CHAIRPERSON: We have been given the somewhat illegible copy of the newspaper but I was shown the original which wasn't much better. You were going to give us some something too, weren't you Mr Bizos?

MR BIZOS: No, Mr Chairperson, I didn't understand that you wanted to receive the document or the plea as an exhibit but I think it would be safer if we did make copies and we will hand it in during the course of the morning. Thank you Mr Chairperson.

CHAIRPERSON: I don't know if that was recorded.

MR BIZOS: The newspaper ...(inaudible), the video was one, perhaps this had been a documentary should be given ...(intervention)

CHAIRPERSON: Well I think we'll call the newspaper A and we call ...(intervention)

MR BIZOS: The record before the magistrate B.


MR BIZOS: Thank you, we will mark it as annexure B and hand the copies in, Mr Chairperson.

CHAIRPERSON: We have on the papers annexures A, B, C, D, E, F, but this will be Exhibit A and Exhibit B.

I'm reminded that there has been an annexure A, so perhaps we'll call these 2 and 3? The oath was handed in as Exhibit A.

JUDGE DE JAGER: Oh, that would have been the original record?


JUDGE DE JAGER: ...(inaudible)

CHAIRPERSON: Right, Mr Mostert?

MR MOSTERT: Thank you Chairperson. I'd had the opportunity yesterday evening to study the evidence. It is my opinion that Mr Botha has already given all the evidence that he could possibly give, there is nothing further that he could add and under the circumstances I will not call him again as a witness.

CHAIRPERSON: Is that all the witnesses you wish to call?

MR MOSTERT: That is correct, Chairperson.

MR BIZOS: We do not propose leading any evidence, Mr Chairperson.

MR PRIOR: Neither do I, Mr Chairperson, we do not have any witnesses to lead, thank you.

MR MOSTERT IN ARGUMENT: May I continue? Thank you Chairperson.

Well Chairperson, we have heard evidence here yesterday, evidence given by Piet Rudolph. The Committee would forgive me if I say so and I accept that Piet Rudolph will also forgive me when I say this. Many aspects of his evidence created the impression with me that within his organisation the Order of the Boerevolk with regard to certain aspects there may have been possible confusion in as far as I would say that I have the idea that Mr Rudolph himself, regarding certain aspects, appears to be reasonably confused. Thus from what I wish to say to you is that when I study his evidence I would submit to the Committee to take a holistic approach and to summarise the core of what he has attempted to tell you.

Indeed it is so that he attempted to sketch for you what the struggle of the Order of the Boerevolk as an organisation was about and the crux of that is then for the restoration of the Boer Republics as they existed and came to an end in 1902 after the Anglo Boer War. He attempted to create an image of the history for you and it is so that under those umbrella ideals various things took place which, depending upon one's personal viewpoint, one could either be favourably inclined towards or one could condemn such things.

The situation is as such that Rudolph, among others, testified regarding the attack on Melrose House, the British Embassy and then also the attempts on the Ministers. What also emerged quite clearly is that he admitted unequivocally that the newspaper report which was submitted as an exhibit was indeed told by him in such fashion to the reporter from the Pretoria News.

To return to the holistic approach, regardless of all other aspects pertaining to Rudolph's evidence, it can be accepted as given that Piet Rudolph's motivation was purely political in it's objectives. If it was not for political objectives which motivated him then Piet Rudolph would never in his life have appeared in court. Now a similar argument is also of application to Piet Botha who acted under the instruction of the Order of the Boerevolk, thus the situation is simply that when we examine the stipulations of the Act with which we have to do here, then it is a complete fact that politics was the motivation for both these persons. What is significant at this point in terms of the considerations that you would give to this matter is the fact that Section 20 of the Act presents three prerequisites to which an applicant must comply in order to obtain amnesty. Section 20 continues and then establishes certain guidelines which the Committee may apply in order to obtain the necessary information so that they can make a decision as to whether an offence complies with the prerequisite and whether or not it is attached to a political objective. Then I would go as far as saying that if an applicant does not comply with any one of those prerequisites in a precise manner then the Committee would still have the discretion with regard to the facts that have been presented to them to be able to find that there was indeed a political objective. Thus I would argue that it is not necessarily a question of binding prescriptions but guidelines in order to determine, as I have already said to you, if one had to extract the political motivation from this matter then Piet Botha would never have appeared in court at all and he would also not be sitting here today.

Regarding Section 20, if we study the document, Section 21(a), the first prerequisite is that the application would comply with the prerequisites of this Act. In my humble opinion I would submit to you in this regard that the applicant indeed has complied with the prerequisites in terms of this Act. He has made the necessary application, the application has been dealt with by the offices of this Committee in terms of Section 19. If he has not complied with the prerequisites of the Act, Section 19 then creates the onus on the officers of the Committee to make enquiries so that any problematic issues pertaining to an application could be rectified. Thus the situation is that at the time of this application's referral for a hearing in terms of Section 19.4, the prerequisites of the Act had to have already been complied with. Then I would argue that it is common cause that the prerequisites of the Act have indeed been complied with and that is with reference to Section 21(a).

Now I would like to leap towards Section 21(c) and that is that the applicant has provided all the relevant facts in a full disclosure. Once again I would submit to you that the applicant has indeed made a full disclosure of all the relevant facts to you. I came to this conviction specifically yesterday evening after I listened to Piet Rudolph's evidence and after I once again studied the evidence of the applicant and I am satisfied that the information and knowledge that he possessed was disclosed by him to this Committee without beating around the bush. In fact, his version has since the beginning of the court sessions up to his evidence before this Committee, been the same story over and over, completely. Therefore, within his framework of knowledge there is nothing further that he could have said before this Committee. Under the circumstances he then made a full disclosure of all relevant facts.

With reference to Section 21(b) I would like to elaborate somewhat and refer the Honourable Committee to sections of the evidence which was given by Mr Botha. In the first case I would refer you to page 8 of Botha's evidence in the record in the session of this Committee. From the 14th line to the bottom approximately, Mr Botha testifies as follows:

"Yes, I think so, Chairperson. I would just like to explain also that at the time when I was recruited the Order of the Boerevolk had already declared war. Official war was declared against the former National Party Government. They did this by means of a video which was produced by the leader of the Order of the Boerevolk, Piet Rudolph, after he stole the weapons from the Air Force head office in Pretoria."

Now in the first instance, here we have Piet Botha who is a cell leader of the Order of the Boerevolk. In the first instance, he is under the definite impression that he, by means of his organisation, was in a situation of warfare against the government and other related organisations as it will later appear.

Then I would like to take you to page 9 of the same record and I would like to submit to you specifically the stipulations of this oath to which this man bound himself. He took an oath to bind himself to the freedom struggle of the Boer nation. Regarding this I would like to mention the following, by the way, it would appear that in South Africa and I accept this as of application to the rest of the world, there was a tremendous misconception regarding the struggle of the Boers. The idea which existed in the world, for some or other reason, was that for the Boers it was all about the concept of White supremacy and that is definitely not the case as it appears from yesterday's evidence which was given by Piet Rudolph. Here we have a man who binds himself by oath towards the restoration of the Boer republics as they existed on the 30th May 1902, the destruction of the current South Africa as it existed at that point. Then the steps of the National Party government towards its collaborators which supported it and the ANC and the S.A. Communist Party, the commitment to fight these organisations with everything in his power even if it meant sacrificing his own life in order to do so.

Furthermore, that:

"In loyalty to the struggle, I would execute all instructions that would be issued to me",

with the emphasis on "all instructions",

"....that I would ensure that any instructions that I may issue" - that I may issue - "in order to achieve the aforementioned ideal would be executed. Furthermore, I declare under oath that I would not take any instructions from any other institution of any nature whatsoever in order to infiltrate any member of the Order of the Boerevolk or institution which promotes the restoration of the Boer States or the former South African Republic or the Republic of the Orange Free State. Neither will I infiltrate or spy or report on any such institutions whether verbal, written or in any other form."

That is the crux and the essence of that to which Piet Botha bound himself. He is a soldier and that has been his evidence.

On page 12 at the bottom and at the top of page 13, as in other places, he testifies that he, as a cell leader, felt that a counter-attack had to be launched against the beach attack and he also then exercised his discretion. Regarding that particular aspect, Piet Rudolph testifies and confirms that under the circumstances and given the tremendous level of confusion in the Order of the Boerevolk at that stage, Piet Botha then had the necessary discretion to take such decisions and to plan and execute such action.

Regarding the beach attack, I refer you to Piet Rudolph's evidence and naturally also to the fact that applications were submitted for amnesty before the Amnesty Committee with regard to this incident.

Furthermore, on page 13, Botha testifies from line 12 onwards that they succeeded in their objective with the attack as can be seen from a report in the Sunday Tribune of the 14th October 1990. Regarding this I would just like to illuminate a number of aspects for you. Racism is a definite fact in this country regarding the conflicts of the past. I would like to submit my view and the view of the Committee, it is one of the things which needs to be openly admitted to by everyone in this country for once and also requires a commitment to rectifying the situation. There can be no doubt that this attack had a definite underlying racist turn, that is not to be doubted. But in the same breath it must added that it was absolutely in the course of the conflicts of the past and this then places the attack one hundred percent within the sphere of what can be associated with a political objective.

To continue on Piet Botha's evidence, when he said he did not write the rules, the attackers that morning on the beach made the rules and he played the game according to those rules which sounds to me to be perfectly acceptable under the circumstances under which he was recruited and what he was fighting for. You must recall that underlying this entire story there was a definite motivation for the protection of the self and in this case in an operational sense it was a question of Blacks against Whites. What I would like to submit to the Committee is exactly this man's action. I will later return to the specific stipulations in Section 20. At this point I would just like to state that this man did not establish his cell and call them together and tell them "we are here, we are involved in a war, let's go and shoot randomly and kill a whole bunch of Blacks just for the fun of it." He acted in reaction to an event which took place. In other words, he was not the initiator of what took place.

I would also like to put it to you differently. If those men had not launched that attack on the beach that morning, I can give you the assurance that I am convinced within my own mind that Piet Botha would not be sitting before you today, that incident would never have taken place.

Very well, then I would like to take you to page 44 of his evidence, the third line. In terms of the question which was put by the Honourable Judge Ngoepe:

"Now did you think it would be in line with the policy and instructions of the Boerevolk?"

And Piet Botha's response is as follows:

"I thought so yes, seeing as at the time of my inception of member of the Order of the Boerevolk it was said to me that if a White were to lose his life due to Black organised violence, ten lives would have to be taken for every life, for every White life which was taken during such an attack. That was the policy. It was an instruction which was issued to me and I executed it."

But I would like to fix your attention to the beginning of his evidence there:

"I thought so, yes."

The moment that we refer to thoughts and ideas, then we are speaking of a putative situation. In other words this man, in that state, is of the fixed conviction that those were his instructions and that is what he is supposed to do and then it is so that due to the mass confusion that reined in the Order of the Boerevolk, Piet Rudolph admitted that he did not swear Botha in personally and that he conceded that such instructions were indeed or could have indeed have been given during Botha's inception. So Piet Rudolph's evidence does not assist us much with regard to that aspect and the Committee is then confined to the evidence of Piet Botha

CHAIRPERSON: Well Rudolph's evidence does, does it not, indicate where this may have sprung from, this ten to one, that he did tell us, he did make such a statement to the press?

MR MOSTERT: That is entirely correct, Chairperson.

Then the situation is furthermore, in order to return later I am submitting these issues to the Committee so that I can return to Section 20 at a later stage in order to examine the individual guidelines and to measure the evidence on those terms. One can put numerous questions and also make numerous arguments regarding how this would have promoted the fundamental objectives of the organisation or whether or not they would have placed these objectives in a detrimental position. But the fact is that Piet Botha, in terms of that oath, undertook to execute all instructions that would be issued to him. Piet Botha was under the specific impression that he had those instructions and Piet Botha also executed those instructions. That is the crux of the matter.

On page 47, lines 8 and 9, Piet Botha testifies specifically:

"It wasn't personal, this was about other motivations or ideals or whatever one would choose to term it, but it was not a personal act against another group based upon personal considerations."

On page 51, lines 4 and 5, the Chairperson asks him if he knows where that decision was taken. The decision pertaining to ten Blacks for one White and he says no, he does not know where the decision was taken. Piet Rudolph indeed passed more light on the subject with specific reference to the newspaper clipping and I'm under the impression that it was dated May 1990. It was either May or June 1990.

And on page 52, line 13, Botha once again confirms that: "When they recruited me as a member, then I received these instructions."

And Botha was under the impression to such an extent that he was acting within the context of his instructions and within the framework of the policy of his organisation.

And on page 61 there is evidence on line 4, the day after the attack he reported back regarding the attack, he reported back to his organisation.

If you would just grant me a moment?

He also confirms, as Rudolph stated at that stage, Rudolph was in detention.

On page 75, Botha once again confirms upon a question which has been put by the Honourable Judge Mwepe that it was his instruction, ten Blacks for one White.

Then I would just like to jump ahead and take you to the evidence of Smits on page 108, line 8. Smits testifies and confirms these instructions in the regard that he states:

"Mr Botha only told me that the Order of the Boerevolk had given instructions that in politically organised political violence where one White would die, ten Blacks would die."

Now in this case, there was evidence before the Committee and there has been much argument surrounding this, but it is common cause that the men who launched the attack on the beach appeared to have a political objective, they appeared to be individuals wearing PAC tee-shirts and Smits states furthermore:

"He told me this the first time when he gave me the oath to read."

Thus Piet Botha was to such an extent under this impression regarding his instructions that he conveyed this to his cell members before the beach attack even took place.

Now I would like to return to the Act. Section 22 refers to any member or supporter of a generally known political organisation or liberation movement, on behalf of or in support of such an organisation, bona fide, in promotion of a political struggle which was waged by such an organisation or institution against the State or any former State or any other generally known political organisation or liberation movement. Whatever ones view may be of that and in terms of what my learned opponent said yesterday afternoon, I wish to submit to the Committee that when Adolf Hitler and Rudolph Hess and a number of other men established the Nazi Party they were a political organisation even though they may have only numbered five and look what happened to them. The fact of the matter is, we have here according to the evidence of Botha and the evidence of Piet Rudolph and the evidence of Piet Rudolph an organisation which was generally known, a political organisation or a liberation movement as it has been defined, I do not want to involve myself with his technical distinctions, but the fact of the matter remains that here was a political organisation or a liberation movement or whatever it may have been, which was generally known. Indeed at that stage it was so well known that they had already launched various attacks and that much publicity was linked to the organisation, much publicity was also given on television for the video which has been submitted. Much publicity was leant to Rudolph as the refugee leader of the organisation. So it is my argument that within the framework of Section 2(a) the Order of the Boerevolk complies with the stipulations. On the same basis this argument can be propagated in terms of 2(d). And then with regard to sub-section (d) and sub-section (f), any person in paragraphs (b), (c) and (d), who believed on reasonable grounds and that is the core word in this story, who believed on "reasonable grounds" that he or she operated within the course and scope of his or her duties and within the course and scope of his or her implied or expressed authority. In this case Piet Botha had express instructions, according to his evidence. According to Piet Rudolph's evidence, indeed he also had further discretionary capacities and it is quite obviously clear that he believed on reasonable grounds that it was not only his duty to do so but that his organisation expected of him to do so.

Sub-section (g) continues and elaborates even further than sub-section (f) by taking it so far in order to create an even greater impression regarding the intention of the legislature any person who associates himself or herself with such an act or omission which is committed with the paragraphs a, b, c, d, e and f.

Then I will continue to sub-section 3, whether a specific act is attached to a political objective and the following guidelines are examined and that would be the motivation of the person who committed it. In terms of the evidence which I have submitted to you and what I have said to you in terms of Section 22, the motive of Piet Botha was exclusively to comply, regardless of any other reasons, to comply with the stipulations of that oath which he took. This places him directly below the Order of the Boerevolk. That is the case in as far as it concerns sub-section 3(a).

Section 23(b) refers to the context within which the offence or omission was committed and more specifically whether the act, omission or offence was committed in the course of, or as part of a political uprising, unrest or event or - and here we have the key word - in reaction to it.

Then I would like to submit to the Committee that Piet Botha took his action in reaction to such a political event or unrest, if you will, in terms of what took place that morning on the beach and this is also clear from his evidence.

CHAIRPERSON: Can I disturb you at this stage and ask something factual, which I should perhaps have asked Mr Rudolph or asked Mr Botha to be recalled for? The evidence we have, as I recollect it, was that at this stage the Order of the Boerevolk was a very small organisation, that its aims were the restoration of the original republics. But on Mr Rudolph's evidence they extended their sphere of influence into Natal through the Vryheid area and the also looked towards Richards Bay, presumably seeking a port in the event of their succeeding. This would mean, would it not, that Mr Botha's cell would be one of the very few cells in Natal? So it wouldn't be surprising that if he felt something had happened in Natal that he should take action. In other organisations one might have been somewhat surprised that someone from Richards Bay should come down to Durban, he'd rather expect his Durban branch to take care of it. But there wouldn't have been a Durban branch on the evidence we got so far of the Order of the Boerevolk, would there?

MR MOSTERT: Indeed I accept it as such, that you are one hundred percent correct, Chairperson.

Furthermore, I would like to refer you to sub-section 23(e) and that is whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of an organisation or institution. Please note that reference is made to institution here and not to a political organisation or a liberation movement. Furthermore, a liberation movement or a body, which is also not brought into direct context of which the person who committed the act was a member, agent or supporter. Now in this regard, it is the evidence before you and I must confirm this, it is the indisputable evidence before you that Piet Botha received an instruction from these persons who recruited him and who swore him in.

Then I would like to take it further. The second prerequisite is that Piet Botha at all times in this incident acted also on behalf of that organisation to which he was sworn in by that oath, so much so that as I have presented it to you from his evidence, he reported back to someone who, by nature of the situation, he did not know.

JUDGE NGOEPE: Sorry, Mr Mostert? You say you want to emphasis that point and I think you are mentioning it for the third time since you started arguing. Which instructions did he get?

MR MOSTERT: I beg your pardon Chair. Ten Blacks for every White life. That is the instruction that he received upon his being sworn in.

JUDGE NGOEPE: Even if innocent, is that what you're saying? Any ten people, even if they are innocent, is that the kind of instructions he got?

MR MOSTERT: Indeed that is his evidence, ten Blacks for every one White.

JUDGE NGOEPE: Who gave him the instructions?

MR MOSTERT: Once again, according to his evidence as I have submitted it, those persons who swore him in and made him sign the oath. Those are the persons that are unknown to him, according to his evidence, because they were wearing balaclavas.

JUDGE NGOEPE: So he gets instructions from people he doesn't know, whose faces are hidden in balaclavas, they say to him "kill any ten Black people". Is that what happened?

MR MOSTERT: That is correct, you will recall from the evidence that he, in his capacity as a committee member of a financial committee of the AWB, went to the Free State and there where they converged and training took place, you must recall that this man was completely within the AWB milieu.

JUDGE NGOEPE: I know that but I'm asking you this question against the background of Mr Rudolph's evidence that the policy as he understood it and as he also understood the sentence "one to ten people", he did not mean "any" Black people, he did not mean innocent Black people?

MR MOSTERT: But the fact of the matter is that Piet Botha did not know that.

JUDGE NGOEPE: Because he got instructions from unknown people with balaclavas whose names he doesn't know that he can go and kill any Black people?

MR MOSTERT: Indeed. I might be even able to address you further on that aspect. Piet Rudolph testified that he himself did not know who swore him in, but he did know that Piet Botha had to be sworn in and furthermore, that these persons who swore him in - it would have been Piet Bredendal according to Piet Rudolph's knowledge.

CHAIRPERSON: Wasn't it the evidence that Rudolph told Bredendal to swear him in but he doesn't know if Bredendal did it himself or if he got other people to do it?

MR MOSTERT: Indeed, Chairperson. Indeed that is the evidence. Thus, what I'm trying to submit to you, is that Piet Botha, regardless of the fact of whether or not those men were wearing balaclavas, or let me say nonetheless, Piet Botha was specifically under a definite impression and it was his conviction that he had such instructions and that is why I said that to you with reference to Section 22(f), that on reasonable grounds he believed that he had these instructions and furthermore I must state, that Piet Rudolph conceded that such instructions could indeed have been issued. I must state this, in a situation where Piet Rudolph was placed on record by the press that it was his point of departure to kill ten Blacks for every White. Unfortunately, this is also a definite fact. If one studies the content of the report that they did not reflect the meaning that Piet Rudolph attached to it within his own mind. Piet Rudolph was quoted in the press that ten Blacks should die for every White life that was lost and unfortunately, neither I, nor the Committee Members, nor Piet Botha had the privilege of studying the meaning that Piet Rudolph attached to it in the report. As it appears there it is simply "kill ten Blacks for every White life that is lost".

JUDGE NGOEPE: Which newspaper are you referring to?

Because the one we have speaks of Welkom. It's not just "kill ten Black people for one White person killed" it refers to Welkom, the one I have? There it confines the operation strictly speaking to Welkom?

MR MOSTERT: Entirely correct, that is a fact. However, you must recall that the men who recruited Piet Botha indeed recruited him in the Free State and we have no other choice but to accept Piet Botha's evidence because there is no other evidence to the contrary that these men gave him the instructions as such.

JUDGE NGOEPE: Before you leave that, these people would not have told him that he shouldn't kill any innocent Black people, they failed to tell him that?

MR MOSTERT: Indeed, based upon the evidence it is so.

JUDGE NGOEPE: They also failed to tell him, I don't know if that is also your argument, they also failed to tell him that in such situations don't take any action unless, without prior approval by Mr Rudolph, they also failed to tell him that?

MR MOSTERT: Based upon the evidence before this Committee, definitely yes. At no point did Piet Rudolph or Piet Botha testify that he had to report back. He testified that they gave him those instructions that when an incident such as the incident on the beach took place, he would have to act and they gave him the ratio of ten to one. That is the evidence that we have and that is the evidence that we must work with and as I've already stated, it is indisputable evidence.

JUDGE KHAMPEPE: I don't know if I recall the evidence of Mr Rudolph correctly on this very pertinent issue that the people who were charged with the recruitment of cell leaders were informed by him of the meaning of this one to ten ratio and that he had tried to qualify that formula by specifying that the Black persons that he had to be told had to have some connection to the killing of White persons?

MR MOSTERT: Indeed, that was Rudolph's evidence. He stated for one person, namely his deputy, the Bredendal person, the Bredenham person, but the situation is as such that Piet Rudolph conceded to that particular point that these instructions could have been conveyed without that particular qualification and as I have already submitted to you, it is once again confirmed by Piet Botha's evidence, he did not obtain this on a qualified basis or according to qualifications.

JUDGE NGOEPE: If he was not told "don't kill any innocent Black people" and if he was also not told to, where loss of life would occur, to consult first with Piet Rudolph, did he then - what he did, did he then still remain within the policy, the framework of the policy of the O.B. as articulated by Mr Rudolph on these important aspects?

MR MOSTERT: I can give you a very elaborate answer on that, but the fact of the matter is, what is the policy of an organisation? If Piet Rudolph specifies it in a certain manner, would that then constitute the policy? Or is the policy that which the subordinates apply? One could argue about that but to place it within the framework of the Act for you, Piet Rudolph...(intervention)

JUDGE NGOEPE: From whom must we determine the policy of the O.B.? Should we not go to Mr Rudolph?

MR MOSTERT: Indeed as the leader of the O.B., if I understand the evidence correctly, it appears to me as if the Order of the Boerevolk was a complete dictatorial type of organisation, that the policy was determined by one person alone and that was Piet Rudolph.

JUDGE NGOEPE: We know that and he has told us what the policy was, the policy was don't kill innocent people and where it concerns loss of life come back to me first? We heard that policy and that's why I'm asking you if your client did not, for whatever reason, did not act in conformity with those, can you still say that he acted within the framework of the policy?

MR MOSTERT: That is debatable but I would like to refer you back to Section 20.2(f) and that is why I have gone to the trouble of presenting the evidence to you, the evidence of Piet Botha, because Section 20.2(f) states that a person who believed on reasonable grounds that he operated in the course and within the scope of his duties and within the scope of his or her express or implied duties.

JUDGE NGOEPE: Except that when he was asked, when he testified, when he was asked why he did not clear this up first he said he did not have time?

MR MOSTERT: I beg your pardon, I missed something? Could you repeat please?

JUDGE NGOEPE: He said, when he was asked in his evidence, when your client was asked during his evidence as to why he did not consult first, he said that he did not have time to do that which would mean that he was aware of the fact that he had to clear this up. He cannot therefore have had a reasonable belief that he could act without consulting when he knew that he had to consult?

MR MOSTERT: I must differ from you there, Chairperson. He gave such evidence but furthermore he stated, if you study his evidence, he also said that he had discretion and that is what Piet Rudolph also confirmed yesterday afternoon, he confirmed that Piet Botha indeed possessed such discretion. You see, here we have to examine the practical course of events. These other men went to the beach in the morning. These guys heard the thing, he has instructions regarding what must be done. Now he has to immobilise his men and from Piet Botha's evidence it was clear that he had to take swift action because the two had to be brought into association with one another. For him it was a question of utmost importance that the two events be associated with each other, that the one would emanate from the other even if he had to wait for two or three months, it would not have the desired effect. So within the context that his actions required speed, according to his thought process at that time, it was vital for him to exercise his discretion on ground level because he was the man who was in charge on that level.

JUDGE KHAMPEPE: Mr Mostert, if we are to follow your submission, one has in mind the evidence that is now before us of Mr Rudolph that on issues, on any issues, which related to the loss of life, ordinarily consultation had to be afforded. Mr Botha would have been expected to have consulted with Mr Rudolph himself in this situation, that's what he would have done had Mr Rudolph been available, is that not so?

MR MOSTERT: This was Rudolph's evidence but if we look at Rudolph's evidence, then there was such confusion at that stage in this organisation that Rudolph specifically conceded that under the circumstances Botha indeed had discretionary capacities, which he exercise, which Botha exercised according to Botha's evidence. However, the further fact is this, the evidence that we have, that we can work with, is that this organisation was recruited and put together on such a loose foundation that Piet Botha was recruited or sworn in after Piet Rudolph was arrested and nowhere is there any evidence which states that Piet Botha had this knowledge. On the contrary, Piet Botha's evidence, which we must accept, tells us that he did not have any knowledge about it, that he did not know anything about it. In other words, if these men had recruited him and he had to do it and they told him, then Piet Botha would have said so before this Committee because in my mind I am completely convinced that Piet Botha has gone to the greatest effort to make a full disclosure of all relevant facts before you. Furthermore, it was never put to him by anyone during his evidence that there were ever anything like that. So, unfortunately, that is the situation that we have. Piet Botha cannot add anything to his evidence because what he testified is what took place, that is the whole story. So in light thereof and particularly with reference to Section 48 of the Act, the Repeal 48, the Repeal and reference to the sections from previous Acts which are also on application, we also have the guidelines from the earlier Acts which concur more or less with the guidelines within this Act. Perhaps I could read it to you for the sake of completeness and this is an Act 51/1992. It states in this Act:

"Unless the case appears to be different, act with a political objective means any act or omission which was committed with the eye on a political objective or in promotion of or action against..."

And then we have the scale again:

"of an objective or interest of an organisation, institution or body of a political nature or with the bona fide belief..."

And once again, we have the bona fide belief.

"...that such objective or interest would be served or with the approval, or under instruction of, or in accordance with the policy of such an organisation, institution or body or in reaction thereto."

So then we have returned to the concept of reaction upon which was suggested, promoted or instructed.

Thus in conclusion, I would once again fix the Committee's attention on these sections of the Act which I have just dealt with and have tested to the evidence that we have and I submit that these are guidelines. The core of the matter is then and to return to Section 21(b), whether the act, omission or offence of, to which the application applies, is an act which associated with a political objective and which was committed during the course of the conflict of the past in accordance with the stipulations of sub-section 1, 2 and 3.

Then I would submit to you that in my mind I have no doubt whatsoever that this incident, which took place here, complies with what the legislation states here. The intention of the legislation is clear and the legislation attempts to draw the issue as broadly as possible and not to confine it. I would submit that based upon what I have submitted to you, the applicant indeed has complied with the three prerequisites as set out in the Act an furthermore, the Act states that if he has complied, as such, the Committee would then grant him amnesty.

Now we have the situation, that with the danger of repeating this, a very simple test can be applied and it is as I have stated since the beginning, if politics can be extracted from this, then this incident could very well never have taken place or conversely, as a result of politics this incident indeed took place. The facts will speak for themselves and will speak the loudest.

If you would grant me a moment, I would just like to obtain instructions from my client in case there is anything specific that he wishes for me to add. Thank you Chairperson.

Thank you Chairperson, I will stand by that.

CHAIRPERSON: Mr Bizos, how long do you think you'll be?

MR BIZOS: At least an hour.

CHAIRPERSON: Well it seems to me that some people have been here since 9 o'clock this morning, one should take the adjournment at this stage rather than interrupt your address. We'll take a short adjournment at this stage, fifteen minutes. That is, we hope for once we can all be back here at five past eleven.



MR BIZOS IN ARGUMENT: ...(inaudible) meant by asking you to adopt a holistic approach. If he meant on the somehow or other principle, I would submit that that was going to be rejected.

What we submit is this, that the issues as to whether or not amnesty ought to be granted are on the application of the facts to the provisions of Section 20, the section is to be viewed as a set of pleadings which determine the issues before you and for the necessary exercise, it is necessary, with respect, in the first instance to make findings of fact and that a findings of fact must be made on a balance of probabilities. The section says if the Committee is satisfied. Now there have been various submissions from time to time made as to what satisfy means in this context. We submit that it mean that the applicant must establish on a balance of probabilities the facts up on which he relies in asking for amnesty. It may not be amiss for me to inform the Committee that the matter was fully argued before a full bench of the Cape Supreme Court on the question of onus where it was submitted that they only had to establish a reasonable possibility that what they were saying was true. For what it is worth, for what it is worth, his Lordship Mr Justice Connery expressed surprise at this submission. The matter was fully argued with references to authority as to the meaning of satisfy and the interpretation of the Act. For what it is worth, Mr Prinsloo who was appearing for the applicants conceded that it was to be on a balance of probabilities. However, we were informed, Chairperson, that that full bench judgement is likely to be delivered before the 16th December and that it will be available for that purpose. But it is clear that the applicant has an onus to establish on a balance of probabilities the facts.

Now it is tried law, in our submission, that the mere fact that an applicant has said something is not necessarily to be accepted merely because there is no evidence to the contrary, if what he says does not amount to a probable fact on the facts as a whole. Now in relation to the matters contained in this section, we would urge the Committee to make the first finding of fact that there has not been full disclosure by the applicant, particularly in relation to the time when the place where and by whom the order that he claims to have received was given.

The second finding of fact that we ask you to make, that even if his evidence cannot be rejected outright, as not having established that an order was given, that the second finding of fact, that he was not bona fide in saying that he believed that the order was that he had the authority to kill indiscriminately any ten Black people as an act of revenge for anything that other Black people may have done. I submit that on the probabilities those two facts should be found and I will submit the reasons for it.

If we take the evidence of Mr Rudolph, that his was a principled organisation, that it was proud of its historical, moral high ground for fairness and how influenced it was by the injustice done to 26 000 women and children in the camps. It is to be assumed that the applicant, Mr Botha, must of necessity been a bird of a feather, must have shared that pride in the fairness of the Boere, as they prefer to call themselves.

CHAIRPERSON: Is this being recorded?

MR BIZOS: If you were to find as a fact that that order as given and it was received in good faith, would fly against the general and particular probabilities that the persons who gave the order, presumably the masked men, who administered the oath and gave this order, were either unaware of this moral high ground that their leader claims, or if they were they disregarded it and they gave this - I better not exaggerate the nature of the order - this order so contrary to the proud tradition that the Boere are claiming for themselves, that they went and said go and kill indiscriminately any ten Black people, any White person that was killed. That is so highly improbable that it should be rejected out of hand.

It is also highly improbable that the applicant would have accepted such an order without asking the reason why. Not in relation merely on the lack of morality on it, but one would have expected a cell leader, such as the applicant, to ask the question, "but how does this further the political objective of our organisation? How does it serve the purposes of the Boere? Is it not going to be counter-productive?" The answer, if they were men of this moral high ground for which their leader claims, would have been obviously "No, surely this cannot be in the interests of the Boere. If anything, we will be castigated by public opinion, including the majority of the Boere who we're supposed to represent. We will be characterised as an unbridled terrorist organisation for which does not deserve the support of anyone".

So that if those to findings of fact are made then in terms of sub-paragraph C of the section, the enquiry is at an end, he has not made full disclosure. The question may well arise: well, in his position what could he have said about it? He could have told us what steps he took from other persons in this small band that he joined. Who was responsible after the detention of his leader and who might it have been? There has been none of that.

What is also significant about the evidence of this applicant, Chairperson, is that this evidence that it was an order given to him at the time of the oath came late in his evidence in answer to Mr Justice Mwepe. It didn't come at the time that the oath was - when he was giving evidence of the administration of the oath. The other probability is this, that if one analyzes the content of the provisions of the oath, it does not state anything about killing and certainly nothing about killing Blacks as acts of revenge for the death of any Whites. Again, one would expected in order to prove bona fides, the applicant to say why at the time that this oath was taken he did not enquire what was it that I have to do in order to this Boere body? You may have noticed, Chairperson, that I avoid the use of organisation or movement because I will have to make a submission later.

Also, Chairperson, after the event - after the event, he wrote a letter to Archbishop Tutu which you will find on pages 334 to 335 and on top of 335 and this is after he had been through the mill of the hearing and after his application for amnesty had been refused and when he became aware of what the requirements were because of his examination by Members of the Committee and the cross-examination of my predecessor, and he says the following in a statement which he has not seen fit to go into the witness box anew in order to tell us about it:

"I was further told that the violence prevailing ..."

This is the top paragraph on page 335, Chairperson.

"I was further told that the violence prevailing in the country at the time was mainly Black on Black violence but that with the unbanning of the ANC, PAC, SACP, it was going to become Black on White violence. The slogan of the PAC at that time was 'one settler, on bullet.' I was told of an incident that had allegedly taken place in Durban in which members of the Police Force who were investigating a routine complaint were drawn into an ambush and gunned down. I was told that because of this the O.B. had formulated policy that for every White person who was killed as a result of organised Black political activities, ten Black people would have to be killed. I was ordered that if ever such a situation arose within the Richards Bay, Durban area ..."

Which really answers the question raised by the Chairman of the Committee,

"...I was to implement this policy immediately."

Now, what I want to say is this, that we could have tested if he had given this evidence ex post facto as to what had happened in relation to the members of the Police Force investigating this and who was, that really was responsible for that, in order to lend credence as to who was to be killed in the event of the death of White people. But it is significant that who was killed in the second last line:

"who was killed as a result of organised Black political activities"

which qualifies it to mean not indiscriminately, innocent people, men and women, but as a result of organised Black political activities. Now had he given evidence we would have been able - he would have to satisfy you that he bona fide interpreted that on the assumption that what he's saying here is true because it may well be that there was no such order, nor could such an order have been given, if Mr Rudolph is to be believed. But even if he is to be believed on this, he has led no evidence to satisfy you that he believed this was an organised Black political activity. It is submitted that elevating the terrible acts done by people purporting to act on behalf of the PAC on the beach front is hardly activity of organised political activities. So that in our submission, again this supports that the improbability that an order was given or if anything like it was given, that it was bona fide believed to be in accordance with the policy of the organisation or in the furtherance of the aims and objects of the organisation.

I want to turn to the newspaper report. Would that be Exhibit 2? "I will shoot ten Blacks for every White - Rudolph", that's the one. As was pointed out by his Lordship Mr Justice Mwepe, this merely referred to what Mr Rudolph would have done and he explained it in evidence that he would have sought people out in the compound in order to have a revenge attack and certainly not that he was called upon - he was calling on his supporters to kill innocent people. In any event, Chairperson, from my memory of the evidence given by the applicant, nowhere did he say that he saw this or that he was influenced by it, he specifically confines himself both to members of the Committee late in his evidence that it was at the time that the oath was taken and also that he repeated that on page 335.

So that, I submit, as was the case argued in the High Court that if there in fact was not full disclosure in relation to this and if there was no bona fides too, that would be the end of the matter. But I will proceed to argue that there are a number of other bases upon which the application should be refused and I will turn firstly to how the provisions of Section 20.3 are to be interpreted and applied.

Whether there are requirements or directives or guidelines is, with respect, a semantic argument. What we submit is that there are a number of requirements. If one of them is not true amnesty may be refused but not axiomatically so. The section envisages that it is a valued judgement which has to be made by the Committee after it has examined the evidence and reached a conclusion that on balance the requirements have not been satisfied and if so, amnesty should be refused. It may be that if the Committee is satisfied in relation to the non-compliance with one and there are doubts in relation to the others, that the Committee's valued judgement will be strengthened by saying there is considerable about the one, there is doubt about the others, taken accumulatively, the applicant has failed to discharge the onus and that he would be tantamount a question of fact, having regard to the application of the facts as deposed to.

Now this is why I say that each one of these facts have to be approached and the evidence has to be evaluated. Let us deal with, firstly, the provision of 2(a) which provides:

"any member or supporter or a publicly known political organisation or liberation movement on behalf of, or in support of such organisation or movement, bona fide in furtherance of the political struggle waged by such organisation or movement against the State or any former State of another publicly known political organisation or liberation movement."

For the purposes of this sub-section, the evidence has to be examined whether this was a publicly known political organisation or liberation movement. It is not to be assumed that the legislature used those words gratuitously. What is a "publicly known political organisation"?

Now Mr Rudolph, in cross-examination, said that they did not regard themselves as a political organisation but they regarded themselves as a liberation movement. In the context of our recent history and it would have to be our recent history and not what happened in 1902 which was superseded by the formation of the Union of South Africa which was superseded by the constitution or adoption of a Republic and constitution in 1961. Liberation movement, in our recent history, meant organisations which sought the liberation of the disenfranchised people of South Africa. That's what liberation movement meant. Not one yearning to set aside the Treaty of Vereeniging. Therefore, this small band of soldiers, as they would like to call themselves, does not fit into the expression "liberation movement".

And let us come to the act. Again bona fide, in good faith, good faith has an element of both subjective and objective nature. Firstly, the objective facts have to be established on the balance of probabilities. Only if those facts are objectively established, it is then to enquire into, on those facts objectively established, did the applicant subjectively believe that this was to be done and as authority for that - I'm sorry that I haven't got a reference in my head, but I do remember the case of S versus Cele - I don't know if I pronounce it correctly, C-E-L-E, in the '80s, it's a judgement of his Lordship Mr Justice ...(indistinct) and there are a number of other cases, sorry, that I did not bring them with me, a number of other cases given in the Claassens dictionary under the word bona fide and what it means and there are cases to that effect, that the facts upon which the bona fide belief, allegedly subjectively held, have got to be objectively established. Now I have already submitted that the facts which relating to giving of an order have not been objectively established because objectively established means that they had to be established on a balance of probabilities.

CHAIRPERSON: We won't be giving a decision this morning, Mr Bizos. You can let us have the cases that you are referring to.

MR BIZOS: ...(inaudible) and if we turn further to sub-section 2(d). Again:

"Any employee or member of a publicly known political organisation or liberation movement"

It's the same. Then have a look further down:

"Engaged in a struggle against that political organisation or liberation movement or against members of the Security Forces of the State or any members or supporters of such publicly known political organisation and which committed bona fide in furtherance of the struggle"

So that what has to be established is that the report has got to be against another political organisation or liberation movement. Now by no stretch of the imagination can the people driving home in a bus come anywhere near being members because what the Act intended to be is, if I'm a member of the IFP and I believe that my brother was killed by the ANC, I went out and killed a member or members of the ANC, this was my political motivation, I was reacting to the wrong done to me. What wrong had been done to the Boere Orde by the people on the bus? Of course it may be argued that if we kill enough innocent people it may be that our political opponents, like Mr de Klerk, would take notice and come to terms with us. That is theoretically possible but on the evidence of Mr Rudolph that is not a possibility which is available to Mr Botha because Mr Rudolph said unequivocally that the act, not only did not serve the interests of his organisation, but it also was counter-productive to it and I think having regard to the fate of that organisation, he is probably correct, that this is the sort of act which really put an end to the Orde Boerevolk.

And sub-section (f) of Section 2:

"Any person referred to in (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."

The word "reasonable" in the sub-section imparts an objective test and we would repeat the argument that Mr Botha could not take the ipse dixit, the say so of these unmasked, unknown men that so horrific an act was, as to kill innocent people, was part of - that you could reasonably believe - that it was part of his duties within his scope of his or her expressed or implied authority. How can any such reasonable belief in respect of which no questions were asked according to the evidence by the applicant be reconciled with the evidence of Mr Rudolph?

Then we turn to sub-section 3, Chairperson. What you have to take into consideration is the motive of the person who committed the act or offence. The best evidence that we have is the evidence of the applicant himself contained in Exhibit 3. "Teen wraak" - revenge. Now acts of revenge, read with the other requirements, cannot be given creditworthiness by this Committee for the purpose of obtaining amnesty, particularly in relation to this case. I can understand that the revenge that the brother of a deceased would want to take on the actual or supposed killer of his brother, but what is the relationship of the people on the bus going back from work to the people who actually did the killing? And the question of motive is not to be examined alone, it is to be examined in relation to the proportionality test in respect of which I want to make certain submissions.

If we have a look at sub-paragraph 23(f), the relationship between the act, omission and offence and the political objective pursued and in particular, the directness and proximity of their relationship and the proportionality of the act, omission or offense to the objective pursued. Let us assume, for the purposes of argument, that the evidence of the applicant is accepted, that he wanted to wreak revenge against people in the bus against what the people on the beach front did. The question that will arise, what is the directness and proximity of the relationship. As I've already indicated, the killing of my brother may be both direct and proximate between my deciding to kill the would be killer or even his brother. There can be no direct or directness or proximity in relation to this particular act. If indeed and it would have to be bona fide and I will submit that objectively the facts do not show that this was bona fide, that killing innocent people might help the cause of the Order Boerevolk. That is so far removed from the act in respect of which revenge would be taken that it is taken outside the ambit of that requirement and although I do not, to be understood, that there was any personal malice or ill will or spite directed against the victims of their acts committed, I would submit that because of the chasm between the act committed by the people on the beach front and the act committed by the applicant, they would not be untoward to make a finding that the reason why eight Black people were killed and eighteen were injured in the eyes of this applicant was because they were Black. I would submit that the evidence clearly establishes that although their enemy number one was the National Party headed by Mr de Klerk and one needs no more evidence that the contents of the oath, that this applicant would never raise a gun against innocent White people irrespective of any treachery in his mind that was committed by Mr de Klerk. That is a fact of life, Chairperson, and if he had taken the stand again I would submit that he would have found it very difficult to say that he would have done the same if the would be victims of his decision were White. So that although I do not ask the Committee to make a finding on which it alone to refuse amnesty, taking to use - I don't know what he meant by holistic, I think he meant on some or other principle, but if we use holistic in its true sense of taking all the factors into consideration, I submit that this application for amnesty will not succeed.

The other factor that one may take into consideration is the provision in 3(d). The factor to be taken is the object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent. It was not directed at a political opponent or State, it was not directed against a State, or property, not against property, or personal or against private property or individuals. Individuals that were not part of the struggle were entitled to some greater protection from the guns of those who would raise them in furtherance of what they believed to be a political struggle.

Now the mistake that the attorney for the applicant makes, with respect, is a fundamental one. Not everyone who raises a gun and kills people or commits other crime or delict is entitled to amnesty merely because of, to use his words, politics. The requirement is that the act has to be committed with a political objective. The political objective was what? To restore the Boer Republics, we are told. How? How would the killing of eight people and the injury of seventeen or eighteen others restore the glory and independence of the old Transvaal and the old Orange Free State? The applicant hasn't told us. He may have had what he considers to be a political motive but it was not done for the purposes of achieving a political objective.

I want to turn to the judgement of his Lordship Mr Justice Smith, Chairperson. I do not want to submit that this Committee should sit as a full bench on his Lordship's judgement suffice to say that he speaks of two misdirections on page 313 of the judgement. Obviously this Committee having received the matter from him and even though it was given without notice and without having the benefit of argument from the other side, it must be taken note of by the Committee. First of all, in relation to the first misdirection, on the top of the page:

"Firstly the Committee upon the decision on the point of dispute omitted to appropriately consider the evidence of the applicant that he acted on behalf of the Orde Boerevolk."

I would suggest, with respect, that you will reconsider that. You will reconsider the evidence but you are now armed with more evidence as to what were the objectives of the organisation, on what the aims and objects were from Mr Rudolph and with that evidence you will be properly directed to say that the evidence of Mr Rudolph negatives absolutely and directly. There are three questions or four questions that he was asked in relation to the interests of his organisation and how they were served by this and in this each one of those answers he gave an answer adverse to the applicant's case. That disposes of that particular alleged misdirection.

You can also take into consideration, with respect, that the applicant having heard his leader contradicting him what were the interests of his organisation would have gone into the - would have again taken the oath and explained why he believed that this would be in the interests of his organisation, not only in relation to what was said by Mr Rudolph, but in addition what common sense and the probabilities direct that this action far from being in the interests of the organisation were in destruction of the reputation such as it was of the organisation. And again, Chairperson, you will not be persuaded that it is for an individual member of an organisation to decide what was in the interests of the organisation. May I say and I'm sorry to impart the knowledge that I have from one case to another, when that was suggested in the Hani review application, his Lordship Mr Justice Connery said that "I will find it appalling if that were the meaning of the Act" and I would repeat, with respect, that suggestion.

So let us turn to the second so-called misdirection. It is said, this is about six lines down:

"The Committee lost sight of the fact that the stipulations embodied in Section 23(e) only established criteria in order to determine whether a deed is a deed which has been held in relation to a political objective. Instead of applying the criteria or measures, the Committee elevated the criteria to the status of a prerequisite."

That is, with respect, a misdirection on the part of his Lordship because if you turn to page 295 of the record which is the Committee's - to page 295, the last part of paragraph 1:

"These are criteria which serve as aids in order to determine whether a particular deed which has been committed is a deed which is associated with a political objective as in the subject to the incident referred to above."

I don't know what was referred to the learned judge in order to come to the conclusion that you, the Committee, had misdirected itself, Chairperson.

Those are the submissions that we are making, Chairperson and Members.

CHAIRPERSON: Thank you. I see Mr Prior shaking his head?

MR PRIOR: Chairperson yes, from the point of view of the evidence leader there is no submissions further other than that which is already on record. Thank you.

CHAIRPERSON: Anything further?

MR MOSTERT IN REPLY: Thank you Chairperson, I will be very brief in my response. I would like to begin with a very tender point which Mr Bizos has touched upon and that is the attack and the death of innocent people. Botha testified what he saw as a situation of warfare and his perspective of civilians. But from within his perspective, whether we agree with it or not, from within his perspective it was so that a citizen of a State or as member of a State, would be a part of that State and therefore a legitimate target.

To provide a quick response to the ten to one issue, to me it is an observation and it is logical that the retaliation or as it is stated in the Act, an act in reaction to was about the balance of power.

Regarding the question of credibility, I wish to submit to you that when such a finding is made, at the very least the converse should have been put to the witness within the framework of cross-examination. In other words, the basis upon which such a statement is made and whether or not that foundation is solid. Piet Botha's evidence is undisputed. Regarding the question of retrospect, if we are to evaluate any situation regardless the nature of the situation, it is a definite fact that anything would usually have been done otherwise and it is the case that the earth in this regard was not a duty sheet, it was simply a document which would bind this man to certain principles, objectives and authority to which he was then bound. I would still submit to you that a full disclosure has been made and that the issue pertaining to the Police to which has been referred would not be relevant in this matter and it would in either event constituted hearsay.

Regarding the directness or proximity it is necessary simply to indicate, as I have already done in essence, that it is something which took place from the morning to the night and one was the direct cause of the other.

Then the final point that I wish to discuss would be some practical problems in the sense that in terms of this precise set of facts, the same circumstances have already constituted the basis for this Committee granting amnesty to two other persons. That would Smits and Marais who in either event, with respect, negate all the arguments against the granting of amnesty. I will stand by that. As it pleases you.

CHAIRPERSON: If nobody else has anything further to say we will now take time to consider our decision. I would thank all of you who sat here to patiently through this hearing. I hope you have learnt something more of what happened on that day. Thank you and thank counsel for appearing.