process is then provided for in Act 34/95"

it should be interpreted in terms of the objectives of the Constitution of the Republic of South Africa, to which I have already referred in terms of the epilogue. Now that very same situation was dealt with by the Constitutional Court in a matter of Azapo and Others. I refer to that on paragraph 2.5. Now the reason why I just want to make mention of that is because of the fact that my learned friends for the victims also referred to the case. On page 19 of their Heads, they do refer to quite another paragraph, obviously for, I would say obvious reasons, paragraph 16 where they then quote the then Deputy-President, Mohammed and where they say or especially refer to the section where he said that he could understand that the victims would want the applicants for amnesty who supported the previous government, to be vigorously prosecuted and effectively be punished for the callous and inhuman conduct in violation of the criminal law.

Now we obviously agree with that paragraph and with the view of such victims, but what Judge Mohammed did was to then refer - in fact, what happened here is that he refused the application by Azapo to have Section 27 declared unconstitutional, for good reasons. After referring to the epilogue which I quote on page 4, he then went on to say, paragraph 2.6 page 4 of my Heads, and this is very important, so important that I do wish to just briefly read it out:

"In the result, I am satisfied that the epilogue to the Constitution authorised and contemplated an amnesty (and this is important) in the most comprehensive and generous meaning, so as to enhance and optimise the prospects of facilitating the constitutional journey from the shame of the past to the promise of the future."

And may I immediately interrupt myself to say that obviously the applicants I represent are part of the shameful past and obviously the acts for which they apply for amnesty are criminal acts of the most serious kind and that is why they are here, to ask for amnesty.

And then the Judge proceeds to say:

"They (referring to the Parliament) could conceivably have chosen to differentiate between the wrongful acts committed in defence of the old order and those committed in the resistance of it, or they could have chosen a comprehensive form of amnesty which did not make the distinction. Again they were entitled to make the latter choice ..."

and to which I added "as they in fact did", Mr Chairman. So it's all very well to refer Security Forces of the day and to their despicable deeds and to imply that these people had all the powers of the State in their hands, that they could have locked up people without trial, that we had the Emergency Rules and Regulations to their disposal.

Everything said is true, but what has to be kept in mind is that the parties when after 1990 they got together and the specific party, let's refer to the ANC, for instance, they were part and parcel of this decision to which the Constitutional Court here refers, they were part of drafting the Interim Constitution and they decided that there should be no distinction between the people supporting the struggle and those supporting the old dispensation and for that purpose they drafted the Constitution, the Interim Constitution and the epilogue thereto. And as the Judge stated here, parliament then was entitled to make this decision and they did and we have to live with that decision, and this Committee has to judge the applications of the applicants in that light.

There may be people dissatisfied with that, obviously there will be, but it's a decision made parliament and we have to respect that. And that is all to further the national unity and reconciliation in this country.

Having said that while the submission now therefore is that in fact this Committee should interpret Act 34/95 then in its widest and most liberal form it can, in view of the Judge's words that a most comprehensive and generous meaning of the amnesty term was intended by the legislature. That is the first aspect.

The second aspect then is referring to the test which this Committee should apply in terms of Section 20. My submission is that in fact the definition referred ... satisfy as set out in the supplementary Heads of my learned friends for the victims, on page 4 of their supplementary Heads: Afrikaans Press, the 1948 decision where it's stated:

"I take satisfy to mean therefore that a Court must feel that there is a fair probability that the Defendant's defence is a good one."

Now I submit that if one looks at this full paragraph, this could not mean on a balance of probabilities, it's a fair probability and ...(indistinct) on a balance of probabilities in my respectful submission, is two different things.

CHAIRPERSON: A fair probability. You've got a probability as opposed to a possibility, there's a difference.

MR P DU PLESSIS: That is in fact so, Mr Chairman.

CHAIRPERSON: So once you've got a probability, if it's a fair probability ...(intervention)

MR P DU PLESSIS: But it's looking at ...

CHAIRPERSON: Is that you only arrive on the fact that it's a fair probability after you've balanced what the probabilities are?

MR P DU PLESSIS: I submit that ...(intervention)

CHAIRPERSON: ...(indistinct) not a fair probability, then it's not a probability.

MR P DU PLESSIS: No, if something is probable, I submit that it means the same, virtually the same as that is reasonably possibly true. There's a fair probability if you look at the defence, like it was stated here in a civil matter, the Defendant's defence is a good one. It means that what is analysed here is the what the Defendant said virtually in isolation, on paper, does it create a fair probability that it's a good one? It's an impression which is formed on the probabilities.

CHAIRPERSON: But once you're dealing with probabilities, you're beyond possibilities, you're at a level above possibilities.

MR P DU PLESSIS: That is so, Mr Chairman, but the fact is if one in a criminal case, for instance, says that there's a reasonable possibility that something is true, like the test in a criminal matter, then obviously it must also mean that it's probable, it's reasonably probable, otherwise it can never be said to be a reasonable possibility. But in any event, ...(intervention)

CHAIRPERSON: Just before it slips my mind, just to go back to 2.6 where you quoted this "amnesty in its most comprehensive and generous meaning", were you taking that to mean that the granting of amnesty should be more generous rather than strict?

MR P DU PLESSIS: Strict. Yes.

CHAIRPERSON: Because doesn't that mean "in its most comprehensive and generous meaning", doesn't that mean that the amnesty should be far reaching, like if delicts and crime and expunging the record, as opposed to just what it usually is relating to criminal prosecution? This is comprehensive and generous in that it goes beyond just confining itself to indemnity from prosecution ...(intervention)

MR P DU PLESSIS: Yes, Mr Chairman, I would agree with that with respect, but I would also submit that if one reads the full report it is clear, especially with reference to the history of the amnesty process, that what the Constitutional Court says here is that as many people as possible who could be taken into account for amnesty, should be granted amnesty. It's a wide interpretation of the Act.

For instance, why would the reference to people supporting the apartheid regime, the previous government, be necessary in comparison to people supporting the struggle if the Judge did not here intend to indicate that in the interests of national unity and reconciliation and the future, that as many people as possible should be included in the amnesty process on as liberal a basis as possible. He was definitely not here only referring to the fact that it doesn't only apply to criminal but also to civil claims.

MR LAX: Isn't the simple point that arises from that quote really nothing more than this, that it's an evenhanded process that applies equally to both sides?

MR P DU PLESSIS: ...(sound cut off) agree with that, but I also submit that it goes a bit further than that and the full spirit of the Act was also stated by the Judge, a bit more than just the first one.

Now the problem I have if one is going to say that satisfy means that there is an onus on the applicants, several problems would then arise. Well firstly, I wish to indicate that if the legislature intended to impose an onus on the applicants, certainly the legislature would have said so in as many words it could have been said, and it doesn't state that. It could have said at the end of Section 20: "It shall grant amnesty in respect of that act, omission or offence if the applicant satisfies the Committee on a balance of probabilities". Why wasn't it stated specifically? And I don't want to go into the interpretation of Acts, etcetera, etcetera, but I submit that the interpretation most favourable to the subject, in this instance the applicant, should be followed and that interpretation will be that there is not an onus created and it would then mean obviously that a liberal interpretation of the word "satisfy" should be followed.

The problem is that, well over and above the fact that it's not specifically stated in the Act, and it could have been with no problem, is if there is an onus on the applicant, then obviously he should be granted a fair trial. I submit that then the rules of the rules of evidence will have to be applied, like in a formal trial.

Now for instance, in this matter we had reference to Section 29 statements on which many of the applicants had been questioned without any problem, because as far as I am concerned this is an open process in the spirit of reconciliation, where a person could be confronted with certain facts, hearsay evidence, etcetera, etcetera, as had been allowed here, and that he could give his comment to that. He can obviously tender whatever evidence he wishes to, and at the end of the day the Committee will form an impression of whether it is satisfied or not with what he said and whether it could be as Mr Wessels expressed, whether it could be then accepted as a reasonable possibility of what had happened.

Now if one then says that the applicants have an onus as in a trial, for instance as in a criminal trial or a civil trial rather, then it does create several problems and the fact is that, for instance in this case the applicants applied, they were some of the first people who in terms of the very first Act, applied for amnesty back in 1991. So what happened, they were also heard in Bloemfontein and those facts were never disputed. In terms of the second Act, no result given. Then they had to wait.

They were some of the first ones applying, they had to wait until the very last moment before their case is heard. I submit that in a trial situation, if they were to carry an onus the point may have been raised and may have been taken, that they didn't have a fair trial because of the long period that it took for the case to come to trial. And again, obviously they would be prejudiced to a large extent if inadmissible evidence like the Section 29 statements were tendered in evidence.

And I do submit that in a trial situation if a court of law allowed, incorrectly allowed for instance, reference to evidence like the Section 29 statements as an irregularity, it wasn't done for instance in a trial within a trial, assessing whether it could be submitted or not and an irregularity was committed, then for instance, the applicants would have been entitled to approach the Supreme Court or to bring an application for the Presiding Officer or Officers to withdraw from the case or take the matter on review, because of the fact that irregularities were committed.

So I submit that - also, if one has a look at the Act, it is clear that there is no prescription of the exact procedure to be followed, or that the rules of evidence as in civil or criminal trials has to followed. This is an open procedure to be followed in terms of the rules of natural justice and it does not burden the applicants with an onus to prove anything beyond a reasonable doubt. It's an impression that the Panel has to form on the evidence in totality at the end of the day. And I submit that it cannot be anything different than to find whether the submissions made or the so-called defence by the applicants for what they did was reasonably possibly true and not on a balance of probabilities.

So that concludes my submissions on that point. It has been dealt with in Mr Martini's Heads and also in the Heads which I submitted as an annexure in the Craig Williamson matter. I therefore urge the Committee to find that the applicants do not carry an onus to prove on a balance of probabilities.

I will then move on to the requirements faced by the applicants I represent. May I refer to page 7 of the Heads of Argument, it's dealt with with reference to page 7 and 4.1 is then the first element. The application ...(end of side A of tape) ... the victims, that the Committee should take cognisance of the fact that the applications made by the applicants are defective. Now I submit that this first requirement in terms of Section 20(1)(a) is merely a formal requirement, that is just to qualify to have the application heard and nothing more than that. Obviously the Committee can take cognisance of what is stated in that application. For instance, the applicants I represent, all of them conceded that there are discrepancies in their applications as compared to the evidence before the Committee, but I submit that what is important is the evidence here in terms of Section 19(4). This is a procedure where a hearing is held and they must be judged on what they said here and not on what they said in their application, although obviously it can be taken into consideration when an opinion is formed as to whether they satisfied the requirements or not. So I submit as far as the first, 4.1 is concerned, the first element, that in fact they qualified for their applications to be heard ...(intervention)

MR LAX: Sorry Mr du Plessis, surely there's a difference, a fundamental difference between whether the form is complete in all material respects and attested to properly and signed properly and so on, and there's a difference between that and the contents which they've sworn is the truth in form. And really, the gist of Section 20(1)(a) is that in a formal sense it's got to be here within the right time frames, all those things, cut off ... That's the only part of that that's relevant in this respect, the rest ...(intervention)

MR P DU PLESSIS: ...(inaudible - no microphone)

MR LAX: Yes. But as to the content of the form and whether it's materially different from the evidence or not, that's a completely different issue.

MR P DU PLESSIS: Yes, no that is so, but that is not what my learned friends for the victims have said in their Heads of Argument. ...(indistinct) ...(intervention)

MR LAX: Sorry, your mike please.

MR P DU PLESSIS: What they are saying boils down to this, that they can be refused amnesty purely on the basis that their amnesty applications as contained, I think it's bundle A, are defective. It boils down to that, but I submit that that cannot be correct. But I do conceded, obviously, that it can be taken into consideration when judging their credibility.

MR LAX: I didn't understand the point they were taking, to be that the forms are defective in form, I thought they were arguing on the issue of whatever untruths are in the forms go towards full disclosure.

MR P DU PLESSIS: ...(sound cut off) ... before even getting to the merits of what they are asking. In any event, 4.1, that concludes 4.1.

As far as 4.2 is concerned:

"the act or offence must have been committed by the applicant having been a member of the Security Forces of the State, as defined in the Act."

Now here once again my learned friends for the victims in their Heads of Argument are in fact stating that the applicants do not qualify in terms of the definition of Security Forces. But I do not see them mentioning that Security Forces includes any full-

time, a member (and I wish to underline) or agent of the South African Defence Force.

Now my submission in my Heads as from page 8 and further - no, sorry a bit later, page 10 and further, is that the term Security Forces in fact includes the term: "agent of the South African Defence Force". I then go into the background of the CCB and make the same submissions virtually as Mr Martini was making, that because of the fact that they were State funded and also responsible to account to the SADF, they have a General who is their Chairman, obviously a highest authority, that it can definitely not be said that they are not members of the Security Forces.

I go further to point out that the TRC Report in fact finds that the CCB represented a new method of State directed warfare in South African context, part of the Special Forces. And I submit that that finding by the TRC in their Report is in fact correct and should be followed by this Committee.

But I then go further to say on page 12, that in the alternative, the CCB was acting as an agent of the South African Defence Force, and I submit that there could be no quarrel with that. Clearly, if the CCB was contracted by the South African Defence Force, as my learned friends for the victims are suggesting, to just do their dirty work, being paid for that with State funds, then surely it must be said that each and every individual then working for the CCB, must have been an agent of the South African Defence Force, and as such they would fall under this definition.

The further enquiry would then obviously be whether they were committing these deeds for gain or not or whether from political motive, but that's quite another enquiry. And my submission is that they should easily clear the first hurdle, stating that they would fall under the definition of Security Forces, as defined in the Act. That concludes that point.

Then as far as 4.3 is concerned:

"the act or offence must have been committed by the applicant in the course and scope of his duties within the scope of his expressed or implied authority or he must have had reasonable grounds to believe so"

is found on page 12 and further.

Now I submit here that it has never been disputed that these applicants were all employed by the CCB. The nature of the CCB was never disputed and in fact, I again refer to the TRC Report and findings, especially on page 384 of Exhibit D, the CCB was a secret, apparently civilian strike force which was to supplement the Special Forces of the SADF. The purposes of the CCB, as we've heard many a time, death, infiltration, bribery, compromise and blackmail or destruction. We know that they've been, all three my applicants at least, have been on an induction course where they've been addressed by Verster and even Generals, as to the background, why the CCB is necessary, who the enemy is, what they should do, what they are entitled to do, that there was a war situation. I'm not only referring to the TRC Report, but it was in this hearing confirmed by Verster who was the Managing Director, it was said by Gen Joop Joubert who was the Chairman before Webb. So I submit that at all times relevant to any of the acts my clients apply for amnesty for, it is clear that they were not acting in their private capacities, but they were acting as members of the CCB.

And I submit further that they had no reason, that's Burger and Basson as well as Maree, that they had no reason not to believe that they were acting in the course and scope of their duty. Now what I'm referring to here obviously, is the fact that there is a dispute between Verster and Webb as to whether certain authority was given and in the cases of Omar and Evans. I submit that it cannot affect Basson and Burger, because they didn't know that. We must at all times, keep in mind that we had to do here with cut off points. Burger and Basson weren't allowed to walk into - well they weren't even allowed into the offices of Special Forces at Headquarters, but they weren't allowed to walk into the General's offices and ask him whether Verster did in fact get his approval or not. There were cut off points and they were working on instructions. So if it's said that they were not acting within the course and scope of their duties in the Omar and Evans matters, then it must be said at least, that they had reasonable grounds to believe so. And I then submit that as far as this requirement is concerned, obviously they also qualify.

Then 4.4 is referring to Section 20(2) and 20(1)(b) and there are several Sections referred to there. That is:

"The act must have been advised, planned, directed, commanded, ordered, committed with a political motive or objective, in the course of the conflict of the past."

CHAIRPERSON: Just a little minor point. Your Heads on that .2 should be .3, I mean (3) - 4.4 - Section 20(3) considers the following, not 20(2).

MR P DU PLESSIS: That's correct. Thank you, Mr Chairman.

The position as far as this is concerned I make the point that as far as the requirement that it was committed in the course of the conflict of the past is concerned, I do not think that one should even argue that, I think that that at least is common cause, that there was conflict in the country during that period and that's 1999(sic) period and that one accept that as given. The fact or the question would be whether they were entitled in view of that conflict, to do what they have done, but that I will deal with later.

The second leg there would be whether they had a political motive, etcetera. Now the point is made by the representatives for the victims, and very strongly done, that the applicants were doing what they did for money, for gain, that they were furthering their careers and they didn't have any political motive or very little political motive.

Now I respectfully submit that this was never put to them. All three my clients dealt with this very aspect in their evidence. If I can point out page 1851 of the record and further, as far as Burger is concerned, he deals with the fact that he grew up as an Afrikaner boy, a member of the National Party, later supporting the white government and protecting the sovereignty of the Afrikaner and the State. Now same goes for - without going into all the detail, I can just give the page numbers from 2169 and further Basson deals with this and in the same vein it is dealt with by Maree from page 2520 and further.

Now I submit that perhaps this submission by my learned friends for the victims shows how far the people of this country are still apart when it comes to understanding each other and the motives which had driven the different sections of the population in the past, to say that people who state that they had an Afrikaner background, they were supporters of the apartheid regime, let's call it like that, because that's the fashion, it was an illegal government as far as the victims were concerned, governing the country, a government for the minority. If people say that the victims did not have a political motive in preserving that government and that dispensation ...(intervention)

CHAIRPERSON: The applicants you mean?

MR P DU PLESSIS: Yes, the applicants. ... then I submit that there is very little understanding of the Afrikaner, of his history, of his struggles of the past and his background. If that was put to them, obviously we could have dealt with that in greater detail and if this was going to be a trial where the applicants had to prove on a balance of probabilities that they had political motives, then surely we could have asked the ...(intervention)

CHAIRPERSON: I don't think it's required anywhere in the Act that the applicant has to show that he had strong political feelings, one way or the other, whatever affiliation he was to. What is in question is that the offence or the act which forms the subject of the hearing is an act associated with a political objective. So technically you could get somebody who had no political leaning at all still being involved in an act which associated with a political objective. You don't have to go to the actual perpetrator and say: "Okay, he's got strong political feelings, therefore he's okay, whereas this one, he hasn't got much political interest, therefore he can't apply".

MR P DU PLESSIS: But I do submit that this is the point made by the victims' representatives, they say that these people did not have a strong enough political motive in what they did, and I beg to differ with that on the evidence.

MR BIZOS: What we are saying is that the predominance of motive was not patriotism for the gentlemen that left Brixton in order to become the new soldiers of the sovereignty for the sovereignty of the State, the predominance of their motive was money and not patriotism. We do not question, in fact we distinguish the Brixton people from other people and what we do say, that the mere fact that you were an Afrikaner, there are millions of Afrikaners that didn't take money for killing people.

CHAIRPERSON: But in any event, you see if a person - many members of the Security Force were apolitical, they were drafted in reluctantly. They might have been involved in a highly political operation with a political objective and what their personal political views are is sort of irrelevant. I think we can accept that.

MR P DU PLESSIS: The fact is however, just to answer to what Mr Bizos has just said that that is the second leg of his argument and it will be clear from his Heads of Argument how strong he makes the point that they didn't have the necessary political motive, but the fact of the matter is that it must be remembered, in answer to what he just said, that these people were drafted into the CCB by Verster, who told them what the purposes were of the CCB and it is clear, and I can refer to the record, that at that stage it wasn't done very elaborately with all the detail as it later appeared.

It must remembered that as far as Burger, for instance, is concerned and his evidence is very clear, it was said that this was a covert organisation, that they were going to fight the enemies of the State, etcetera, but the details only emerged six months later. So when Burger and Maree at least, were drafted into the CCB, they were not aware of all the detail and that was only given to them six months down the road when they were established in the CCB, they were busy establishing their blue plans, etcetera, etcetera. So it cannot be argued that at the stage when they were appointed into the CCB, that they had a financial motive and that it was said to them: "Look what we are needing you people for is to kill the enemies of the State for gain". I submit that that was never said and it was only made clear to them about how the CCB was going to function, six months down the road, and that was also the evidence of Basson. And I submit that it was never at any stage disputed by the victims that it was not so and that they were in fact then given contracts as hitman by the CCB right from the start. Now I therefore submit that that argument by the victims' representatives does not hold water.

If I may just then proceed to the next point. The context of the Act, I've actually deal with to a certain extent and at the moment I would just like to briefly refer to it again. Now it's found on page 17 and further. I once again submit that it is clear that the impression at least, the perception of the applicants was that there was total onslaught, an undeclared civil war where the ANC and its front organisations were waging in the country. That was the evidence of Burger, at page 1853. That was the context of the time. I refer to that. The Emergency Regulations were in place. The argument by the victims is you could have used the Emergency Regulations, you could have detained these people without trial for so many months, but the point is, just a bit later on in their Heads they do concede virtually, saying that those regulations were not working. And it's also stated, that much is also stated in the TRC Report to the President, that the government in 1984 thought they'd turned the corner, but they didn't and then the unrest spread throughout the country. There was virtual panic in government circles and in the SADF and they had to evolve new methods to address the position. I submit that that is the context in which the acts by the applicants should be judged. And I make the point a bit later in my Heads that this in fact is a very important factor, because when having regard to the requirements in Section 20(3), it does not say that the applicants have to comply with Section 20(3)(a) (b) (c) (d) (e) (f) and that they have to prove on a balance of probabilities that they comply with each of these. In fact, it says that this is a question which has to be decided with reference to those points.

And what my argument is on page 30 and further, is that in fact, if one then has regard to the fact that this was the context of the acts and furthermore that these people were employed by the Security Forces and they were acting under orders, that that has to carry weight. And if one then has regard to that, the weight of the fact that, for instance the proportionality of the act to the objective pursuit, is perhaps a bit disproportionate, because it can never be exactly equal. Then one has to consider the context and the fact that they were standing under orders and that in fact a government and a General were approving their actions. So it's a process of weighing all these different factors, which has to work to the advantage of the applicants.

If I may just go back to my Heads. The next point is in the legal and factual nature of the act which I deal with, with reference to all the different acts. Now I'm not going to read through this in detail, obviously. We make the concession here that all of these acts were of an exceptionally grave nature, the bombing, the possibility of loss of life there, obviously the two attempts to murder. It must be grave. It's a planned, preplanned murder and this was not voluntarily stopped by the CCB because they realised that their actions were wrong, there were others why it didn't proceed. But what I do submit obviously then, is the fact that no - on page 21, mercifully, no-one was seriously injured or killed. That has to be taken into consideration. And once again on page 21 I refer to the background, the context of the acts.

I wish to make the submission here that with reference the submissions by the victims, that the actual intention was to kill the people at the ELC, I wish to make the submission that this cannot be found on a balance of probabilities, to have been the situation. I make the submission that as far as my clients are concerned, Burger and Basson more particularly, they were not at the scene, they cannot be held responsible for what Van Zyl may have done or not have done. Obviously they were totally ignorant of the fact that, for instance, Barnard was used in other instances where Omar was concerned and ...(intervention)

CHAIRPERSON: I think my understanding of the argument that has been put forward by the victims is that when saying that it was the intention to kill the people in the ELC, they're not just confining that to Mr van Zyl and Mr Botha, they are saying that the project, the object of the project was to kill.

MR P DU PLESSIS: Yes, I understand that.

CHAIRPERSON: And they put their grounds, saying that you know, that's why the remote control was used, that sort of thing. So that does include ...(intervention)

MR P DU PLESSIS: It does include ...(indistinct), but what I'm saying is that ...

CHAIRPERSON: ... you can't just say, well they didn't know what was happening on the ground, therefore that doesn't ...(intervention)

MR P DU PLESSIS: No, I'm not saying that Mr Chairman, what I'm saying is that on the facts in totality, on the evidence in totality, this Committee will not be able to make this finding that it was the intention of this whole project to kill the people. And yes, I submit - I will make further submissions then, rather later on, with reference to the victims' Heads.

The next is the object or objective of the act. What I submit here is that in each of these instances - page 22, as far as each of these instances is concerned, it cannot be said that the object or objective of the act was unrelated to the political situation in the country, the context of violence, the context in which the CCB functioned. As far as the bombing of the Early Learning Centre is concerned, I submit that Van Zyl obviously obtained the information in the first instance, he gave that to his superiors, being Burger and Basson, and that information was in turn then given to Verster.

Now it was said in evidence that, and by Van Zyl as well, that he did not obtain all the information which subsequently appeared on record regarding the Early Learning Centre. So obviously someone obtained something further and Burger and Basson are saying is that they knew that Verster had his own channels to obtain further information or to check out information with other sectors of the security community and that as far as they were concerned, the information did not only come from Van Zyl and from his informers in the Western Cape, but it was dealt with correctly in terms of the procedure which the CCB created, and one must now remember - and may I just interrupt here to say that as far as Basson is concerned Burger had no information sources of his own, he was not allowed to speak to anyone to check out information. Basson had to do it in terms of the contact he had with Derrick. Now he - and that was the prescription by the CCB, he had to check it out with the information officer, Derrick and then it would come back to him, confirmed or not confirmed, and they would act on that basis, and obviously that would be taken up with Verster. And the impression was that he had his own sources.

And as far as the Early Learning Centre is concerned this is one of the examples where Van Zyl gave certain information and when the instructions came back from Verster and Webb, there was further information. So I submit that the applicants I represent had all reason to believe that they were acting on valid information.

CHAIRPERSON: Sorry, if you can just refresh my memory, there's been so much evidence. What was the evidence, I think Gen Webb gave it a name, wasn't the ELC a sort of opportunity target, that there was a short time, it had to be done before ... because the elections were looming or something like that.

MR P DU PLESSIS: That is so.

CHAIRPERSON: So how do we know then that - would they have verified that, because it was an opportunity target? Would the same procedures apply?

MR P DU PLESSIS: Yes, well the same procedures did not necessarily apply. But the point I'm making is that there was further information added to what Van Zyl got. For instance the Khayelitsha burning which they were going to burn certain sections of Khayelitsha township, etcetera, to create unrest. Now that didn't come from Van Zyl. It didn't come from Basson, because he couldn't check out the information with Derrick at the time, but someone added that information and it could only have been, as far as my applicants are concerned, it could only have been Verster or Webb. And the instruction came from Webb.

So point I'm making is not that that information was necessarily correct, but the point is that both Basson and Burger had all reason to believe that this operation has been approved, in terms of the workings of the CBB as prescribed. They didn't have reason to believe that no-one checked out the information and that innocent individuals were going to be targeted. That's the point I'm making.

And then I go further to say as far as the ELC is concerned, one must take into consideration the evidence of Mr Alexander, and from it it is clear that there was information, at least, existing within the community. There was conflict in that community between certain people, whether they were gangsters or not. But it must be remembered that Burger and Basson were not footsoldiers at the scene in the Cape, so they couldn't check this out, but Mr Alexander makes it clear that they were all political activists, they were known to Hardien, etcetera, they Security Police were interested in them, they were having their meetings at different places to avoid the police, etcetera. So at least, this is not a matter where you had totally incorrect information, where the people concerned were not politically minded at all. Mr Alexander ...(intervention)

MR LAX: Could I just stop you there. There's some confusion on this one I think, because there's a big difference between KYCO, which was the Cape Youth Congress, which was the organisation which was meeting when the bomb went off. Which wasn't the intended target. And that was an out and out political organisation, no question about that, but the Kewtown Youth was a different kind of organisation, on the evidence and there's must be a - they weren't secret.

MR P DU PLESSIS: ...(inaudible - sound cut off)

MR LAX: So I'm saying, Alexander's evidence in this regard, with regard to the Kewtown Youth Movement, is different to that with regard to the Cape Youth Congress.

MR P DU PLESSIS: Yes, but it has ...(sound cut off) ... Mr Alexander was a member of both Kewtown Youth Movement and the Cape Youth Congress. They were affiliated. He was a representative of Kewtown Youth Movement on the Cape Youth Congress. And then furthermore, they were then affiliated to other organisations eventually affiliated to the UDF. So I'm not trying to make the point that anyone was entitled to harm these people because of their political motivations, but once again one must see the full picture, the context of the time, Emergency Regulations, etcetera, etcetera. You cannot take this piece by piece and say if you look at their political profile, they're small fry, Kewtown Youth Movement is not the Cape Youth Congress, they weren't having secretive meetings, etcetera. One has to look at the full picture, all the elements as listed in (3) of Section 20.

And furthermore, one has to say this then also in favour of the applicants, that yes, in fact the people who were in the building were Cape Youth Movement and they were not supposed to be there - well, not supposed to be there, but they didn't have a planned meeting, they only decided on that meeting that very same evening, minutes before they gathered. And it is common cause that the Kewtown Youth Movement adjourned early and they were going home and they did in fact go home and only then did the Cape Youth Movement meet in the boardroom.

Now I submit that if Van Zyl was acting on information by Hardien and Hardien got the information of the Kewtown Youth Movement's meeting and he saw them going home, that he wouldn't know about the Cape Youth Movement and their meeting. Now it is so that there's evidence about cars parked, etcetera, but also in my heads I refer to this whole situation saying that one must remember that these people met at Kriek(?) and from there they would then decide where they would have their meetings, to escape the attentions of the police.

Now I cannot see for the life of me if you are so secretive, why you would take your car and drive from Kriek a couple of metres or - it was indicated on the map, and go and park all the cars of the people involved, right in front of the place where you are meeting. And it is clear from Mr Alexander's evidence that those people in fact walked over from Kriek to the ELC.

Now I'm making these submissions just to indicate that this is not a cut and dried cases where one can say that Hardien definitely knew about these 15 people in the boardroom, but there in fact, it's common cause that there were at least soccer players there. But then we had the evidence referred to earlier, for instance, that the hall was locked.

Now my submission is that it cannot be said that these people were in fact planning to kill persons gathering in a hall. If the hall was for instance, on the statements we saw, at that stage locked. Although Hardien didn't say that he noticed that it was locked, that I also concede, but the fact of the matter is at the end of the day, can it be found as a fact that they intended killing the people gathered in the ELC.

I then further refer to the Omar and Evans matters. I submit that at least, which can be accepted, is that Mr Omar had a high political profile, it was not contested at all that he was a high profile leader in the United Democratic Front, they were banned in terms of the Emergency Regulations, and it was never contested nor, I think will it be, that the UDF was a front organisation for the ANC, nothing more than that. And it is borne out by the fact that immediately after the election Mr Omar was appointed as Minister of Justice. But ...(intervention)

MR BIZOS: ...(indistinct - no microphone) the ANC, Mr Chairman.

CHAIRPERSON: I think he said there was evidence.

MR P DU PLESSIS: What I'm saying is, the evidence ...(intervention)

MR BIZOS: ....(inaudible - no microphone) deciding this matter on the evidence.

MR P DU PLESSIS: Mr Chairman, if what is said by the applicants is considered as not evidence, not to be taken into consideration as evidence, there's no evidence. But the fact of the matter is that the applicants sat here, all of them, giving evidence that the UDF was a front organisation for the ANC, and no-one disputed it. That's evidence. Or if ...(intervention)

MR BIZOS: What I wanted to ask is, where is the common cause that the UDF ... because that was the statement that was made.

MR P DU PLESSIS: Yes, that's something quite different. I'll retract that.

The fact of the matter is there's evidence, Mr Chairman, and it's never been disputed.

MB BIZOS: ...(inaudible - no microphone)

MR P DU PLESSIS: Well if it's not disputed actually it should be common cause, but I'll leave that there.

But what is important is that, which should be taken into ...(intervention)

MR BIZOS: ...(inaudible - no microphone)

CHAIRPERSON: Carry on, Mr du Plessis.

MR P DU PLESSIS: 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.

CHAIRPERSON: Yes thank you, Mr du Plessis. I see it's half past four now, would this be a convenient time to adjourn?

MR BIZOS: ...(inaudible - no microphone) finish early tomorrow ...(inaudible)

CHAIRPERSON: Stretch legs and go on for another half an hour?

MR BIZOS: That seems to be the consensus ...(inaudible - no microphone)

CHAIRPERSON: Yes, and then if you could also - I don't know what time would be convenient to start in the morning, I don't know what time your planes are flying out tomorrow?

MR BIZOS: Let's take half an hour now and start at nine ...(inaudible - no microphone)

CHAIRPERSON: Alright, we'll take a short adjournment now and then carry on for about half an hour and then start at 9 o'clock tomorrow morning.



CHAIRPERSON: Yes thank you. Mr Bizos, are you going to argue now or Mr Hockey?


Mr Chairman, you will have seen from our written Heads of Argument that we have, and I'm indebted to my learned friend, Mr Colin Kahanovitz, for having done the great bulk of the work in relation to identifying passages and putting the argument together.

CHAIRPERSON: Yes, thank you very much.

MR BIZOS: Mr Chairman, we believe that it is important to decide the matter of dis-importance on the facts and a proper interpretation of the Section, but before we come to the interpretation of the Act, and particularly Section 20, we must have a clear idea of what facts we content that the Committee should find disproved. And what I am going to do, Mr Chairman, is I'm going to give you - you'll see that the argument is in two parts, the one where there are submissions and interpretation and then the second part is a summary of the facts.

If we could go to page 2, I will give you note of the references so that you don't have to go and chase in the second part of our argument, where to find our argument. So I would ask you, where we say "The Early Learning Centre", then this you will find in paragraphs 115 to 152. That's the general section, but we will be more specific in giving you references in relation to the finding of each particular fact that we ask you to find.

And if we go on to paragraph 3, that is a general submission that we make, a main finding of fact and that is a conclusion and I don't want to give you any specific references there.

But if you could go to paragraph 4 where we say:

"The evidence of the applicants to the effect that the bombing was intended merely to frighten the members of the KTY ..."

it should have an M there as well we are told, as a proper acronym and could I ask you to please add it, so that we have the - we've had a complaint about it, a justifiable one, from the people involved. And what we would like you to note there is that it is particularly in paragraph 144, but in addition ...

"The evidence of the applicants to the effect that the bombing was intended merely to frighten the members"

Please go to paragraph 144, and what you will see, that the second part is called the summary. The references that I am going to give is - please also have a look at S, I will S as summary, the summary part of the argument ...

CHAIRPERSON: Yes, or B, because it's part A and part B.

MR BIZOS: Part A and part B, very well. I'm a bit worried about A, because I don't want it to be confused with bundle A, but if we could call it A and B, I have no problem. So it's A144 and B336, 338 and 342. That is where you will find the evidence why we say that this is what they said.

The B references are references to the evidence of Mr Calla Botha. The B references, 336, 338, 342 are - we will come to it later, I merely want to give you an overview, Mr Chairman, those relate to the evidence of Mr Calla Botha. And what we draw attention to and the reason why we give you those references there is because of Mr Coetzee's submission that Mr Calla Botha didn't know the purpose. Well, his submission is not well founded, because Mr Calla Botha in these paragraphs went out of his way in support of the main contention that it was merely to frighten them. So he was supportive in this regard. But we will come and examine it ...(intervention)

CHAIRPERSON: Sorry Mr Bizos to interrupt, just before it slips my mind, there was one point that I couldn't actually quite follow in the Heads, it was 154 I think, part A - sorry, I should actually deal with it when you're dealing with the Omar thing. It's just flashed into my memory now. But perhaps we can deal with it now.

MR BIZOS: Is it on 154?

CHAIRPERSON: Yes, 154 you say:

'It's respectfully submitted that they are not entitled to amnesty"

That's all the applicants?


CHAIRPERSON: And then you deal with it and then at the end of the story you deal with everybody but don't deal with Barnard. I don't know what the attitude of the victims is in regard to Barnard.

MR BIZOS: We will come to it, we want some specific instructions.

CHAIRPERSON: Because they ask for Van Zyl's application to be refused and Burger and Basson, but not Barnard.

MR BIZOS: Yes, we are going to make a submission in relation to Barnard, but I will disclose to the Committee why we have not had an opportunity of actually discussing it with our clients. Mr Omar is - we didn't want to say anything without discussing it with him, after all he's vitally involved in this and this is why we didn't make a specific submission.

CHAIRPERSON: Alright, I just wanted ...(intervention)

MR BIZOS: No, I appreciate that, but this was it. We were hoping to speak to him in the last day or two, but there have been Cabinet meetings and there have been train accidents and all sorts of things.

CHAIRPERSON: But you will make a submission concerning him?

MR BIZOS: But we will make a submission, definitely, because he's back in Cape Town and before tomorrow we hope to have a definite instruction.

MR COETZEE: Mr Bizos referred to me as having argued on behalf of Botha and it's in fact Mr van Eck who argued on behalf of Mr Botha. I don't want the record to ...(intervention)

MR BIZOS: Oh, I beg your pardon, I'm sorry. It's because of his absence that ...(indistinct - no microphone)

Then what we say is that if you have a look at paragraph 5, would you note that it's at paragraph 117, A117, and 117 deals with the whole of paragraph 5 up to 5.5. So this is where you will find the argument, Mr Chairman. And we say that:

"The allegation made in the amnesty applications of Webb, Burger and Basson that the police involvement was impossible, is false and was known to be false by the applicants at the time that their sworn statements were deposed to."

What we say is, please have a look at paragraph 118.

In relation to paragraph 7, please look at 121, B336, B338 and B342. This is again in relation to Calla Botha's evidence.

Now if we go to paragraph 8:

"The evidence of the applicants that Hardien was to be paid R30 000 merely to place in an empty hall a bomb not intended to kill or injure any person, should be rejected as false."

And we ask you to look at paragraphs 124 to 127 and paragraph 132.

CHAIRPERSON: I thought you said paragraphs 124 to 137.

MR BIZOS: 127. And in relation to paragraph 10, please see A131 and 144. And in relation to pararaph 11, see the same paragraphs as paragraph 8, that is 124, 125, 126, 127 and 132.

And paragraph 12 and paragraph 15 are to be read together, and please paragraph 129 to 144. We do not give references for paragraph 13, it is a submission on the evidence as a whole, but if you go to paragraph 14, we would ask you to look at paragraph 142 and 143. In relation to paragraph 16, 141, 142 and 143.

MR LAX: Mr Bizos, there's an obvious mistake in 16.2, where the word "hall" is used, you obviously mean building there.

MR 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.

CHAIRPERSON: But what about the submission made in this respect by Mr du Plessis? They were members of Brixton, they were policemen in the Brixton Murder and Robbery Squad, things weren't going too well there for some of them, and then somebody comes along and says: "Look, what about a career switch, better deal, better salary, BMW motorcar, opportunity to start your own business, a far better deal package-wise"? At that stage, at that time of the approach they don't know it's a hit squad or whatever that's moving in to assist the CCB, wouldn't most young men be tempted to join them and go and say: "Okay, well that's good, I've got a problem where I'm working, I've got hassles, I've got a much better deal, I'll go across"? They don't know exactly what they're going into, that it's ... and then it only comes later once they've made the commitment?

MR BIZOS: Well if they were impressionable young men and lacking of experience, there may have been something in their argument. We are dealing with a Colonel in the Police, Col Burger. We are dealing with experienced officers. We must also take Van Zyl as an example, and we do quote it here, that what happened to his patriotism once his business really thrived? Can't we look back what his predominant motive must have been when he actually joined it? And then also, but we will check the record overnight, we do not think that they joined in ignorance. One doesn't make a career change without asking what does it involve on the probabilities. I would submit that on the evidence as a whole, but we will look for definite passages overnight, that it is an oversimplification that they didn't know what they were letting themselves in for.

CHAIRPERSON: What about the argument that what is most important is that the act must be associated with a political objective, rather than the subjective political views of the perpetrator?

MR BIZOS: Yes, we will deal with that, Mr Chairman, because what we are - may I ask you that whenver you read this argument and you see "political offence", will you please read "an act associated with a political objective", and this is really ... and that has got to come within the four corners of the Act.

CHAIRPERSON: Because I remember the words at one of the hearings of one of the askaris, saying that when he was a member of the ANC, of the MK, he was a soldier with a conscience and then when he was turned and was an askari, he was a soldier without a conscience. So that doesn't mean when he was performing acts as an askari, because his political beliefs weren't all that relevant, what was relevant was that he was doing acts associated with a political objective.

MR BIZOS: We will deal with the position of the askari. And you know Mr Chairman, what I want to foreshadow is that we must be careful not to bring other facts into the equation in order to interpret this. First of all, it presupposes that there were no other factors distinguishing it. Secondly, that the decision was correct. Thirdly, that ...(intervention)

CHAIRPERSON: I understand that.

MR BIZOS: I think that the askari situation may well be distinguishable to these persons, because I believe that a person who had certain political beliefs and he was prepared to do things for the ANC, he is then caught, he is then taken into a form of detention, not like the one that Mr van Zyl was taken into, and he is made to turn, he has no options and he's not given a salary ...(intervention)

CHAIRPERSON: No, I'm not trying to equate the two, I'm just using them as an example of somebody performing an act where his subjective political views might - he might not have done it if he ...(intervention)

MR BIZOS: Well it depends, because there are three things as we say in this argument, there is motive, context and proportionality, those are the things. And the position of the askari who really burnt his bridges when he left a country, to a certain extent, but built the bridges and blew up the roadways once he has turned over, that his motivation, his circumstances are quite different to the situation of the people at Brixton Murder and Robbery turning over, in order to gain the benefits that they have. So that we submit that - and we will develop this argument when we deal with the requirements of motive, circumstance and proportionality.

But may I say, Mr Chairman - and I will develop the argument, but this business about applying the Act in such a generous way that the rights of victims disappear, is contrary to the spirit of the Judgment of the Deputy-President of the Constitutional Court, Mohammed, it's contrary to the provisions of the Act.

And I also, Mr Chairman, and with due respect, the argument is often made that there must be parity, the Afrikaners, and it was said here this afternoon, must not feel that they are misunderstood by those who argue cases against them or even possibly by those entrusted with the duty of granting it. Mr Chairman, you are administering an Act which has provisions, you are not there, with the greatest of respect, to make presents or because someone else has received amnesty, that they are entitled to amnesty.

And also this introduction of the Indemnity Acts, Mr Chairman, there is some misconception in relation to their effect. They didn't deal with amnesty, they dealt with indemnity. And what happened was - I believe that there is a difference between the grant of indemnity as an executive act by the President, who was then President de Klerk, where we had a simultaneous announcement that Mr McBride and Strydom, that was an executive trade-off, Mr Chairman. Your function is quite different.

CHAIRPERSON: Well it's known, the amnesty that we're dealing with in terms of this Act is unique, it's the first time anywhere in the world that amnesty of this nature has been granted, where people have to come forward, have to apply, we've got to consider the facts and the effect of the amnesty is also different, it's wider and we're taking away civil rights from people, etcetera. So it's a very unique ...(intervention)

MR BIZOS: What I am saying is that this argument that the left and the right must be equally treated, yes we agree, but not as a political trade-off as was done in the McBride and Strydom ... It may well be argued that neither of them would have got amnesty under this Act, but because there is an application pending, I don't want to ...(intervention)

MR LAX: Sorry, just a matter of fact, those were not indemnities, they were given under the State President's powers.

MR BIZOS: ...(indistinct - no microphone) Indemnity Act.

MR LAX: No, no, it wasn't under the Indemnity Act at all, it was simply an act of political grace, so to speak.

MR BIZOS: ...(indistinct - no microphone) those two ...(indistinct) of the presidential ...(indistinct)

CHAIRPERSON: ...(inaudible) you've got different types of indemnity. You've got those indemnities that apply to all sorts, category of persons who had left the country and others that came ...(intervention)

MR BIZOS: Sort of parole, so that - may I appeal to the Committee, Mr Chairman, to look at our argument which I submit is, with due respect to all our colleagues, based upon the facts and what we submit, the correct interpretation of the Section, and particularly the facts. Because I am reminded, Mr Chairman, by these arguments, that when the Professor was told: "But you know, your theories Professor, are all very well, but they don't fit the facts", his answer was: "Well it's too bad for the facts". Now we have to deal with definite findings of fact having made the findings of fact, and this is why our argument has taken this ...(indistinct). And if I may say so with respect, Mr Chairman, that I do not want to criticise the Committee, it isn't my place, that some of the bets decisions are those which set out 'these are the facts that we find proved, we apply the law, we grant amnesty or we refuse amnesty', not well you know, 'the bare bones of what is it and we grant amnesty or we refuse amnesty'. That is not the basis upon which the Committee is called upon to ...

CHAIRPERSON: Would this be a convenient time to adjourn, Mr Bizos?

MR BIZOS: Yes, thank you Mr Chairman. We'll start with paragraph 21 tomorrow, on page 9, Mr Chairman.

CHAIRPERSON: Then we'll adjourn to the same venue at 9 o'clock tomorrow morning.

MR BIZOS: Thank you, Mr Chairman.

MS LOCKHAT: All rise.