DATE: 29-05-1998

CHAIRPERSON: Good morning everybody. You will recall that when we adjourned this hearing, it was for purposes of heads of argument to be submitted, written heads which has been done and I would like to thank the legal representatives for their heads, and also for oral argument to be presented in support of the heads of argument. That is what we will be doing today, and I will then ask Mr Prinsloo, Adv Prinsloo who is appearing for the first applicant to proceed with his argument.

ADV PRINSLOO: Thank you Mr Chairman, members of the Committee. You are in possession of my heads of argument I understand. Mr Chairman, I would not like to repeat them of course because I would just like to confirm with you that you have had the opportunity of perusing the heads.

From the heads of argument I would just like to raise a few other issues. Firstly I want to make the point that as far as the heads of argument of my learned friend, on behalf of the second applicant are concerned, I am in agreement with those heads insofar as they do not contradict mine. Of course my learned friend has a slightly different angle in his approach in that he makes the point in his heads of argument, that it could have been a correct impression that there was an actual order or instruction, or it could have been taken as a call up made by Mr De Bruyn.

In my heads, I argue more on the basis that even in the absence of that, one can argue that as supporters at least of the AWB and CP specifically in the case of the first applicant, and even in the absence of a specific call up, or order or a construed one, or an assumed call up, or order, that my client still complies with the requirements of the Act for amnesty.

As far as the rest of the heads are concerned, I am in full agreement, because generally they are in line with the argument that I will also put forward.

As far as the heads of argument of my learned friend, Mr Botha is concerned, a few remarks if I may. Firstly if I may refer to page 2 of the heads where Mr Botha deals with the requirements of Section 20(2), if I understand his heads correctly and I think I do, Mr Botha intimates that to qualify for amnesty, the applicants had to be members which is of course, I submit, incorrect. They could have been simply supporters. It is a point that I also stress in my heads of argument that it is not necessary for amnesty, to be a member of a political organisation or a liberation movement, etc to qualify. That is in 4.1.1 of his heads.

Then on page, the next page,, paragraph Mr Chairman, Mr Botha advances the argument that because it cannot be said that the AWB gave instructions to shoot at two innocent young men, in the fourth line of that paragraph, therefore there is not compliance with Section 20(2)(a).

I submit that that is not necessary. An explicit instruction is not necessary in terms of the Act. My client's application is on the basis not of an explicit instruction, as is clear from the second half of paragraph 11 of his application of course, to which I will advance later, that is one of the points that I want to argue further if you permit me to.

Then on page 4 of his heads, paragraph, Mr Botha makes the conclusion, it reads as follows, therefore as more fully appears from the discussion under paragraph 5 hereunder, it is my respectful submission that the applicants were never members or supporters of the AWB. With respect on two grounds, I think Mr Botha is wrong.

Firstly, if one looks at the preceding parts of his argument in this regard, it is illogical to conclude on the argument advanced in the preceding parts of his heads, to make that conclusion, because it doesn't deal with that issue with respect, I submit.

On the other hand, there is a second hand that I say that it is wrong, it is a wrong conclusion, and that is that from the evidence, it is quite clear and I've dealt with that in my heads of argument, if I may just refer to a few aspects thereof.

If one looked at the independent evidence of De Ru during the bail application, that is one of the Investigating Officers, if one looked at the evidence of Kok who said that they, Kok explicitly testified that he was satisfied that this was a crime committed with a political objective or words to that effect. De Ru gave evidence of the visit the evening, immediately preceding the shooting by the applicants, to Mr De Bruyn, who was from all the evidence and including that of Mr De Bruyn, connected to the AWB although in another capacity as that thought or assumed by the applicants. They thought he was an officer, a high ranking officer in the AWB, eventually he turned out only to be a member of the AWB.

It is clear from that independent evidence as well as the evidence on behalf of the applicants, including that of Mr De Bruyn I submit, that there can be no misunderstanding, that they were supporters of the AWB.

Even if one discharged the claim that they viewed themselves as members and that they could be regarded as members on the evidence, even if one disregarded that, then I submit to you that it is clear, at least they were supporters.

CHAIRPERSON: This is clear from the evidence, from their evidence that they attended various meetings of the AWB. The Committee would have to go very far to disregard that and say it is an untruth and the mere fact that they attended meetings, which I think we are obliged to find that they did.

ADV PRINSLOO: I agree with that yes.

CHAIRPERSON: It is an indication that besides the other factors that you have mentioned, that they must have at least have been supporters.

ADV PRINSLOO: I agree wholeheartedly.

CHAIRPERSON: Mr Botha's raised an argument about the evidence relating to their membership and he has submitted that the evidence in that regard is not strong.


CHAIRPERSON: Taking into account the best evidence rule, etc, etc.

ADV PRINSLOO: Yes, I agree. I read it that way Mr Chairman. Then another argument advanced on by Mr Botha is lower down in the same paragraph, the applicants - it reads it is the second last paragraph on that page, page 4, and it is the last portion of the paragraph, reading the applicants failed to present evidence from the side of the AWB that the crime formed part of the AWB struggle and therefore they will not qualify.

Mr Chairman, with respect I submit, members of the Committee, I respectfully submit to you that it is not necessary for the applicants to call the AWB. Just looking at the whole situation from a point of logic and common sense, it is almost unthinkable that the AWB will be called into the witness box here and incriminate itself, saying that we admit that this was, this specific incident formed part of the AWB struggle.

I submit to you that the evidence advanced by Mr De Bruyn especially and the evidence of the two applicants, coupled with what we all know, and I submit you can and should take cognisance of what we all know, about the resistance of the AWB to the new political dispensation, and the fact that so many AWB members have been convicted of bomb blasts and attacks, terrorism to do away with the change in the country.

If we disregarded that, I submit to you it will be completely illogical and unjust. I submit to you that the evidence advanced in this Committee is quite sufficient to confirm what we basically all know.

Just one point in this regard, there was reference to an armed wing of the AWB as opposed to the rest of the AWB. That with respect, is also an aspect that troubled me right from the start when it came up. The AWB stands for the Afrikaner Weerstands Beweging, the name means Afrikaner Resistance Movement.

It is unthinkable that you can have a resistance movement without resisting something. If you advanced, if anybody advanced the argument at all that resistance is limited to a so-called armed wing of this organisation, I think that will be totally illogical and it doesn't conform with reality.

That is a resistance movement, its purpose why it was founded, was to resist and all its members are committed to resistance against everything that is against the interest of Afrikaners.

CHAIRPERSON: Why then would these Units, the Ystergarde and Orde van die Dood en Aquilla, on your argument, if everyone was a member of the resistance movement?

ADV PRINSLOO: Those Units were and are specialised Units of the movement for specific tasks. Like you have in the Police Force different Units, you have in the old days, you had a specific Security Branch, you had people dealing with disinformation, you had people dealing with internal unrest, different sections of the same Force with one overriding purpose and that is to maintain law and order.

In the sense of the AWB, the overriding general aim of the organisation clearly is resistance by the whole movement against anything that is against the interests of the Afrikaner people. In that sense it is quite illogical to argue that whenever there is a struggle of the, to the extent that we had prior to the 1994 elections from the view of the AWB, that the AWB would tell the rest of its members which from just looking at what we saw on television and in the papers and perhaps some of us knew from first hand experience, the general membership were far, far larger than the Aquilla members and the Ystergarde members who were specially trained people.

They were equally committed to resistance in terms of the mission of the movement itself. Resistance to anything which is against the interests of the Afrikaner people. My learned friend just shows me a note here which I think is a very good example, from the other side of the political spectrum, if you take the Azanian People's Organisation, which had a wing APLA, and you had the ANC with Umkonto weSizwe, it doesn't mean that the rest of the members were not involved and were not committed to resistance and even armed resistance to the old regime, and the same argument applies to the AWB and other organisations like that.

ADV GCABASHE: Thank you. You are not suggesting that every single member of the AWB was an active resistor if one can put it that way, I am thinking of those who passively resisted in terms of ideas, the intellectuals, all the other people who were part of that movement, but who did not go out and commit an active act or go out and do something military of a military nature.

You accept that there were those people who resisted, but passively or from home?

ADV PRINSLOO: My submission to you is this that it is clear from what we know by own experience, what we saw and what we read, that there were several general call ups to all members of the AWB by the leader of the AWB on different occasions to resist and take part.

I remember recalling personally having seen a television broadcast prior to the election, if I remember correctly it was in the Eastern Cape coincidentally, where Mr Terreblanche was photographed on television with pistol in his hands, where he actually indicated that he would call on the AWB, not on the Ystergarde and Aquilla, to acquire weapons even if they had to steal it.

What for, if there was only a portion of the AWB that were supposed to resist with weapons or with violent means. I submit to you that those call ups were general call ups to the membership, the broad membership.

ADV BOSMAN: I don't want to disturb your train of thought, you - I was just wondering are you not perhaps giving too narrow an interpretation to what is stated there?

It says the applicants failed to present evidence from the side of the AWB that the crime formed part of the AWB struggle. I don't think Mr Botha's intention was, we will hear him on that, is to say that the AWB was not one of the struggle movements.

I think what he was saying there, he said this particular crime which appeared to be a random shooting of two individuals, were not part of the AWB struggle. I think one needs to draw that distinction perhaps.

ADV PRINSLOO: With respect, I understand it exactly the way that Adv Bosman is putting it now. The point that I am trying to make is, it is unthinkable that the AWB would come to this Committee and say that we specifically ordered or that we called upon people to do this, to perform this specific crime. I can't see that happening.

ADV BOSMAN: But should you not distinguish specific crime? I am not saying these two people, but was there any evidence submitted that the AWB's policy was that members or supporters should shoot individuals randomly, this is my question?

ADV PRINSLOO: This is why you know, I think one needs a certain measure of political understanding in this case, and I would like to try my best to put forward what I think in this regard.

From the evidence of the applicants and Mr De Bruyn, it is clear what the modus operandi of the AWB was, I submit to you. The AWB called on people not to take part in the elections, the leader of the AWB said that the same night that the ANC takes the country over, the AWB will take it back with violence.

During the course of the meetings that my client and the other applicant and Mr De Bruyn, among others attended, the evidence was that there were a lot of talk about preparing for war. They had to gather food, they had to gather the means to sustain themselves in a war situation. They had to get themselves weapons.

That was the background. The AWB made all these preparations and called on their people to prepare for a war, which would culminate in action the day the ANC would be taking over the country. Then with violence the AWB should take back the country.

No specific order was given, do this or that or the other, which in a revolutionary situation, I submit to you, is quite understandable. Because had those been said from stages, the leadership would have been arrested immediately.

So what happened here, I submit to you was the modus operandi to prevent the leadership being arrested, but at the same time, making it absolutely clear to its followers that you should resist the take over with violence, and it was left open ended to what the membership should do. I submit to you that that is the reason why we had the situation why some people planted bombs, other people tortured people and even cut off ears, other members shot other people, it was actually a revolutionary climate that was created without specific instructions for specific actions.

In this regard, with respect from what I gather from the media, was to the largest extent exactly the same as how MK and APLA operated. Where they left it to small pockets of people to decide on specific actions, but not telling it from the Highest Command, you should do exactly that and exactly that at a specific time.

It seems to me more or less the same modus operandi, which is I submit to you, very understandable in a revolutionary situation.

ADV GCABASHE: Thanks. Could I just ask you on that point, can you then try to explain how the AWB would then have coordinated effort, how it then would have had a structured approach if I, as an individual, could at any time decide this is D-day. How do you in the whole country, coordinate the efforts of your resistance movement? You know in light of the explanation that you have just given?

ADV PRINSLOO: I don't read any effort to coordinate, just as little as I read an effort to coordinate everything precisely in the struggle of MK and APLA. It was not operated like an army, it was operated like revolutionary warfare, guerilla warfare, where the general idea was forwarded to the minds of the membership, they knew exactly that this was the general way that the resistance would take place, and it was then left to the initiative of individuals to give content to the exact method that they would use to resist violent methods.

That is basically what I am trying to bring across.

CHAIRPERSON: That then raises other argument that Mr Botha raised. Accepting that, then why were there so few acts of violence on that particular day? Okay, we have heard about a bomb in the morning, and we have heard about this incident, why weren't there thousands or hundreds of similar acts of violence on that day?

ADV PRINSLOO: If one looked at the evidence of Mr De Bruyn, I think you will find with respect, an almost complete answer in that, as opposed to the evidence of the two applicants.

Here you have three people, the two applicants and Mr De Bruyn, both military trained, both did military service, both were, all three were supporters of the AWB and the Conservative Party, both heard the same preparations and the same call up, yet, there was a difference in response.

The one man said, I was waiting for a specific order and because the specific order didn't come, I didn't want to commit myself. So he approached his own personal, he adopted his own personal approach to how he should take part in the violent struggle, whereas the two other applicants, the two applicants rather, decided that they would take the initiative within the general call up, to arms and they would go the other way, by specifically initiating a specific violent method.

What is interesting further in this respect, is that they went to De Bruyn, on their way to the crime, they went to De Bruyn to pick him up, to take him with them, and De Bruyn was not there. What I am trying to indicate to you as far as I can construe from the evidence, it was because of a difference of approach to a personal approach, as to how they should take part.

That is why, and the answer if one then logically makes a logical conclusion on the basis of that, the reason why not more incidents occurred, and not more people took part, was because the majority had the personal approach of Mr De Bruyn, where they would rather wait and not take the risk of initiating something by themselves, but rather wait for a specific order.

Not to say that there wasn't a general call up which was enforced for both the types of approach. The other people like the applicants and others, the people who planted the bombs. The other personal approach was that the way we can contribute was to take our own initiative.

ADV BOSMAN: Taking into account the extent of the membership of the AWB, the fact that a minimum of individuals acted in the manner that your client and his co-applicant did, does it not in a way militate against the credibility of your client's explanation?

ADV PRINSLOO: I just want to point out if I may, you know we are talking about a few incidents right when the election occurred, immediately prior to the election and on election day. What has to be borne in mind is that prior to that, I remember that the AWB listed at a stage after the election, 120 incidents of crimes committed like bomb explosions, petrol bombs, ordinary explosives, shooting incidents, wide variety of incidents, 120 listed if I remember that clearly and it was publicised as well, in the run up to the election.

I think one has to have regard to that as well. One shouldn't just look at what happened on election day itself, I think one has to have regard to the broader picture.

My learned friend just passes me a, I thank him for that, a list used in the application of Messrs Derby-Lewis and Walus in which mention was specifically made of the incidents listed by the AWB. I have, he has forwarded me a copy hereof. If I may just read a few and then perhaps I can ask him whether we can make copies and distribute it to members so that we can remind ourselves.

ADV GCABASHE: I would be interested to know how many of those are the killings of individuals rather than the bombings and that type of thing. Just the killing of individuals, you know facts that are similar to the facts before us now.

ADV PRINSLOO: Yes, not a lot of them are actual killings. I just look at one of them here, 13 December 1994, four black civilians killed in a fake roadblock set up by rightwingers. Let me just go down the list. A lot of bomb explosions, rows and rows of bomb explosions in offices, at houses.

24 April 1994, the car bomb in central Johannesburg of course, ten people killed. And then the AWB states, I suppose this is the list that came from them, I saw a list coming from them which was publicised, that explosion, it says here this blast triggers of a whole series of smaller incidents, eventually totalling some 13 bombs around the country, including at least two in the Northern Cape.

Bomb explodes at the taxi rank at Randfontein on the 25th of April, no injuries, but it was at a taxi rank. 25th of April again, a bomb explodes at a taxi rank in Germiston, nine people killed. 25th of April, a bomb explodes at a restaurant in Pretoria, killing two people. 28 April, car bomb explodes at Jan Smuts airport causing damage but no fatalities. It could very well have been.

So it is not just the two incidents or so, it was a reasonably intensive, aggressive struggle, violent struggle that perhaps one is not always aware of if one thought back. I think some of these things were not so widely publicised at the time and another thing is, one forgets of course.

Another thing my learned friend reminds me of and that is that there was a plan first to use explosives, and then it was difficult to get hold of the explosives, so it was changed to a plan to actually shoot people. I think that has to be borne in mind.

Then, further more on page 4, the bottom of page 4, Mr Botha advances the argument that there was no evidence, the applicants failed to prove that they acted on reasonable grounds within the scope of their authority.

Again I think what he refers to is the absence of a specific, direct order for that specific offence which I have already dealt with with respect.

Then on the bottom of page 5, I would like to refer to the admission, which I think is a very important admission from the side of the family, who apparently now full out opposes the applications as opposed to the initial stance. This is a very important admission at the bottom of page 5, the second line from the bottom.

Millions of people heard and saw that on TV, what is referred to, that Mr Terreblanche stated that when the ANC/SACP alliance take over the government, the AWB will regain power with violence on that very same night. Now, I submit to the Committee that that is common cause, it was a public utterance and it is very important that the Papiyana family, through their lawyer makes this admission, that millions of people actually heard and saw this on TV, and I submit with respect, that whatever is the decision in this specific application, will also be judged by the general public against that background.

We all saw that, the applicants before you say that they acted on that and their crime was a direct result of call ups like that. If the conclusion of this Committee would be that there was no political motive, I think it will be hard to explain to the millions of viewers how that can logically be concluded.

ADV BOSMAN: You have just made a statement that if the Committee should find that there is no political motive, should you not perhaps distinguish between motive and objective, because what the Act requires is a political objective and are these two terms not really in essence, two different terms?

ADV PRINSLOO: Yes, in the sense that I wanted it understood, I meant objective, that is the way that the Act is framed, but I submit to you that that is basically the same and I tried to convey the same meaning to you. I didn't want to distinguish that what I am trying to put across is that the whole country who looked at the television at that specific night when Mr Terreblanche was on, saw his call up, saw his promises as it were, that the same night that the country would be taken over by the alliance, it would be taken back violently by the AWB. That was a call up, that was a promise from his organisation, including all its membership.

Where these applicants before you committed the specific crime on election day, with all the surrounding circumstances where they went to Mr De Bruyn two times, he was their mentor, if you will within AWB ranks, he was their leadership figure where they prepared for the struggle by collecting weapons and collecting food etc, where they resisted the election through not taking part in the election and where they openly say that their crime was because of this call up by the AWB, this whole plan to resist violently.

I think it would be hard to persuade the general public that it could be concluded that their actions weren't motivated by politics, a political struggle and they didn't have a political objective with the murder. That is what I am trying to put across.

ADV BOSMAN: ... have been a more multiple motive, for instance there was some talk of alcohol abuse. Couldn't the motive have been a multiple one and when even though there was a political motive or part of the motive was politically motivated as you said, is it not possible that the objective was not an objective as defined in the Act? It would seem to me as though in the heads in general, Counsel and Mr Botha had been using motive and objective as synonyms and do you see them as synonyms and if not, could you argue what the motive or motives was and whether it should necessarily be the same as the objective?

ADV PRINSLOO: Well, I will stick to the wording of the Act to be quite clear, because what I tried to convey is of course that they meet the requirements of the Act.

I think the objective as they stated their objective was quite clearly stated, that they wanted to scupper the elections and they wanted to prevent a take over and in the case of the first applicant, if it wasn't successful, at least then through terrorism committed, the new regime would take cognisance of the degree of resistance from the conservative portion of the community and they would make concessions to the white people.

I think that was clearly stated, but I am not sure still whether I come across clearly on the question of what the impression is in the general community. The point that I am trying to make in that regard is the general public I submit to you, simply ask, have the impression that the Truth and Reconciliation Commission and especially the Amnesty Committee, deals with crimes and other acts which contravened or infringed on human rights, fundamental rights and amnesty can only be granted if among other things, but that is the most important thing, the object for the behaviour or the actions of the applicants, were for a political object or politically motivated if one would put it that way.

I submit to you that that is the impression and I submit that that is surely in terms of the Act also, the function of this Committee. What I am trying to put across is against the general background that the whole public who view television has of Mr Terreblanche making inter alia that specific call up, how can one explain if one looked at all the evidence of these applicants and their witness, how can one explain a decision then to say no, there is no link between that whole promise that Mr Terreblanche made and the actions of these applicants?

CHAIRPERSON: That is what Adv Bosman was getting to. Let's just move away from the word motive and causal factors, let's say. Had there not been a braai that day, had there not been that consumption of alcohol, had there not been that political discussion around the braai, would this incident have occurred?

In other words, the liquor, the very fact that it was election day, taking into account the attitude of the applicants towards the election, the discussion, are you saying it was only the political objective that spurred them into action?

ADV PRINSLOO: Yes, with respect Mr Chairman.

CHAIRPERSON: Or were there other causal factors there?

ADV PRINSLOO: With respect Mr Chairman, I submit to you that it is clear that it was the political objective that spurred the applicants on.

There is one irrefutable piece of evidence which I say it is irrefutable because it is common cause, because of evidence advanced on behalf of the State and on behalf of the applicants, which places that on record, which puts this beyond any doubt.

This is the fact that on two occasions on the very day in question, the applicants went to Mr De Bruyn as it were, to first of all get more information as to what was already going on, and to then glean whether this is the right time for them to take part, to contribute from their side, to the struggle.

The first occasion they were absolutely sober, early in the day. You will remember that was just after they had gone shopping, so this was before they had started the party. They went to De Bruyn for this purpose. Clearly then in their status of sobriety, they were already planning something and they were already contemplating contributing to the struggle and the resistance.

And then the second occasion was after they had become drunk or intoxicated at least if there is such a distinction to be drawn, but after they had consumed this lot of alcohol, then they went back to him. So in both states of sobriety or insobriety, there was clearly action from their side which indicated that the underlying motivating factor and the underlying objective was a political one, because otherwise they wouldn't have gone back to De Bruyn, what would they have done otherwise at De Bruyn's place. De Bruyn had only one point of significance for these two applicants, and that was a political one.

CHAIRPERSON: And then they also got some parts for a car or something, or tools or whatever, is that in the morning?

ADV PRINSLOO: Yes, that was in the morning. That had a dual purpose, they went there, the bombs had gone off. Evidence was to the effect that the bombs had gone off, they wanted the information and in the same, at the same occasion, they wanted to ask about spare parts.

In the evening of course, that was not the case. I submit to you that that piece of evidence puts it beyond any doubt, that the political objective was overriding, but I want to advance another argument to you with respect. Even if you should find that you personally believe that both drink and politics motivated the action, I submit to you with respect that that is sufficient for compliance with the requirements for amnesty because nowhere does the Act specify that if you had a political objective with a specific act, but it would also serve another purpose, or it would, rather it would not serve another purpose, but it would satisfy another need or whatever, or it would be the result of drunkenness in this instance, that that exclude these applicants from amnesty.

I submit to you that the one, unless you can conclude that the political objective was totally excluded by the other objective, or the other motivation or the other reason of this act, then there is still compliance, sufficient compliance to grant amnesty.

ADV GCABASHE: Thank you. I still have a problem with the distinction between political objective and motivation in the light of what you have said, I can very seriously consider your argument on political motive, the motive was there.

But the objective, just to use your own words was to scupper the elections, and maybe I am preempting you, maybe you are going to come back and deal in more depth with the act itself, how that particular act fulfilled the political objective of either the AWB or the CP. If I am preempting you, maybe you can leave it till you are ready to deal with it, but on the basis of what you said, political motive yes. It could be, it could be a racist, it could be political, the motive is one thing, that is what moves you to do something, but the objective that you are achieving, tied in with the act that you are committing, you've got to be able to have annexes between that. Maybe you want to deal with it now, maybe later, it is your decision.

ADV PRINSLOO: If I may proceed to answer that question directly, I would prefer that. If one looked at Section 20(3) of the Act, it states clear there that whether a particular act, omission or offence contemplated in subsection 2 is an act associated with the political objective, shall be decided with reference to the following criteria.

The first, very first criteria (a) the motive of the person who committed the act, omission or offence. Clearly that is a criteria to judge whether the act was associated with a political objective.

If one looked at what was ultimately aimed at, I have already indicated that with respect, that also appears from the papers. If one asks, I don't know, perhaps that is what the Honourable Member wants me to elaborate on, is whether it was reasonable that this act could form part of the ultimate objective stated in the papers, namely scuppering the election.

I have dealt with that at a certain point in my heads, but I would like to repeat to some extent, and if necessary to elaborate. If the whole AWB and the Conservative Party who declared openly their resistance to the elections, if I may limit it and go so far as to say, that even if just the membership of the AWB had done the sort of thing that these two applicants had done, then I would submit categorically that the election would not have been completed.

I submit that on the basis of common sense. If some thousands of people started shooting black people, or started bomb explosions, initiated bomb explosions from the ranks of the AWB, there is no way that the election could have been completed. It is quite ironic with respect in this application, that I submit to you that the applicants acted reasonably. From what they have told you, what we have heard from their evidence, they were actually led to believe that they were doing their part as they put it over and over in their evidence, of a bigger picture. They were contributing their little part of a huge resistance, by the thousands of members of the AWB and then, in the end they discovered they were almost alone, only some small other groups contributed in this way if one wants to call it that.

They were actually led to believe this and they acted reasonably on a reasonable assumption, and then they discovered that they were left in the lurch as it were. Again, and I don't want to repeat myself, just to conclude this argument, if that had happened, if the whole AWB had done what these people had done, the elections would have failed and the political objective stated in the application papers, would surely have been achieved.

The argument is advanced on page 6 of Mr Botha's heads, the third paragraph on that page. The middle of the paragraph, one would have expected from people with a military background and of the applicants as well as the fact that they were members of a para-military organisation like the AWB, to plan their activities with precision. It is clear from the evidence that this attack was not planned, and there were no authorization from their Commander which later appeared to be only a member of the AWB.

I don't want to repeat in this regard. I just want to also make it quite clear that there is a difference to be drawn between a revolutionary situation and ordinary armies operating and I submit to you that the answer to that lies in that.

On page 8 if I may refer the Committee to page 8, 4.2.5, I think we have dealt in argument already this morning to some extent to that argument advanced by Mr Botha there. The question whether this act was on behalf of the AWB or with the approval of the AWB.

As far as my client is concerned, the first applicant, I just reiterate that we don't rely on the basis that there was specific approval for the specific action, although there was an overriding call up to violent resistance and the prevention of the new dispensation being attained.

I submit to you that on that approach, as far as my client is concerned, objective seen that that was an act on behalf of the AWB.

There is also another factor which I think works in favour of the applicant, a concession made by Mr Botha in his heads at page 9 of his heads, the last paragraph on that page, where reference is made to the fact that the first applicant resigned from the mine, Western Deeplevels Gold Mine because of the fact that one of his fellow workers, a black person, died.

The implication that Mr Botha wants to draw from that is slightly different from what I want to, but the fact, I am glad that he mentioned the fact in his heads. I want to argue that the fact that it was a black person that died, and because of that, it was sufficient to move the first applicant to resign from the mine, clearly indicates that there was no distinction in his mind on the basis of race and the loss of life of a white man or a black man.

It was equally distressing. The fact that it was a black person in this instance, clearly demonstrates that you don't have a racist before you. It was equally distressing, it was sufficient for him to still resign from the mine.

The next sentence there, where Mr Botha says this is not the behaviour one would expect from a member or a supporter of the AWB, I don't understand with respect, but maybe he will clarify it later, unless the implication would be that the AWB membership only consisted of racists.

Mr Chairman, members of the Committee there is one aspect I finally want to deal with, that I can't immediately find it in the heads of Mr Botha, but I know that he, on reading it, I know he made mention of that. Oh yes, page 5.2 of his heads.

It is the question of the amendment sought by the first applicant during the course of the proceedings before you. That amendment was sought immediately after his cross-examination before the matter had proceeded further.

The amendment was sought in respect of paragraph 11(a) of his application which appears on paginated page 5 of the bundle of documents containing the two applications of the applicants.

Now, the question is what is the significance of that and what is the implication of that specific amendment. Mr Botha has sought to argue that the implication is that the first applicant is proved to be not a credible witness in that respect.

I submit not, I think it is a wrong conclusion. I would like to submit argument on that briefly. It is clear from the original wording of the application, paragraph 11(a), the response to the question there whether and I read from the Afrikaans application as, that is the original application and the language used there, it read as follows were these actions done in the instruction or with the approval of the organisation of the AWB?

The answer to that originally in the application, which was according to the evidence of the first applicant, drawn in consultation or with the assistance of the first applicant's legal representatives, the answer was no.

At the hearing of this application, I sought an amendment to change it to yes, the crime was committed on behalf of the AWB and the CP. I submit to you that the truth is two factors emerged here.

The first one is what went on in the mind of the applicant when the application form was completed and secondly what went on in the mind of the legal representatives when the application forms were completed.

It is clear I submit to you from the preceding paragraph, paragraph 10, specially the last part thereof, against what background the act was committed, but the important part of that was, I read to you, I quote "by that I wanted to further the political struggle of the AWB and CP".

Now if you look at that and you look at the original answer in paragraph 11(a), I submit to you it is completely contradictory, completely contradictory. The question must then be asked what went on in the minds of the applicant and the legal representatives to put something as contradictory as that into the papers?

The applicant gave you an explanation which you may view as a explanation that doesn't carry so much weight, or it is rather confused, you may conclude that. What I submit to you what is clear from the explanation of the applicant is that he was completely confused. That he didn't read or at least, he didn't properly understand what exactly was the implication of his answer to that paragraph. I submit to you that you have to accept that, however much criticism you can have against his not understanding exactly what went on, at least it is clear that he had a complete confusion in his mind.

Between him and his legal representatives, that didn't come out earlier, it didn't come out timeously. As far as the legal representatives are concerned, I came into the matter at a stage, I was involved at the stage when this specific application, this application before you was drawn. I saw that answer and I must convey to you, what went on in my mind because otherwise I think I would not do justice to my client's case and I would keep information from you which I think is vital for you to decide on this specific issue in this application.

If one looked at the Act, I submit to you that the Act itself is confusing and if you then compare it with the application form, it is even more confusing. It is a piece of bad legislation with all due respect, because if one looked at the requirements for amnesty in Section 20(2), then in paragraph (a) you find the following, I think I must just page to the English version so that it is easier to follow. That paragraph (a) of subsection (2) of Section 20 reads if I can just take out the parts applicable, in this Act, act associated with a political objective means any act which constitutes an offence, which according to the criteria in subsection (3) is associated with a political objective, and which was committed within the Republic during the period 1 March 1960 to the cut off date by any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or movement.

If one applied ordinary rules for the interpretation of statutes, this would indicate that the legislator tried to make a distinction in this paragraph between on behalf of and in support of. If one read this paragraph, it would therefore occur to one from a legal point of view, that on behalf of in this paragraph, carries the meaning of agency, as opposed to just in support of the movement, because if it is distinguished from in support of, you have to have the element of order or approval.

That I submit to you is the immediate implication of this paragraph, but if you page to the criteria in Section 23, I submit to you that there the implication is that they are synonymous, that on behalf of doesn't mean agency, it doesn't mean that it would have had to have the approval or that it was as a result of the command or an instruction from the principal, because in Section 23 it says whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria.

Then paragraph (e), whether the act, omission or offence was committed in the execution of an order of or on behalf of, now suddenly on behalf of is distinguished from an ordered act. Now there is total confusion and it goes further because it is followed by or with the approval of.

Now it is not agency that comes into play, it is not representation, it becomes synonymous with what is said in paragraph (a) of subsection (2) of Section 20, in support. It becomes just in support of, that is also on behalf of.

I want to convey this to the Committee that I was confused, I am honest with you, to this day I say that the Act is confusing, but eventually when I made the conclusion on a relook of the Act and restudying it, and coming to the conclusion that you must eventually actually conclude that on behalf of doesn't imply that there has to be an order and it doesn't have to be with the approval of the principal.

When I came to that conclusion, I decided that it is clear in the light of paragraph 10 of this application, that that is the reason for a clear contradiction. You can't distinguish the two, you have to say in paragraph 10(a), that it was on behalf of, because what the applicant describes in preceding paragraph 10 is on behalf of in terms of the Act if you will, the eventual best interpretation or the most favourable interpretation for the applicant. The wider interpretation which I have tried to indicate to you.

That is why at a late stage, when we came to the application, on the very day of the application, I told my client that this is wrong, it is not what you are describing in the preceding paragraph and we have to amend it. I didn't explain it to him and I thought I couldn't explain it in the time available to him in such legal technicality as I have done to you now, and he gave me instructions to amend it.

If legally that was the way that it has to read because of what he has said in layman's terms in the preceding paragraph, by all means amend it and that is the basis on which I asked you for an amendment.

The fact that I did so after cross-examination, perhaps you can criticise me for that, perhaps I should have done it earlier after the main evidence, before cross-examination. My idea was at least to get it in as early as possible, but there was also another consideration where I first wanted to have the oral evidence confirming the trend that you see in paragraph 10, the actual layman's terms of the application in paragraph 10, under oath of my client, before I moved for the amendment, that was a consideration why I moved it at that stage.

I submit to you with respect against that background that no assumption of the lack of credibility on the part of my client should be made because of that specific amendment moved before you in this application.

Just one last aspect that I would like to draw the Committee's attention to, by way of precedent, I would like to refer the Committee to amnesty application, AM7983/97.

That is the application of Mr Trevor Armstrong Tamsanka Tutu, which was not an application which was heard in an open ...

CHAIRPERSON: It was a chamber decision.

ADV PRINSLOO: Chamber decision.

CHAIRPERSON: Well, I certainly wasn't involved in it.

ADV PRINSLOO: Yes, the members of that Committee were other members.

CHAIRPERSON: (Indistinct)

ADV PRINSLOO: That is correct Mr Chairman, but I submit to you that the requirements for amnesty whether it is gross human rights violation or ordinary violation of human rights, remain exactly the same.

I just wanted to quote from this application, from the papers of this application to indicate how widely a specific Committee, Amnesty Committee, defined the requirements or how wide a description of the objective and the motivating factor, etc, that Committee accepted as sufficient for amnesty.

If I may just quote from the application papers. The political objective sought according to the application papers in that amnesty application, the paragraph 10 of that application paper reads, to prevent SAA and its flight crews from treating blacks as inferior beings, to make the Police and other government authorities realise that their continuing harassment of me and my family would not be acquiesced to in silence.

The crime which this applicant had committed was a contravention of Section 2(2)(b) and Section 2(1)(g) read with section (i) of the Civil Aviation Act 10 of 1972, because he made an allegation that there was a bomb on board one of the -

CHAIRPERSON: He delayed it.

ADV PRINSLOO: He delayed a flight. That is the political objective thought to be achieved by this applicant.

To make the Police, and I repeat with respect, to make the Police and other government authorities realise that the continued harassment of me and my family, would not be acquiesced to in silence. No reference to a political organisation, liberation movement, anything, me and my family.

Then the answer to questions in paragraph 11(a) and (b) as to, I read the question in paragraph 11(a) just for remind sake, was the act, omission or offence committed in the execution of an order of or on behalf of or with the approval of the organisation, institution, body, liberation movement, State department or Security Force concerned, the answer there was there was at the time a general overarching intent to render the country ungovernable, and it is in terms of that that my action should be considered as acting on behalf of the liberation movement. A general overarching intent.

Paragraph 11(b), the question if so, state particulars of such order or approval and the date thereof and if known the name and address of the person or persons who gave such order or approval. The answer to that was as stated before, this was a general order and it was not given to any particular individual - compare that to the present application before you, but was meant to be carried out by each person as and when they could.

It was reported in the media from the time of the various states of emergency which were promulgated in the 1980's. I submit with respect to you that if one looked at this application in which amnesty was granted on this basis, it is so wide that if one tried to distinguish the present applicants on the basis of their answers to the same questions, in their applications, there would be definitely a departure from the precedent set in this particular application.

CHAIRPERSON: On that one, Mr Prinsloo, does stare decisis apply and we, I am not saying we are, but we may be of the view that that was incorrect?

ADV PRINSLOO: Mr Chairman, I submit to you I don't want to argue that stare decisis applies. Personally I don't think it applies, but there is another consideration which does apply.

That is the basis of this Committee and the whole Truth and Reconciliation Commission and all its structures, is truth and reconciliation and especially the factor of reconciliation.

I submit to you with respect Mr Chairman, that you have to, every Amnesty Committee has to be able to also justify the decisions, not only of yourselves, but other panels of Amnesty Committees. And there has to be clearly a signal to the general public, that if, to put it in layman's terms, what is good for the goose, is good for the gander. That has to be clearly demonstrated by all Amnesty Committees.

CHAIRPERSON: Even-handendness?

ADV PRINSLOO: Even-handendness Mr Chairman. I submit to you that where that particular amnesty application was successful, especially because of also the person involved which, let's admit that, is a very high profile person, it is the son of the Chairman of the Truth and Reconciliation Commission.

One has to bear it in mind, and one has to lean back as it were, and I want to urge you to lean back in the light of this decision, if you do not agree with the decision of that Committee because you think maybe the answers given were too wide and general, I want to argue before you that you should still consider, even under those circumstances, against the background of judgements or decisions like these, whether it would be in the interest of reconciliation if you stuck to a more rigid application, or a more rigid interpretation of the Act and in this case, made your decision only on that rigid basis. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Prinsloo. Would this be a convenient stage Mr De Koning, to take a short tea adjournment. I see we have run a bit over eleven o'clock, but I know that the interpreters need a break and we will then take 20 minutes. Would that be sufficient? Thank you, we will take a short adjournment.




MR DE KONING: Thank you Mr Chairman. Mr Chairman, I am not going to be very long. I associate with the submissions of my learned friend, Mr Prinsloo.

I however, would like to elaborate on a few matters that he did argue. The first of which is the way I remember it, the last of the aspects that he dealt with, and that is the evenhandedness and the equal treatment for all applicants.

In this respect I would also like to refer the Committee to Section 9(1) of the current constitution, the new Constitution Act, 108 of 1996, which reads, every one is equal before the law and has the right to equal protection and benefit of the law.

I would submit that the particular legislation that we are dealing with now, does afford certain protection and certain benefits to an individual and I would submit that this then underlines the principle of evenhandedness and equal treatment for all applicants.

Then further, if I may refer you to another aspect is, I would submit that as I have dealt with the content of Section 20(3), and the requirements laid down therein, in my heads of argument, I have listed them in my heads from page 3 at the top of the page, and then marked them a, b, c, d, e, f, g, sorry, I am mistaken, I am referring to page 5 of the heads which says the relevant portions of subsection (3) read as follows and then I had listed them, a, b, c through to f.

I submit Mr Chairman, that it is not a matter that one needs to comply with each and every one of those and if you don't comply with one, then amnesty cannot be granted.

CHAIRPERSON: I agree completely with you there ...

MR DE KONING: Thank you, and then there is the other aspect which I have dealt with on page 4 at the bottom of the page, where I refer to subsection (4) of Section 20, which refers to the repealed legislation.

That I would submit is a further indicator that there is an absolute need for evenhandedness and that even people who were granted indemnity and amnesty prior to the current or the enactment of the current legislation that we are dealing with now, should be borne in mind, the way those people were treated, and I quote the relevant portion of that repealed legislation on page 24 of my heads, of which I would like to refer you to under the heading (g) Application of the criteria laid down in repealed legislation. The criteria laid down by repealed legislation, it is submitted were very wide ie peaceful constitutional solutions and unimpeded and efficient administration of justice.

In the one instance, that is referring to the 1990 Act and where an act was advised, directed, commanded, ordered or performed with a political object, in the second instance and then I refer particularly to paragraph 2 on page 25. An act with a political object, in terms of the last mentioned Act, being inter alia an act performed with a bona fide belief that such object or interest will be served.

That I would submit clearly is a subjective test as to what was going on in the mind of the perpetrator of the act. What was his bona fide belief? That brings me again to the question of objective and motive which Adv Bosman debated with my learned friend.

I submit that these terms are clearly very closely related or they are used inter related. In one instance it is motive and in the other instance it is objective that is used and that I say on account of the fact, and this is borne out by the Act again, if you would turn to page 5 and 6 of the heads again, in my quoting of the relevant portions of Section 20(3), my learned friend pointed out to a portion thereof being motive of the person.

If we turn the page over, then we see (d) another factor that needs to be taken into account, is the object or objective of the act, and in particular whether the act was primarily directed at a political opponent, State property or against private individuals.

I would submit that that again supports the fact, read with the old legislation, bearing in mind the bona fide belief of the perpetrator and this now, this act we all know were directed against two individuals, but the bona fide belief of the applicants, I would submit, cannot be said that they are incredible, they are lying in as much as they say that their belief was that they were advancing a political objective, ie the disrupting of the election.

ADV BOSMAN: Mr De Koning, how does the acts of your client and his co-applicant, how can they be distinguished from other acts perpetrated against individuals, in other words what is a distinguishing factor?

MR DE KONING: I would submit that a distinguishing factor is the following: The evidence before the Committee is that on the morning of the 27th of April, these people went to town, they travelled passed the polling station and they observed what was happening there.

Immediately thereafter they went to what I would term, their link with, or their prime link with the AWB, being Mr De Bruyn, they discussed what they saw there and they discussed what they heard on the radio while travelling from the polling station ie the bombing on the East Rand which they had learnt of.

De Bruyn told them that this clearly was if my memory serves me correct, "the battle has started", or something to that effect. And De Bruyn, you would remember, particularly in response to a question by myself in cross-examination, conceded that the manner in which he spoke to these people on that occasion, could clearly have been taken by them on reasonable grounds to believe, all that is now short, or all that is now to happen, is for you to make your respective contributions.

They left. They did embark upon drinking, that is clear unequivocal, that is the evidence, we can never get away from that. What happened when they now came to the point where they were at the brink of committing this crime? They went from the second applicant's house where the drinking took place, to the first applicant's house, to take the firearms. From there they went back to De Bruyn.

In other words the very last thing that they did, before committing the crime, before pulling the trigger so to speak, was to consult De Bruyn. Why? De Bruyn being their prime link with their political organisation again, being the one who told them this morning "the battle has started", who created the impression with them what I am expecting of you and what the organisation is expecting from you now, is your input.

They go and consult him again, they are already armed. Clearly they want to know from him, is he perhaps going along or something of that nature. I don't know what they wanted to know from him.

But their state of sobriety at the time, I would submit was still good enough for them to carry out the very same objective that they had in the morning, when they consulted De Bruyn, ie a political objective.

ADV BOSMAN: A distinguishing factor, seen from the perspective of the applicants, but seen from the general public perspective, what would the distinguishing factor be? I mean, let's assume the normal number of crimes were committed on election day, I mean election day certainly did not put an end to ordinary crimes, so seen from the public perspective, what was a distinguishing factor in this regard?

CHAIRPERSON: I think just on that one, they shot at the driver of a vehicle that they believed to be a taxi. Could it not have been perceived as being taxi war incident, and if so, by the general public, how would that have furthered the course of the AWB or any other political party, if it went down as nothing more, not nothing more, but as a taxi war incident particularly as we don't have any evidence of a report back saying we claim responsibility for this?

MR DE KONING: Mr Chairman, all I can submit on that score is their evidence. They say that it was an act of terror in order to induce fear with the general public and if my memory serves me correct, the second applicant, Mr Peyper particularly said at black people who they perceived to be supporters of the ANC and being a minibus, a taxi who, on their perception carted people clearly to and from the elections.

I would submit that one can ask the question perhaps justifiably as to what would the perception have been in the minds of the general public, but particularly referring to Act 35 of 1990, I would submit that the qualifying factor here is what they believed and the evidence before you clearly is that they believed that that contributed to the political objective of the AWB.

ADV BOSMAN: ... that they thought that the driver of the vehicle had pulled off and that they had missed, and I think the argument has been submitted by Mr Botha that if they wanted to make their contribution and they had now, on their own perception failed, why did they not try again either with the same vehicle or another vehicle? It is also, I think we would like to hear you just on that score.

MR DE KONING: Or for that matter, the next day after they had spoken again and we know they had spoken the next morning, they approached one another and then they were shortly thereafter arrested if my memory serves me correct.

One thing that one must never lose sight of I submit, is that no one whether he commits an act or a crime with a political objective or a political motive or otherwise, wants to get caught.

The question was put to Mr Peyper if my memory serves me correct, the second applicant, but why not shoot at the polling station, you could do far better there, but the point is just even a terrorist does not want to be caught, particularly not caught in the act.

The mere fact that the vehicle veered to the left and they might have thought that they have not succeeded, I would submit does not take the matter anywhere. The question is what were their motives as at the moment when they perpetrated the act, not ten minutes thereafter or half an hour thereafter.

What were their motives, what were their bona fide beliefs when they perpetrated the act and I would submit that there is no, there is nothing on record in any event, in the evidence, which justifies rejecting their evidence as to what their motive, their objective was when they in fact perpetrated the act. I would submit further that the proximity of their act to the greatest political event in the history of this country, being the first democratic election on the 27th of April, clearly the proximity there and the closeness of their act to that particular event, must support the submission that it was clearly politically inspired.

Why not do it the day before for that matter, if it was just a matter of wanting to kill two black individuals? Why not do it on the 31st of May for that matter of the same year? I submit that all of that lends credence to their version that they bona fide believed that they were furthering that political cause when they acted as they did.

Another aspect is that on the evidence, if my memory serves me correct, there was an argument with one of the people at this particular house where the drinking and the ... (tape ends) ... that he did not want to go along and they said to him, well, you were not prepared to do your bit for the country or for the organisation or whatever the case is. I submit that that further lends credence to their absolute belief that what they were doing, was in furtherance of the cause of the political organisation which they clearly supported.

That being so, I would submit that that should follow that they be granted amnesty.

If you would permit me to just peruse my note. My learned friend Mr Prinsloo has made much of it that it was widely publicised that the AWB had said that there would be no take over or if there was a take over on the very same day, they would reverse the take over. I would submit that the highwater mark of a take over of power in this country, was the election.

I would submit in all fairness that it was well before the election, a foregone conclusion as to who was going to win the election. That was clearly the perception in the minds of these people. That was the take over, again the close proximity of the crime to the major political event which they were at various instances, at public meetings and in private discussions with members and leaders of the AWB, told to avoid.

I remember particularly at the last occasion when we had a discussion and agreed that we would file heads, that we were requested also to deal with the influence or the causation of alcohol abuse in this matter. I have already submitted that on the evidence before you, as at the time that they went to visit De Bruyn's house on the second occasion, it was clearly to seek either guidance or consent or an order or whatever in respect of what they had already contemplated earlier the day, when they visited him.

So their state of sobriety could not have deteriorated to such an extent that it could be said that they did not know what they were doing and that it was inspired by alcohol abuse, by drunkenness or whatever.

I would submit that if one had to also take cognisance of the judgement of His Lordship, Mr Justice Mynhardt in the criminal trial, it was clearly said and found in that particular occasion, that these two factors did run hand in hand.

It was clearly a political thing. That there was alcohol and most likely alcohol abuse involved in it as well, I would submit I can't really argue why these people come and say on their own version, they did indulge in excessive consumption of liquor at the time, but I will submit that that is clearly not the overriding motive or cause of what they did on that particular day.

ADV BOSMAN: Sorry, may I just ask, you have now conceded that there is a difference between the motive, the driving force and the objective, that which they saw to attain. If on the evidence, and I am putting it purely hypothetically, it was found that the alcohol abuse was the primary driving force, in other words if they had not used alcohol, they may not have done this, how would you then argue in regard to the political objective? Would you say that the applicants would be entitled to amnesty?

MR DE KONING: Can I just make sure that I understand the proposition that you are putting to me, correctly. Is the question that we must accept hypothetically that on the morning of the 27th, they did speak to De Bruyn, they did form a intent to perpetrate some or other act, or commit some or other act with a political objective and they did not drink, come the time for action, they would not have acted? Is my understanding correct?

ADV BOSMAN: Not quite. Correct me if I am wrong, and I may be wrong, I don't think there was any evidence to the effect that they had formed the intent the morning after they had spoken to De Bruyn, De Bruyn had conveyed to them "the struggle had started", and only after that did they sort of discuss, after they had gone shopping and bought the liquor. My hypothetical situation I am putting to you is that if they had political talk as Judge Mynhardt put it, and then consumed so much alcohol that the alcohol was the driving force which really how can I put it, which really let them make up their minds we are going to do this, would you say they are entitled to amnesty?

MR DE KONING: If the alcohol, let us use the following argument, if a person for instance has a grudge against an other and he wants to do him bad, but he does not do it because of the fact that he is sober and now he gets to a party or whatever, and he has, he becomes intoxicated, and by so doing, to a certain extent his judgement is impaired, his judgement then clearly is different to that which it was when he was sober, say the morning of that particular day, and now in his intoxicated state, he decides well, the bad that I want to do this man is to kill him.

I would submit that he can still be entitled to amnesty. The fact of the matter is what was the motive, what was the objective that he wanted to attain, was it a political objective, whether he was sober or intoxicated, I would submit it is basically irrelevant.

The objective was a political one, end of the matter. Let's accept for all intends and purposes someone wants to kill the President of a particular country. He decides it beforehand some day I am going to do it, but he doesn't have the courage to do it because he is afraid he might get caught or whatever, or he sees certain difficulties in what he wants to do. On a particular day he consumes a great deal of alcohol and now he oversees certain obstacles in his way and he does this deed, he commits this act.

It remains a politically motivated act or an act with a political objective. It does not change the complexion of the crime or the complexion of the act. It remains associated to a political objective, and that is what the Act requires.

It might impair his judgement, I would submit it is the same thing which we have in the courts of law each and every day, where the consumption of alcohol is perhaps an extenuating circumstance when it comes to sentencing, but it does not justify what the man has done, it does not necessarily render the act that he has committed, not a legally qualified actus reus, it doesn't make that difference. It doesn't alter the objective, it doesn't alter the motive even.

In the circumstances, I submit it does not affect the situation.

ADV GCABASHE: ... but where using your hypothetical situation, he doesn't kill the President which was his main aim, he kills a member of his family, a member of his staff because they are all in this instance, all yellow people, like the President, or they all support his party. Would he still be entitled to amnesty in those circumstances because we are now looking at the act?

MR DE KONING: I would like to respond in the following manner. Let us accept for all intends and purposes that we have exactly these facts as we have before this Committee today, and a person comes walking in the door here now, and he produces to us a video on which some or other leader of the AWB at a particular time, whether it be at a house meeting or at a public meeting or whatever the case might be, had stated prior to the commission of this crime, prior to the 27th of April, I am a General of the AWB for that matter and I suggest or I say that if you want to contribute to avoiding the take over on the 27th, then you must go out and shoot the drivers of taxi's.

What difference does it make, there was an order then, but the act has remained the same. To this moment we do not know about the order, now we know that there is an order, very belatedly so to speak, what difference does it make? It makes no difference.

The absence of an explicit order, does not make the difference. The objective, the political objective clearly pronounced by the AWB, was to avoid the take over by whatever means, because they said if this take over takes place, we will regain power on the very same day. Whatever means the members, the supporters applied to avoid the take over, I would submit was clearly within the umbrella or under the umbrella of the overriding authorization of whatever you do to avoid the take over.

Whether it was an explicit order, shoot individual taxi drivers or plant a bomb at a United or whatever, remains the same, the objective was and the objective to which this act was associated, on the motive, the belief, the proximity, etc as I have dealt with in my heads, clearly are associated with that political objective of the AWB, avoid the taking over.

The point of the pyramid of the take over I would submit, was the 27th of April 1994.

ADV GCABASHE: I still have a problem with the target. Your target then, in terms of what the AWB's objectives might have been, I don't understand you to be saying the AWB would say if there is a bunch of school children, under five year olds, walking passed you at an opportune moment, and they are all black children, shoot them. It wasn't an indiscriminate order, just whatever you can do, do it, irrespective of who or what, as long as they are black people who you think, subjectively, support the party that is going to take over. That is not what you are saying, there must be some form of - if you are trying to do what the AWB has asked you to do, there is some basic structure, there is some ideas to what your target must be, what impact you want to make by going for that particular person, building and using a particular method in which to target that building or that person.

My problem here is it seems to have been an indiscriminate picking of a taxi carrying two people who they just didn't know. How were they achieving the objective of the AWB?

MR DE KONING: I submit that on their own evidence it was an act of terror, inducing fear with people. We know that taxi's, minibus taxi's are I would submit, just about one of the main sources of public transport and what they say and it is a common fact very well known fact, that terrorists commit acts of terror to induce fear with a particular society or a portion of the society to obtain political objectives.

It is the same thing. The evidence was, I think the first applicant said he contemplated planting a bomb at the United in Brandfontein. What difference would it have made if he planted a bomb at the United Building Society or United Bank or whatever as opposed to what he did here?

The question remains, on the evidence before the Committee, what was amongst others his motive and what amongst others, did he subjectively believe he was going to attain with this act. I would submit that those are factors which weigh heavily in this application together with the context in which it took place.

I am not a witness, but the moment that I heard on the news of this shooting, there was nothing in my mind, anything else that what happened there, was a politically inspired crime. It was the day of the election, it was said that AWB people or affiliated or supporters had shot black people. We all know that there was going to be a change in the political dispensation, there was going to be a government, or a take over of the power in this country.

We all knew that the AWB had widely propagated that this take over of power should be avoided with whatever means, and violent means.

ADV GCABASHE: Fair enough, but the intention you yourself have stated, that they did not intend to be caught, they did not intend people to find out that the AWB themselves had committed this act.

You only found out because they were arrested and this was publicised, that was not their intention when they set out to commit this particular act.

MR DE KONING: I submit that their intention not to get caught cannot alter their intention with the act. Their motive, their belief, their objective. They were not the leaders of the AWB, we all know that today. There was even a dispute as to whether they were official members of the AWB.

What we do know however is that they were supporters, and I would submit and I have made this submissions in my heads, that that qualifies them for amnesty. I would submit that even on their own evidence, they didn't have a basis upon which they could go public and say the AWB did this. They would most likely have been repudiated. De Bruyn himself said that he did not condone what they had done, despite the fact that they consulted him in the morning and they attempted to consult him in the afternoon.

He knew full well that they believed him to be a leader of some sort. I submit it doesn't alter the situation.

If you would just bear with me for a moment Mr Chairman. My learned friend points out to me and I would submit it is a valid submission, let us accept for all intends and purposes that on the 27th or on the morning of the 28th, since this happened on the evening of the 27th, on the morning of the 28th, it became public knowledge that on the evening of the 27th, 1 000 black people all being occupants of minibus taxi's were shot by white people, I would submit it would have made a great difference to the election and the attendance of the election for that matter. It could be without announcing that it was the AWB who did it or them proclaiming to have done it, or accepting responsibility for it.

Accepting responsibility for the act after the event, I submit does not change the intention of the person committing the act.

Perhaps finally, Mr Chairman, we must never lose sight of the fact that the aim of the National Unity and Reconciliation Act, is clearly to reconcile the strife torn nation. That is clearly so and the second applicant, and that might distinguish him to a greater or a lesser extent from the first applicant, has approached the victims, even prior to this application, prior to being convicted, prior to being sentenced and sought forgiveness from them, attempted to reconcile.

I would submit that that is not a factor that should be disregarded or not play a role in this whole matter, particularly since the main objective is clearly to unite and to reconcile the nation. Clearly on the evidence before you and I would submit that there is not a sound basis for rejecting the evidence of either of the applicants, because there is clear corroboration for what they say.

In the evidence of De Bruyn on the one hand, in the evidence of De Ru at the bail application, that this was a politically inspired crime. Again if one looks at the matter holistically and being evenhanded, then I would submit that amnesty should be granted to these two applicants.

Unless there is anything else that you particularly want to hear me on Mr Chairman, I would only repeat what my learned friend has said. Thank you.

CHAIRPERSON: Thank you Mr De Koning. Mr Botha?

MR BOTHA: Thank you Mr Chairman. Mr Chairman, I apologise apparently a gremlin went wild in my heads of argument. What happened was after I perused the document on the screen of the computer, something went wrong, the save button wasn't pressed and I didn't read through the printed document and I apologise for it.

I have prepared a full set of copies of the rectified heads of argument for all the members of the Panel as well as the legal team on the other side. They already have copies.

Attached to the original document in your possession, I have attached the original affidavit of Mr Godfrey Papiyana.

CHAIRPERSON: Yes, thank you Mr Botha. I don't know if the other legal representatives want to see it.

MR BOTHA: Thank you Mr Chairman. I do not have much to add to the heads of argument. My learned friend, Mr Prinsloo pointed out in paragraph on page 4, and he said that the argument was illogic. He referred to the phrase therefore as more fully appears from the discussion under paragraph 5 hereunder, it is my respectful submission that the applicants were never members or supporters of the AWB.

He said it is illogic. Under paragraph 5, I have discussed Section 21(c), applicants made full disclosure of he facts and with that I maybe tacitly incorporated credibility.

In their evidence presented at the bail application, as well as in their evidence in the Supreme Court, as well as their plea in the Supreme Court, everything pointed to one thing and that is that they randomly went and shot black persons.

Even in the first applicant's affidavit, that is Exhibit A, he clearly states that they went to and their intention was to go and shoot black people.

He mentioned further down that it was to jeopardise the election. That is why I say the evidence also showed that the evidence I mean in the Supreme Court and in the bail application, showed that we have no political affiliation. That is what they stated.

That is proved by the fact, the facts of this matter, they went just to do that, to go and shoot two innocent black persons in a taxi far from the election polls.

That is what my submission there was, which might be understood wrongly by my learned colleague. Then, with respect to what Mr De Koning said, he said that even if their judgement were impaired by the intoxication.

It wouldn't have made any difference to this application. My submission is that it is wrong. Can an intoxicated person act reasonably and on reasonable grounds as this Act requires him to do, and my answer is no. Can he act bona fide, I don't think so.

The evidence and that is in the affidavit of Mr Papiyana, is that the second applicant said he is sorry for this foolish thing he did. A foolish thing, is that, did they act on reasonable grounds, no Mr Chairman.

ADV GCABASHE: But that foolish thing could also be the fact that they had been let down by their organisation and on reflecting on the events of the day and the aftermath of that, he did feel it was a foolish thing. The fact that he had now been let down by his organisation, he felt foolish, he had no support, that is one interpretation?

MR BOTHA: Yes, but I tend to disagree because that is ex post facto, the test I assume and I submit is that on the moment when they decided to go and shoot black people, that is the test. Not afterwards.

On that very moment, when they decided, they decided to go to Mr De Bruyn's place, they couldn't find him there. He is there Commander. There is no evidence that earlier that morning, they had planned this thing.

The evidence is that they planned this after the consumption of lots of alcohol. My learned colleagues both submitted that they went in the first instance to Mr De Bruyn and they had this political discussions, but according to the statements, they went to paragraph 19 of Exhibit A, says that they went to get a carburettor. They also, it was said that they drove and it seemed as if they patrolled the area and the election polls in a kind of military way, but the way I interpret the evidence is, their wives went with him, or at least the second applicant's wife went with them.

It wasn't really a politically intended drive to see what they can do or to observe whatever they want to do. Then they also submitted that the evidence of Mr De Ru is very important and he is the sole indicator that it was a politically intended crime. But Mr De Ru's evidence was clearly based only upon hearsay.

Mr De Ru testified and said that he heard that they were politically involved. He also said that he saw the applicants at Mr De Bruyn's house. He said the second applicant was in his car. If there was earlier this morning, when they were with Mr De Bruyn, no order, no order to go and shoot at people, why did the second applicant stay in the car. It is an important thing, he's got to have from his Commander a specific order to kill someone, but he stayed in his car. Evidence in the Supreme Court was apparently he wasn't in a real state to walk at that stage. With all respect to my learned colleagues who referred to the matter of Mr Trevor Tutu, my submission is that each and every case has to be decided on its own facts and grounds. I find no indication in the Act that this Committee is in any case bound by decisions of other Committees, even if it is Mr Tutu's son who was involved.

I also find there was also reference made to repealed legislation. Unfortunately we have here in front of us, a new Act. The repealed legislation has no bearing on this. If we have to refer to the repealed legislation, neither of the applicants would have had the opportunity to be in front of this Committee today.

Mr Chairman, besides this, I do not have much to add to my heads of argument. Besides pointing out Judge Mynhardt's (indistinct) which was page 7 on the top, fires were lit and there were also alcohol available. This aspect is one disturbing aspect in this case, because not only the use of alcohol, but also the fact that there was such a large amount of alcohol used by the two applicants. It seems then that it could be the direct cause for what happened later that day and it can be described in one word as a tragedy.

Mr Chairman, Judge Mynhardt listened to the evidence of the second applicant as well as six witnesses and three witnesses who testified on behalf of the second applicant, sorry the first applicant.

My submission is that there is no other factor added in this application for amnesty by both applicants, which alter this decision that the liquor is the direct cause of this tragedy. Thank you Mr Chairman.

CHAIRPERSON: Thank you. Sorry Mr Botha, thank you but Adv Gcabashe wants to ask you ...

ADV GCABASHE: Thank you. Just going back to your point on political affiliation and this not being mentioned in the bail application, plea or in the Supreme Court at all. What then do you want us to make of the argument that has been advanced, that the reason for this was that they didn't want to attract the death penalty. That sounds logical enough?

MR BOTHA: I couldn't find any evidence that the mere fact that something was done with a political objective, during that period, could have been the sole cause of the death penalty. The fact that they heard about the Radora 4 or 5 people who assassinated black people in a road block, including children and cut their ears off, clearly that was distincted, or can be distinguished from this particular matter because no violence of this nature was used.

They didn't torture anybody. There was no reason for them to think that.

CHAIRPERSON: It is type of two edged sword to admit that they lied to avoid the death sentence, because that is the exact reason, can then be advanced, that maybe they are not telling the truth to get amnesty. Because if they had lied to protect themselves, it is a two edged sword. It doesn't take it much further.

MR BOTHA: I agree.

ADV BOSMAN: Mr Botha, may I just sort of refer you to paragraph 4.2.1 on page 5 of your heads. There you deal with the motive and we are now all agreed that motive and objective are two separate issues.

I take it now that your submission is really that their objective was to attack the first black person. What would you submit induced them to decide to attack the first black person?

MR BOTHA: The reason for me using the word motive was because it is under the discussion of the criteria, where the motive, the driving force, was used.

ADV BOSMAN: I understand that. I am not criticising you having used motive, I am just saying in view of what we have discussed since, we are now agreed that their objective according to your submission, was that they wanted to shoot the first black person.

What would you argue now if we have this distinction, what induced them to do it, in other words what was the driving factor for them to do this?

MR BOTHA: Nothing but liquor, the alcohol.

ADV BOSMAN: If we take into account that these two applicants were both heavy drinkers, I think it came out in the evidence, that they were mine workers and especially Mr Peyper, if I remember correctly, after his brother had been killed, drank fairly heavily. They had no previous convictions, is it a mere coincidence that this should have happened on election day?

My question is does it not point at a political objective, the fact that given the circumstances that may have been there prior to election day, should we not infer perhaps that election day really was a factor which induced this together with the liquor?

MR BOTHA: I think that liquor played the major role, but it may be so that election day caused all over the whole country as they pleaded, loose or general political talk.

Maybe previously when they were intoxicated, they were not involved in this political talks. I think that to a very much lesser extent, the general political talks on election day, might have played a minor role. Thank you.

CHAIRPERSON: Thank you Mr Botha. Mr Prinsloo, do you have any reply?

ADV PRINSLOO: May I reply briefly Mr Chairman. Three points on which I would like to reply Mr Chairman.

Firstly, my learned friend has argued but not strongly, that there might be a distinction made between the two applicants on the basis of the second applicant's particular efforts to try to reconcile with the family, the Papiyana family.

In this respect I want to urge the Committee not to distinguish between the two applicants. If I may just point out a few factors. The first one is that in his evidence per affidavit before this Committee, in the last paragraph of that, the first applicant has gone to great lengths to express his regret and his disillusionment about his previous way of thinking, which leaves no doubt as to his present frame of mind, which is a reconciliatory frame of mind.

I also want to bring to the attention of the Committee, it was not my intention but then my learned friend brought up the argument and now I feel I have to do it, that today my client has approached me and asked because Mr Papiyana senior is present here, my client became aware of that, whether I could arrange a conversation. The conversation was arranged. My client and his wife spoke in private with Mr Papiyana and my impression from the conversation is that both the parties involved in that conversation, came out very relieved persons.

It seems that there was a cleansing effect on both sides that this conversation had and my impression is that it served the purpose of reconciliation very well. I thought I must bring that also to your attention, I think that is very important.

CHAIRPERSON: Thank you Mr Prinsloo.

ADV PRINSLOO: The second aspect Mr Chairman, just briefly the fact, it is my learned friend's client actually but the argument, the question arose as to the second applicant saying now in his evidence that he thought it was a foolish thing that they did.

Again Mr Chairman, I think it is important in the same vein to realise that this is another indicator of the prime object of why we are all here. This indicates a frame of mind that is favourable towards reconciliation. The second applicant is a changed person in a very, very drastic way and so is my client, I submit to you.

The fact that they regard this thing that they did as foolish, as short sighted, that is the word that my client used in his affidavit, and other words to that effect, I think is one of the greatest plus factors in this whole application.

If a decision is made to grant them amnesty, it is on record in the open that amnesty is granted to two changed persons, who don't think the way they did before and who will play an important part in a new community, with a new political dispensation.

Lastly Mr Chairman, as for the reason for lying, I dealt with that in my heads of argument to persuade the Committee that they should accept that the applicants are now telling the truth. I dealt with that on page 6 of my heads of argument and I mentioned there three factors which I submit, are individual objective factors, not relying on the evidence of the applicants themselves, objective factors from which you can make the conclusion that what they are telling you now, as to the reason why they lied in the trial, is true.

Firstly, the suggestion by the State itself, by mouth of the State Prosecutor during their bail application, no doubt about his suggestion, strong suggestion that there would be a strong possibility of a death sentence if it transpired that this deed was committed with a political objective. I refer in my heads to page 34, lines 13 to 21 of the bail application.

Secondly, the evidence of both Messrs De Ru and the Investigating Officer in the bail application, that what they found was overwhelmingly in their opinion, a political connection, that this was a political act that was committed.

Thirdly, the finding of the Honourable Trial Judge, that there was an interaction between abuse of alcohol on the day of the election and the political background and specifically in the context of election day.

Those three independent factors, I submit to you and also in reply to what my learned friend, Mr Botha has argued, those three independent factors would indicate that you can believe the applicants that they are now telling the truth. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Prinsloo. Mr De Koning, anything in reply?

MR DE KONING: Briefly Mr Chairman. Mr Chairman, also dealing with His Lordship, Mr Justice Mynardt's judgement, I would like to point out in the index to the bundle, of the application, page 20 we find the brief summary of material facts that was attached to the indictment, paragraph 1 thereof reads as follows:

On the 27th of April 1994, the accused was with a group of other people at a social gathering and definite political preferences were expressed. Clearly there was, the table was set to lead evidence to the effect that there was politics in this entire matter.

Then we have the evidence of De Ru which we have dealt with at length in the evidence, if my memory serves me correct. Then we also have the evidence of Kok, the Investigating Officer and none of these testified at the trial. My learned friend, Mr Botha, the way I understand his submission, is very much on the line of counting heads. He says six witnesses testified at the trial, and yet His Lordship makes the finding liquor played a reasonable role.

Yet, there was no evidence neither by De Ru, by Kok, to the effect that this was politically inspired, and I would just like to allude to what Mr Kok said or Warrant Officer Kok said at the bail application on page 15 of the supplementary bundle.

Further questioning by the Prosecutor. Warrant Officer Kok, you were also involved in the investigation concerning the murder that happened on the Randfontein Road where black people were killed by members of the AWB, is that correct? Yes, that is correct. It happened in December last year on the Radora Road. This case was concluded? That is correct. There were murders committed with a political objectives, is that correct? Yes, that is correct. Which conviction was given to the murderers, those who committed the murder in this case? The worst conviction that could be done, namely the death penalty. Every accused was found guilty on four murders? That is correct. And all the accused, they all got the death penalty? Yes, they did.

So it is clear that their evidence, I would submit, that the Radora matter if I may call it that for want of a better description, inspired them to lie to His Lordship Mr Justice Mynhardt. It was clearly on that evidence that His Lordship came to that particular conclusion. I am sure that if Kok had testified as to his perceptions and he says also later on in this particular record, if I may just find the relevant portion thereof, if one had to look at page 22 at the top of the page, line 1, the facts that you obtained at this stage, convinced you that here was definitely a political objection, and he conceded, he said yes, that is right.

So the Investigating Officer after having investigated the matter, came to the conclusion that there was a political motive behind this, a political objective.

I would submit that one cannot look at the judgement of His Lordship Mr Justice Mynhardt in this matter in isolation. The matter has to be seen in its correct perspective, in as much as the evidence supporting the facts contained in paragraph 1 of the summary of reasonable facts, attached to the indictment was never led and there was such evidence available. Clearly if the State wanted to lead it, they could have led it, but they abided by a plea of guilty and the evidence of the accused, particularly the second applicant, to the effect that there was no political objective, which he clearly conceded before you that it was a lie, with a particular reason for that.

Then my learned friend, Mr Botha also made the submission of why would the second applicant have remained in the car at the, or during the second visit to Mr De Bruyn. I would submit we can speculate on a variety of reasons, but we know for a fact that at that stage there were already two firearms in that vehicle. Perhaps it was to guard the firearms, I don't know. He wasn't asked that when he testified before you.

We can speculate on reasons however, but I would submit that there is no reason to find that liquor was the reason why he remained in the car. Because we know for a fact that when it came to shooting, he was the one who shot, and with the single shot he fired, he struck the target. I would submit that is another indicator that he could not have been as intoxicated as my learned friend, Mr Botha, wants him to be.

CHAIRPERSON: At that point then, we also heard that the second applicant's wife pleaded strongly with him not to go and in fact, even went further than pleading and threatened to call the Police if they went off.

The fact that they actually went after that, do you say was due to their political fanaticism or could it be that they were intoxicated and were acting recklessly because of that?

MR DE KONING: It could well have been for a variety of reasons, it could be their fanaticism as you termed it, it could be also the fact that they didn't believe that she would really give them away by phoning the Police, which we know she ultimately did and this brought the entire crime to the fore, otherwise perhaps it would never have been discovered or uncovered.

The other fact is it might well be that as I have debated the matter with Adv Bosman, during my initial argument, that the judgement might have been impaired, but the fact of the matter is, they still had the necessary faculty to actually pursue their objective, ie an act which is associated with a political objective of the organisation which they clearly supported. I hope that answers the question Chairperson.

The evidence also was that the first applicant, if my memory serves me correct, disconnected the phone. They might have thought at the time, well we have resolved this one. Unless, there is anything else, those are my submissions Mr Chairman.

CHAIRPERSON: Yes, thank you Mr De Koning. I would like to thank the legal representatives for their argument. We reserve judgement, judgement will be handed down at a later stage, well decision will be handed down at a later stage. We will now adjourn, thank you.