Amnesty Hearings

ARGUMENT BY MR BIZOS: (cont)

...[inaudible] .1.1.11 and ask you to please put a reference on top of Page 9 that this submission is supported by the evidence of Mr Derby-Lewis in chief in the TRC 1, Page 339 - 341. C1 Page 339 to 341 and then Mr Chairman I would like to start at 6.1 through.

MR WILSON: TRC?

MR BIZOS: The TRC Record.

MR NGOEPE: Typed script?

MR BIZOS: The typed record.

CHAIRPERSON: The transcript?

MR BIZOS: The typed script.

CHAIRPERSON: Yes, just give us the page, sorry.

MR WILSON: Which transcript?

MR BIZOS: The first one.

MR WILSON: Which you referred to earlier as FR?

MR BIZOS: FR, I beg your pardon.

MR WILSON: Yes, not TRC.

MR BIZOS: I’m sorry. Let me be consistent. FR yes. FR1 thank you.

CHAIRPERSON: FR1 ...[inaudible] pages?

MR BIZOS: Pages 339 - 341. And then I would like to make a submission, yes, I would like to make a submission in relation to Paragraph 6.1.3, and to submit that although we have taken the list and the knowledge of Mr and Mrs Derby-Lewis for it’s purpose and dealt with it separately with the knowledge of the purpose for which the gun was to be used on both Mr Derby-Lewis’ and Mrs Derby-Lewis’ knowledge, what we would submit is that, if the Committee accepts that the list what was for the purposes of elimination then it becomes highly improbable that the showing of the gun was merely of the, for the purposes of showing that a start had been made in the accumulation of stock piling of guns for the future.

What we submit is that these two should be taken together and evidence of the intention to use the list for the purposes of assassination is in fact strong evidence that the use of the gun was not for the supposedly lawful purpose of self defence in the future. Mr Chairman I do not intend, with respect, reading out the passages. They are there for the Committee’s consideration and I do not want to burden the record, or to take up time unnecessarily.

I want to go to 6.2 on Page 11 where we submit that the Applicants’ lied about the purpose of obtaining the firearm and the silencer and again we submit that they should be taken together with the list. And 6.2.4 that we draw particular attention to the statement of Mr Derby-Lewis, the reference to which is given in 6.2.4.1 and we would refer to the fact that there it is stated that the question of procuring the gun was before February 1993, Mr Chairman.

Then, I would like to go to Page 14 and this is the Applicants have lied about the scope of the conspiracy as to the number of people who were to be arrested. I have already dealt with that in general terms and, but here are the references which are both to the Record and to their statements and we set out verbatim answers given to members of the Committee which clearly show what we submitted yesterday that their answers are so inherently improbable that their evidence should be rejected and that what is contained in their statements is true and what the overwhelming probabilities indicate that this was a murder list.

The untruthfulness of Mrs Derby-Lewis in the criminal court of course are of vital importance in relation to her credibility and on Page 18 we submit that the Applicants have lied about when the conspiracy to murder ANC SACP leaders was entered into and we submit in 6.4.1 on Page 18 that although Chris Hani was decided upon in February 1993 as the first target, the discussion as to what action should be taken started immediately after the referendum in March 1992 and intensified by the latter part of 1992 and we rely on that on the evidence of Mr Derby-Lewis which we give the reference to.

The names other than those identified as Revolutionaries were added to the list, to the hit list in order to cause confusion which may also be an excuse invented at the time of the criminal trial and we refer to the R4 statements in support of that submission. Walus’ statement that after the unbanning of the ANC, PAC and SACP in February 1992 when he became very concerned about the situation in the country, "especially during the second part of 1992 when Clive and I discussed the worsening of the security situation and the high level of unrest which deteriorated day by day. More and more policemen got shot on duty.

That was unacceptable for us and Clive and I started to discuss in the direction of eliminating selective members of the ANC, PAC Alliance. Clive asked if I was prepared to eliminate political opponents and I agreed to do so. Towards the end of February 1993 during the visit to Clive at his home, he showed me a list with nine names. We discussed the names on the list and I numbered them according to priority of elimination", accords with the probabilities and should be accepted without reservation and we submit that that is quite inconsistent with the denial.

MR WILSON: Mr Bizos can I go back for a moment. 6.4.1, you say that, you give us a reference and you say that, "discussions as to what action should be taken started immediately after the referendum and intensified by the latter part of 1992."

MR BIZOS: Yes.

MR WILSON: But in fact Derby-Lewis made it clear that his discussions with Walus did not commence then. At Page 777

MR BIZOS: Yes.

MR WILSON: He was asked and he said, "no, it was not, it was when everybody was talking about what action to take place, we actually decided in the latter part of 1992." It’s only a slight difference.

MR BIZOS: A slight difference, but certainly not February/March.

MR WILSON: No.

MR BIZOS: That’s really the ...[inaudible]. for that correction. It was too broadly, a little too broadly stated in the statement but the validity of the statement that they were lying as to when the conspiracy was hatched is submitted on their statements and in the Record Mr Chairman. The coincidence of what is contained in the statements and how much of it is in accordance with their evidence is of course an important factor as to whether the statements were taken freely and voluntarily or not.

And then we say in 6.4.4., Walus admitted in his evidence that he had once driven past Mr Mandela’s house during the summer of ‘92/’93. Walus is deliberately evasive about exactly when he drove past Mr Mandela’s house, after he admitted that he usually drove his brother’s white bakkie which his brother had in 1991 and 1992.

He further tries to confuse the date by making reference to having known where Mr Mandela’s house is by using the list of nine names as a source. We submit that the Committee should accept the evidence of Mrs Beyers, that she saw Mr Walus watching the house of Mr Mandela in July 1992. Mrs Beyers gave forthright evidence and had the opportunity to observe Walus when both their cars stopped next to each other at the traffic light.

She was a credible witness and the Committee should accept her reasons for not having come forward soon after seeing Mr Walus’ picture in the newspapers in April 1993. It is submitted that it would have been, could not have been necessary for her to come forward at the time as Mr Walus had already been arrested. It is submitted that the Committee should find that the conspiracy to eliminate leaders of the ANC, SACP was entered into at least during the latter part of 1992 and not in February 1993.

A point was made by Counsel for the Applicants that identification is a fallible process. We agree with that but there are difficulties in the submission when you are asked to reject Mrs Beyers as evidence because here we have a person who admits that he drove a white bakkie at that time although he says that it didn’t have bullet holes on it. Well, he may be telling the truth about that or may not, or it may be that I’m told, that sometimes there are stickers with, resembling bullet holes on cars, it may be that there was one of them but be that as it may, he admits that at or about that time he had the use of such a motor car.

He admits that although a little later he did go to observe Mr Mandela’s house, he is obviously being untruthful as to what the purpose was. He says that he was selling crystal glass from his father’s factory which had gone bankrupt a number of years before in Houghton and he happened to be passing by. Challenged to point one shopkeeper or one resident to whom he sold the piece of glass, he was unable to tell us.

If I remember correctly he said that he hadn’t succeeded in selling anything to anybody in Houghton in order to justify the -. Now why he should be in Houghton and by chance pass Mr Mandela’s house which one can almost take cognisance of is on a, in a quiet suburb, a T intersection, off the corner at the time and why he should be seen there is inexplicable. And this of course is further evidence that they were not truthful and forthcoming as to when the conspiracy was hatched, who were the victims to be and on that basis and the others we submit that amnesty should be refused.

CHAIRPERSON: When you talk about the conspiracy being hatched, between whom, between himself?

MR BIZOS: I submit that most certainly between the two Applicants and Mrs Derby-Lewis. The high degree of probability, high degree of probability that Mr Clark would not have been kept out of it and that the persons who supplied and transmitted the firearm are not innocent of it but for our purposes for this Application the Committee should in our submission find that Mrs Derby-Lewis was a conspirator and if that is so, their attempts to shield her are serious grounds for disbelieving them and amount to non-disclosure as well as that if there were at least nine people to be killed and the probabilities are overwhelming Mr Chairman that there were nine people to be killed or more than one to be killed because the answers to members of the Committee and to us in cross examination, what, how could the chaos have come about or if the chaos didn’t come about by the killing of Hani would you have stopped your grand scheme.

Would you have not have gone against the others, No. 1 and No. 2 on the list or No. 4, 5 and 6. So we submit that the probabilities are overwhelming, that there has not been full disclosure on when the conspiracy was hatched, who, everyone that was a member has not been mentioned and they have not been truthful about it.

MR NGOEPE: Mr Bizos, if we do find that Mrs Derby-Lewis knew about this but we don’t have evidence to find that she was actually part of the plot to kill, I suppose it’s possible just to have mere knowledge but not be involved in an incriminating way.

MR BIZOS: If she had not been associated with the list this may have been a defence available to her.

MR NGOEPE: Yes, I was going to point that out because we could only come to that conclusion if the Applicants were to overcome the ...[inaudible] of the list. Assuming they overcome the ...[inaudible] of the list, what we have would then only be the fact that she knew about it. She did not tell anybody else. She didn’t go to the police. She was aware of the discussion and that does not or would not make her surely a co-conspirator.

MR BIZOS: She may not have performed an executive act in the furtherance of the conspiracy.

CHAIRPERSON: Nor did she in any way encourage it’s commitment, through evidence.

MR BIZOS: No, well if we take the bulk of it out and say that she had nothing to do with the list then that may be so.

CHAIRPERSON: Well let’s talk about that list. I want you to clear up, with this evidence we heard a long long time ago and I might not be clear in my mind about certain things. One of the things I would like to clear up is, the list as she had it contained a large number of names. The list in it’s truncated form with only nine names was the one that was found.

Now is there any point in the fact that as far as Mrs Derby-Lewis is concerned she had not dealings with that list in it’s truncated form.

MR BIZOS: Now, with respect, the evidence on Record and in their statements, that list came out of her computer, the list of nine. Now I beg your pardon, I’m corrected, the nineteen was out of her computer.

CHAIRPERSON: Yes.

MR BIZOS: The nine she received from Arthur Kemp.

CHAIRPERSON: So she sent this list to Kemp in the first instance for particulars, the list of nineteen people?

MR BIZOS: Yes, to Kemp.

CHAIRPERSON: Yes.

MR BIZOS: And the evidence is both in the criminal record and here that Kemp gave her nine and that she then handed it over.

CHAIRPERSON: So now the list that she took to present to Mr Hartzenberg was the list of nine names and not nineteen, is that it? Which Mr Hartzenberg did not act on?

MR BIZOS: Yes, I’m not clear on it. It may be that there were both, maybe Kemp handed both back but whatever the position may be on her own statements, the list was a hit list. The list of nine was a hit list and she is associated with it. So that we are not dealing with a situation of mere knowledge, a passive, and also, having regard to their close relationship and once she was so active in compiling the list and being untruthful about the purpose for which it was compiled, surely the only inference that can be drawn was that she was party to the conspiracy.

MR NGOEPE: Can I then take my point to it’s ultimate conclusion. I’m leaving aside the question of the list because there are arguments both and for. Now you have said that if we take the bulk of, shall I say the poison or sting out of allegations against her, it will leave her with mere knowledge that, oh, these people were busy planning to do this and she should have known about, let’s assume she knew about it, didn’t go the police and the like, if we do find that she did know, then obviously it would mean that the Applicants did not tell the truth about it to the extent that they wanted to tell us that Mrs Derby-Lewis knew nothing, they would have lied to us.

Now, would such a non-disclosure be a material one. The failure to disclose knowledge on the part of somebody who did no more than just merely knew about it.

MR BIZOS: The way I have always understood the Law that mere knowledge is not enough except in the case of treason that you owe a duty to report and it wasn’t treason. But what I am, with respect, submitting is this, that one cannot approach this case in relation to the conduct of the two Applicants and Mrs Derby-Lewis without having regard to what the evidence and their own admissions are and what the probabilities are in relation to the list.

The list of nine was handed to, she is the one that asked, she is the one, she admits that she is the one who asked for these places to be reconnoitred and she in her own word says, "I couldn’t say on the telephone what to Mr Kemp what they were, what it was intended for, he is a politically astute person and he didn’t require any explanations."

Now, one cannot divorce that without taking into account that her husband with whom she has complete political and ideological identity and who also set herself up as one of the saviours of the country. One cannot take or ignore that evidence because that is an executive act. What she did with Kemp was not to give a list for the purposes of writing a journalistic article.

She did it in furtherance of the conspiracy that we knew was being hatched from the end of ‘92 by the First and Second Applicants. It isn’t something that is unconnected and not germane to their discussions. On her own admissions on the probabilities on the high degree of improbability found to exist by the Judge President, the admissions that we have here, the improbabilities that came out on her questioning in cross examination by members of the Committee.

So that although it is a theoretical possibility, it just doesn’t fit with the facts as a whole in our respectful submission. The facts are that she was in the thick of it.

MR WILSON: I’m not sure just how much this may effect it, but she is unlikely to have given that list of nineteen to Mr Hartzenberg is she. Where it contained the names of journalists, the names of Judge Goldstone whom she wanted to write an article about because of the Group Areas Act. It was not something that she would have wanted Mr Hartzenberg to raise in Parliament.

MR BIZOS: There is a high degree of probability and we would concede that. But it was the hard-core that she really wanted to and that she asked, she asked on her own admission that a description of the houses of the ANC and SACP people on the list. Now, and this is what Kemp gave her, so she wasn’t an idle, passive bystander, she was by the looks of things, having regard to the importance of the list and the reconnoitring, she was equally involved with the other two.

MS KHAMPEPE: Mr Bizos, what do you make of the other reason which was given during the criminal trial, that the list was acquired allegedly for writing a book with Ms Ada, I think it’s Ada Parker?

MR BIZOS: Yes. Well, the "voluminous evidence" that was put before the Committee in tracts in the Patriot, and some of the publications of Ms Ada Parker whoever she may be, shows that she was a bird of a feather of Mrs Derby-Lewis in her political views which make McCarthy’s look quite a liberal philosophy but be that as it may, what we would submit is that it was not pursued here and we make this point in the written heads so that she hasn’t been forthcoming or consistent as to what the purposes of the list really was.

There is no clear evidence as to whether, what Mr Hartzenberg received. If he received anything at all, if he received anything at all but there’s certainly no clear evidence as to which of the lists he received.

ADV POTGIETER: Also even the list of nine Mr Bizos, unless I’m missing something, even that list, the usefulness of that to Mr Hartzenberg isn’t really available for, unless there’s something that we’ve missed in the testimony.

MR BIZOS: No, this is why I submit that if in fact anything was given to Mr Hartzenberg, on the assumption that she was a member of the conspiracy, she had to find a reason for the apparently conspiratorial meeting at the Rotunda, at the Johannesburg Station and having Mr Clark there adds to the probability and his evidence that it was done surreptitiously even for his eyes.

So, we submit that a smoke screen has been created by Mrs Derby-Lewis about a book, about journalistic purposes, about Hartzenberg, the real purpose of the

list is what is obvious and what she herself said in her statement, what Mr Derby-Lewis said in his statement and that it was a hit list. Subject to any other questions at this stage I will be coming back for the latter part of the argument and the admissibility of the statements, my learned friend Mr Malindi will take over Mr Chairman.

CHAIRPERSON: Yes Mr Malindi.

ARGUMENT BY MR MALINDI: Thank you Chairperson and members of the Committee. Chairperson, I will start at paragraph 6.5 where we make the following submission. The Applicants have not disclosed various co-conspirators to the plot. They have not disclosed the names of other people in the CP who discussed and decided with them that violence had become an option for the CP.

Chairperson, in the evidence of Mr Derby-Lewis himself, he states that many discussions were held by people on the right concerning actions to stop the Nationalist political cause and he further states that actions were being planned and put into operation and that evidence is to be found in FR Page 109.

Chairperson, the Applicants are expected to disclose all the people who were party to these discussions which we shall presume lead to their final decision that Chris Hani should be assassinated. That actions were being planned and put into operation is also stated in bundle A and their references in paragraph 6.5.1. And Chairperson this statement agrees to a large extent with what Mr Visser and Mr Edwin Clark told the Court when they gave evidence, especially what Mr Clark said about the fraternity that met at Mr Derby-Lewis’ house and other places and he refused to associate Mr Derby-Lewis directly with that fraternity.

MR NGOEPE: Mr Malindi sorry, but if those actions and plans had nothing to do with the killing of Mr Hani. If those actions and plans were actions to go hold protest rallies throughout South Africa, in Cape Town, in Pietersburg, they would not be connected with the killing of Mr Hani and they would not be a non disclosure, unless you can connect, you can make that connection.

MR MALINDI: Except Chairperson that in their evidence these were their actions and plans which motivated them to ultimately assassinate Chris Hani. They were actions and plans of preparation. They were preparing for war. Later in our submission we will be quoting Mr Derby-Lewis where he says, "the structures for war were in place", and from those preparations it follows then that they took a decision that Mr Hani should be assassinated is our submission. Chairperson, Mr Walus who claims to have been acting under orders failed to disclose that fact in his Amnesty Application under Clause 11(a) where it was relevant for him to state that he was acting under Mr Derby-Lewis’ orders and when asked by a member of the Committee Ms Khampepe why he omitted to mention that Mr Derby-Lewis ordered him to assassinate Mr Hani, he stated that he was not prepared to make a full disclosure in that regard in order to make it easier for Mr Derby-Lewis and the reference thereto is SR, Second Record, Page 279 which is not on our Heads.

CHAIRPERSON: What paragraph of your Heads are you dealing with?

MR MALINDI: Paragraph 6.5.2 Chairperson. An additional reference will be SR, Page 279.

CHAIRPERSON: Thank you.

MR MALINDI: Chairperson, the Applicants have relied on Exhibit A3, the Mobilisation Plan. As a CP document which was adopted in preparation of various forms of mobilisation, including armed resistance according to the witnesses, although we shall submit that that document does not go as far as mobilising for armed resistance.

And if it is their evidence that that was a document for preparation of war, then they ought to disclose members who belonged to various structures as stated in that document. And that is paragraph 6.5.3. Mr Bizos has already submitted the failure of the Applicants to disclose Mrs Derby-Lewis’ involvement and there are further references if they have not yet appeared in the section that Mr Bizos dealt with at 6.5.4 and 6.5.5.

Mr Bizos has also dealt with the non disclosure of the involvement of people like Mr Van Venter who provided the firearm and that is 6.5.6 of the Heads. And further submissions are being made in 6.5.7 that we dispute that Mr Venter handed the weapon over to Mrs du Randt on the 10th March 1993 but that this weapon was handed over earlier than that date.

If we are right in our submission that the weapon was obtained earlier than that date, then this will tend to show that Mr Van Venter’s involvement suggests knowledge that the weapon was being obtained for this purpose.

MR WILSON: Sorry, I don’t quite understand that. Why does it indicate merely that he handed it over three weeks before?

MR MALINDI: Chairperson, Mr Venter’s evidence is that he moved into Krugersdorp on the 1st March and therefore he could not have provided a weapon to Mr Derby-Lewis earlier than that date. If we are right that indeed he did provide the weapon earlier than that date then he was running weapons and guns into Krugersdorp. The question is why was Mr Venter running guns into Krugersdorp earlier than the 1st March?

CHAIRPERSON: You must clearly only be confining yourself, I understand, to this particular weapon, isn’t it?

MR MALINDI: It is so Chairperson. Our submission is therefore that if he did provide this weapon before the 1st March or before the 10th March, he must have had knowledge at least of the reason for Mr Derby-Lewis wanting to acquire a weapon. So there was communication between the Applicant Mr Derby-Lewis and Mr Van Venter which were not disclosed to the Committee.

ADV POTGIETER: That’s if the gun was delivered in February. That would indicate that there was communication and it was not only because of the fact that Mr Venter now happens to be in Krugersdorp and he meets by chance, or not by chance but he meets because of now living in Krugersdorp, he meets with Mr Derby-Lewis and this conversation starts up quite spontaneously.

MR MALINDI: Indeed Chairperson, we do make a submission that it was not coincidental that this weapon was passed on to Mr Walus, that it was specifically obtained for that purpose of assassination. Chairperson at 6.5.8 we deal with the difficulty in which Mr Venter found himself in trying to explain the various dates which appear on the statement he made to the police and we submit that his evidence that the weapon was discussed on the 10th March and provided on that date should not be accepted. And the submission has already

MR WILSON: What value do you think that we should give to the documents as to Mr Derby-Lewis’ extensions, his claims which would show that he was absent at the earlier date?

MR MALINDI: Chairperson if I remember well, at the last hearing, Mr Bizos did indicate that documents which will be of value to the Committee will be the register of the attendance at the meetings of the President’s Council and we might add that the

register of attendance at the meetings of the City Council in Krugersdorp will be of more value than the claim forms that are before the Committee because they do not indicate attendance, they indicate that the President’s Council or the City Council may have been in session and the claims form for travel, Chairperson need to be corroborated by proof of attendance.

CHAIRPERSON: Yes but there’s no evidence against it. There’s a document which says that he made these claims. On the face of it, the document appears to be an official document and there are no other documents which throw any light or which were contrary to what he said in these documents.

MR MALINDI: Chairperson, the documents were filled in by Mr Derby-Lewis and there’s evidence by witnesses who came before the Committee to support him and they have given unsatisfactory evidence as to when this weapon or the discussions took place. It casts a shadow of doubt as to Mr Derby-Lewis’ attendance of the President’s Council between the 22nd February 1993 and early March, if I remember the dates well.

CHAIRPERSON: As far as the register of attendance of the Krugersdorp Municipality Council meeting, I understand Mr Derby-Lewis was not a member of the Council.

MR MALINDI: Yes indeed Chairperson.

CHAIRPERSON: He merely attended as an interested ratepayer or citizen and he wouldn’t be expected to sign a register, as Councillors would.

MR MALINDI: Yes indeed Chairperson. I made a mistake, I assumed that he would sign a register but he would have attended and being in the public gallery with Mr Du Randt, they wouldn’t have signed the register.

CHAIRPERSON: Yes.

MR MALINDI: Chairperson, in respect of Mr Clark, it is submitted that he withheld information as to what was on his hard drive of his computer. He did not disclose who were members of their fraternity and he specifically refused to associate Mr Derby-Lewis with any of the discussions of this fraternity which was plotting all these acts and we therefore submit that his evidence should not be accepted, in as far as it was tended to support Mr Derby-Lewis.

At 6.5., 6.6 Chairperson, we make the point that Mr Derby-Lewis attempted to minimise his role in the planning and the execution of the assassination. Chairperson, at 6.6.1, we state that ...[inaudible] on 24 April 1996 Walus had filled in Clause 9(a)(i) of his Application to read, "The Applicant acted alone in the planning and commission of this deed." Both Derby-Lewis and Walus’ amended responses to this Clause were changed in November 1996, to read that they jointly planned the assassination of Hani.

The changes in November 1996 and in particular, the addition that Chris Hani was a military target for his role as a Senior Commander of MK, were after thoughts in order to improve his chances of obtaining amnesty. He knew that this was an exaggeration especially that in his first Application which is Exhibit R7, he had rightly stated that Hani was a former MK Commander. Whereas

CHAIRPERSON: Tell me, what is the significance of the fact that there was this change between April and November, that he acted on his own and then subsequently in November they say that they acted together? The evidence that we’ve heard is that they acted together, what is the significance in this difference?

MR MALINDI: Chairperson, it shows that the Applicants have not been consistent. In April 1996 when they filled their Application forms, they were aware of the facts.

CHAIRPERSON: Well are they not entitled to correct it?

MR MALINDI: Chairperson they are entitled to correct it but their corrections tend to show a deliberate attempt on the part of the Applicants to do things either in this instance, in order to lessen Mr Derby-Lewis’ role in the whole plot.

CHAIRPERSON: But they openly making it patently clear to anybody that they’ve said something, they know that if they are going to change it in November they will be criticised for contradicting what they had said and yet they make it quite clear that look hear, we said this in April, in November we now want to say that the two of us acted together. So what is sinister about that?

MR MALINDI: Chairperson it may go to credibility of the Applicants but also when we later deal with the evidence of Mr Walus who, despite the change in the November page that they acted jointly, then in evidence changed his version to consistently try to say he was acting under orders. There’s an inconsistency from April ‘96 to November ‘96 to when they give evidence before this Committee.

MR NGOEPE: You could argue that they changed but what they initially said could not have been a mistake. It’s one thing to, well, everybody are entitled to make mistakes and then of course correct them, but what they said earlier on, right from the beginning, whatever they said, which they sought to change later, could not have been a mistake because it is in respect of something, the facts are on that particular thing were in their knowledge.

MR MALINDI: The facts were in their knowledge Chairperson, except that in April when Mr Walus said he was acting alone, he was wrong at that stage, so although he

MR NGOEPE: But could that have been a genuine mistake?

MR MALINDI: It wasn’t a genuine mistake Chairperson.

MR NGOEPE: It’s the point I’m making.

MS KHAMPEPE: You will remember Mr Malindi that the reason that was advanced by Mr Walus for the change was that there was no legal representation. Just to latch on on what my colleague has just said Chair that it couldn’t have been a mistake. These were facts that were within their knowledge all the time.

MR MALINDI: Yes, thanks Chairperson. Chairperson, on Page 25, Paragraph 7, we deal with the question as to whether the Applicants were acting on behalf of or in support of the Conservative Party. At 7.2, we make the submission that they could not have been acting on behalf of the Conservative Party because leaders of the Conservative Party, including Dr Hartzenberg who gave evidence before the Committee clearly states the policy of the Conservative Party which is that the CP had no policy to use violence to achieve it’s political objectives.

And Mr Bizos has dealt already with those submissions of and statements made by various political leaders of the Conservative Party. Chairperson, at 7.4, I would like to add the following references, Second Record 791, 796, 799 and 811. And at 7.5 I would like to add the reference Second Record 805 - 806 which is a reference to where Dr Hartzenberg said the CP was in 1993 committed to peaceful solutions and the CP is still committed to peaceful solutions.

And at 7.12 which is on Page 27 on to Page 28, if I may correct the following references, it’s R1 Volume 9 and at 7.13 it’s Volume 9 again, R1 Volume 9, 7.14 R1 Volume 8. Chairperson at 7.3 we respond to the reliance of the Applicants on various statements made by their leaders which also have already been dealt with by Mr Bizos and the submission that we make in relation to their reliance on his statements is that when Mr Du Plessis spoke in Parliament against people who interpret or interpreted Dr Treunicht’s speeches as speeches calling for war and our submission being that that speech in Parliament was made after many of these speeches by the CP leaders were made and we submit that that Parliamentary speech cancels any notion that ...[inaudible] Monument speeches and the Voortrekker Monument speeches were a call to violence.

And Chairperson on Page 34, 7.3.15, we make a point that if the Applicants are relying on Exhibit A3, which was only adopted on the 26th March 1993 then they were very much ahead of the CP in that they had taken a decision to assassinate Chris Hani long before the adoption of this document and we also dispute that this document, at the time of it’s adoption meant that the CP had moved over to violence.

We submit that the options that were still available to the CP were participating in elections or in elections in negotiations with other parties at that time. Still on Page 34 at 7.3.17, Chairperson I would like to correct the reference there where it says 9 Record, that will be Second Record of this hearing.

MR NGOEPE: Mr Malindi, sorry to interrupt you, this point is being repeated again that the CP was involved in negotiations at the time around March/April 1993. I’m not so sure if that was the case.

MR MALINDI: Chairperson

MR NGOEPE: The multi party talks, didn’t they commence more or less around May 1993? And as far as I can recall, the CP was not there.

MR MALINDI: Chairperson, Dr Hartzenberg has admitted before this Committee and I will find a reference that they were involved in multi party forum negotiations, the Applicant Mr Derby-Lewis has considered that point and Mrs Derby-Lewis has also considered that point. That they were involved in negotiations at the time.

At Page 26 Chairperson, 7.5, Dr Hartzenberg was giving this interview on the 20th April 1993, the day after Chris Hani had been, the day after the funeral and he said that the CP was still involved in negotiations, the multi party conference negotiations which were being held and reference is at the paragraph itself.

Chairperson at Page 36 which is acting in the course and scope of duties and within the scope or express or implied authority, Chairperson if our submission is correct that the Applicants did not act on behalf of the CP, then this submission becomes superfluous but in their Heads they do contend that they were acting within the course and scope of their duties and Mr Bizos has already made a submission that in order for the Applicants to rely on course and scope they should be able to state what duties, what tasks had been given to them by the CP within which they claim to have assassinated Chris Hani.

And it is our submission therefore that in as far as they tried to rely on this paragraph, they cannot succeed because they have failed to specify their duties within which they were acting. In fact the CP has discounted having ever planned, commanded or ordered any of the activities in relation to violence and specifically in relation to the assassination of political leaders. And this fact was made clear when Koos Botha was told in Parliament that he was not acting on behalf of the CP and therefore they can’t rely on this paragraph.

At Page 38 Chairperson, paragraph 9, we have been alerted to the fact that Section 20, Sub 2, Paragraph F now excludes any person who is mentioned in Section 20 Sub 2(a). Chairperson, our submission therefore is that it is clear that a person who is a member of an organisation as the Applicants claim, as Mr Derby-Lewis clearly is and as Mr Walus claims he is, can no longer rely on Paragraph F to say there were reasonable grounds which made them believe that they were acting within their express or implied authority.

ADV POTGIETER: It appears Mr Malindi, I’m sorry, it appears that 22(d), which is covered by F, also refers to a member but it appears as if that that infers to somebody who is an official who holds some or other position who has some or other clear duty and not an ordinary member who just happens to be a member of the organisation, as to 2(a) seems to provide for.

So it looks to me as if it’s only a very clearly defined group of members who would qualify for the grounds in F and not just any member, I mean you must establish some duty, you must indicate that what you are doing. If one looks at it reasonably, could have been interpreted as falling within your clear duties that you have.

So it seems to me as if that is the sort of situation that is catered for in F, only those kind of members.

MR MALINDI: Indeed so Chairperson. In fact under cross examination Mr Derby-Lewis was specifically asked about the tasks, the duties that were given to him as a leader within the CP which gave him the authority to do so and his responses throughout were, as a leader, I have the authority and I don’t have to consult anyone and we dispute that Chairperson and we say, as a leader of the CP, organisations designate functions to it’s officials, spokesperson for justice, secretaries to organise and those functions are clearly designated to officials and no function designated to Mr Derby-Lewis goes anywhere near a suggestion that he could take a decision on his own or with Mr Walus or with Mrs Derby-Lewis to plan and execute a serious act as assassinations.

Dr Hartzenberg himself testified that if the CP were to consider such a serious step as from moving from negotiations, participating in elections and adopting violence that that would have been an issue for discussion within the party and that was also Mrs Derby-Lewis’ evidence during the trial that the party had not moved over to violence and if the party were to move over to violence, the party would have had to discuss it, it was a contingency plan.

Chairperson, at Page 40, Paragraph 10, the question whether the act committed by the Applicants is an act associated with a political objective, Chairperson, the act envisages that if an act is committed, it will be for the benefit of a political organisation or liberation movement.

We have here an instance where the party says the act was not in pursuance of it’s political objective. It is our submission therefore Chairperson that even if the Applicants and their co-conspirators which were not disclosed had a political objective in their minds the Conservative Party was not aware that such an act was going to be committed on their behalf, so the act could not have been committed in the eyes of the CP with an objective of advancing it’s political objectives.

MR NGOEPE: Why should we determine that only through the eyes of the CP?

MR MALINDI: Because Chairperson this act had to be executed on behalf of the CP and it was not executed on behalf of the CP and as for the CP, it was not aware that anything was being done in order to achieve it’s political objectives and therefore the act is divorced from the objective if the party did not sanction it.

CHAIRPERSON: Not sanction it prior to the commission of the offence?

MR MALINDI: And did not approve it after the commission of the offence as well.

MR NGOEPE: Yes, but a political party could have approved of something which we would nevertheless possibly could still find that it is not an act associated with political objective. But you see, the criteria, your argument come, ventures close to adding a further criteria under Sub 3, Sub Section 3, that the act as such must be viewed by the political party, in the eyes of the political party concerned, it must be seen as an act associated with a political objective.

MR MALINDI: Chairperson, my submission is that the act envisages that an act to be associated with a political objective, it must be an act committed with a view of achieving that political objective.

CHAIRPERSON: Correct.

MR MALINDI: And in this instance we have

MR NGOEPE: The political objective as seen by the perpetrator?

MR MALINDI: It may have been a political objective as seen by the perpetrator but was it for the benefit of the political party and the political party says no. Although Dr Hartzenberg tried to say that if a Christmas gift was presented to him like that he would have accepted it and so on, he was

MR NGOEPE: That could be a different requirement. That touches on the area of authorisation and the like. But you see, we determine from, objectively speaking, we are to apply the criteria here as set out under 3. We look at a particular conduct objectively. Leave aside other requirements, leave aside the question whether they had authority from the party, we leave that aside.

We look at the nature of the incident and we look at it objectively and decide whether or not it is an act associated with the political objective.

MR MALINDI: Except that Chairperson if I may read Sub paragraph 2,

"That act, in order to be associated with a political objective must have been advised, planned directed, commanded, ordered by a political organisation, publicly known political organisation."

This was an act planned and executed by a group of individuals, the Applicants and their co-conspirators.

ADV POTGIETER: Let me just intervene, Mr Malindi does that submission not speak to Section 22(a) rather than to the criteria, the knowledge of the political party. Isn’t it more germane to that 2(a), to that requirement, rather than the criteria in 3?

MR MALINDI: Well Chairperson also under Sub paragraph 3(e), the act or mission must have been in the execution of an order of or on behalf of or with the approval of the organisation.

MS KHAMPEPE: But Mr Malindi I think, my problem is, does the fact that the organisation is not aware of what an Applicant was about to do render that not as an act which is associated with a political objective if according to the Applicant, that act was seen as furthering the cause of that political organisation?

MR MALINDI: Chairperson, such an individual who acts in the name of the organisation must have had authority or must have been ordered by that publicly known organisation to act in that manner, to advance it’s political objectives.

CHAIRPERSON: What happens if he, in his own judgment decided that a particular course of conduct, which he’s about to follow, will in his opinion be in the interest of his organisation? Don’t you take that into account? Whether it is approved subsequently by his organisation, whether he had prior, or the organisation had prior knowledge of it, is a different consideration.

The first consideration is if he, in his mind, believes that the act I’m about to perpetrate will be in the interest of my organisation as I see it.

MR MALINDI: Chairperson, in this instance, firstly, with the Second Applicant, Mr Derby-Lewis, we are dealing with a person who was an executive member of the organisation. We will submit that he was not the kind of person or the person of his standing within the political organisation would not have sat and contemplated what act would have been to the benefit of his organisation.

He should known what he ought to do as a leader of the CP to advance his political objectives.

MR NGOEPE: I think you have helped me Mr Malindi.

MR MALINDI: Chairperson

MR NGOEPE: No, I was about to say that you have helped me with regards to the point that I raised because as particularly when you look at 33(e), that you have just referred to.

MR MALINDI: Yes.

MR NGOEPE: It would seem that, no matter on the face of it, how political the act may be, if it was not done on the order or on behalf of a political organisation, no matter how objectively you may look at it, it will never qualify to be an act associated with political objective.

MR MALINDI: Yes, indeed Chairperson, that is the submission that we have been attempting to put across to the Committee. That an individual may totally believe that their act is an advancement of a political objective. It may be so but in this instance we submit that there has to be separation where an act is a publicly known political organisation is not aware that such a person is purporting to be acting on his behalf.

Chairperson, further submissions are made on Paragraph 10 and at Paragraph 10.3(iii) which is on Page 41, I would like to add at the bottom that Mr Clark also believes that Hani, being an anti Christ would have been a major reason why he was assassinated or he would assassinate him, I don’t remember the evidence well but the emphasis was on the anti Christ.

And then Chairperson, the submission therefore on this paragraph is already made and some of the Sections under Paragraph F are dealt with separately like proportionality which Mr Bizos is going to deal with and acting under orders which follows thereafter which is Paragraph 11. But Sub Paragraph 3, taken as a whole and taking into account Paragraph 11 and the proportionality submission which my learned friend Mr Bizos is going to make is such that, and that submission is made on Page 42 that when the criteria in terms of Section 20 Sub Paragraph 3 are taken as a whole, there is doubt that the act is associated with a political objective and therefore the Applicants have failed to satisfy the Committee as such.

Under these paragraphs Chairperson, our submission is that there are so many things that make it difficult to conclude that they have satisfied Sub Paragraph 3. There are elements of the anti Christ and other elements which should be taken into account, elements of gravity of the act and so on and even though one of those topics in itself does not go to the extent of excluding a political association, we would submit that, taken together, they will indicate that this act was not associated with a political objective.

MR WILSON: In this context, I’m afraid I haven’t got the reference here at the moment. My recollection is that Mr Hartzenberg in seeking to excuse the conduct, referred to the death threats that had been made to Mr Derby-Lewis and that this may have been part of the emotional stress that caused him to do this. Is this one of the factors that we take into account here?

MR MALINDI: Chairperson there may have been death threats against Mr Derby-Lewis and if he acted, if that has motivated him, then he was acting on his own accord and not on behalf of the Conservative Party, for personal reasons.

MS KHAMPEPE: And according to his evidence Mr Malindi, those death threats I think were made between 1987 and 1988. There was no reference then there were any death threats made in the ‘90’s.

MR MALINDI: Yes, they are separated from the execution of this act in time and place.

CHAIRPERSON: Yes, carry on.

MR MALINDI: Chairperson, under Paragraph 11, Mr Walus contends that he was acting under orders and my learned friend Mr Bizos has already made submissions that Mr Walus essentially changed the manner in which he is going to conduct his evidence in his Application for Amnesty after he had seen the Max Du Preez TRC Special Report and decided that he would now consistently claim that he was acting under orders.

Chairperson at 11.1, if I may read this section out. In his Application Mr Walus initially stated that,

"The Applicant acted alone in the planning and the commission of this deed."

.2, when Walus made this statement he was fully aware of the facts surrounding the assassination of Chris Hani. He was trying to minimise the role played by Derby-Lewis, also evidenced in Derby-Lewis’ Application and his evidence on Record. His preparedness to protect Mr Derby-Lewis is also recorded in R4, Page 306.

His answer under this paragraph was subsequently changed on 13 November 1996 to read as follows,

"In pursuance of the instructions of Clive John Derby-Lewis, a senior member of the Conservative Party, prior to 6 April 1993 we, Clive John Derby-Lewis and I jointly planned to assassinate Chris Hani. On 6 April 1993 Clive John Derby-Lewis handed me an unlicensed firearm for the purpose of assassinating Chris Hani."

Chairperson, at 11.4, we make the submission that by the above statement Walus is trying to marry the suggestion that he was acting under instructions and that they acted jointly. There obviously is a contradiction in these statements, especially in view of the fact that Derby-Lewis in his amended response to Paragraph 9(a)(i) does not mention having given instructions to Walus.

And Chairperson, in November both of them had access to legal representation and therefore if one looks at the body of the Application of Mr Derby-Lewis one will observe that even after the lawyers had come in to assist him, he consistently indicated in his Application that he was a co-conspirator, he was an equal to Clive Derby-Lewis and not a foot soldier acting under orders.

And that submission is made at 11.5. The Applicant was moved by his personal understanding of what was happening in the country and he "vowed to do something to try and stop the handover to communist rule", and there’s a reference. Under paragraph 10(b) of his Application, Walus clearly shows an understanding of the political developments in the country and clearly identifies himself with the political objective of the CP or that of Derby-Lewis, to hold the coming to power of the communists.

The reading of Paragraph 11(a) of his Application clearly shows an understanding of Conservative Party politics and his association therewith. In his evidence he did not try to limit his knowledge of the Conservative Party politics but confirmed such understanding. His understanding of these politics and the objectives of the CP are those of Mr Derby-Lewis is not that of a person whose interest is only to carry out orders or instructions of the leadership.

Mr Walus told the investigation officer that he and Clive planned the murder together. To a question by Judge Ngoepe, Walus conceded or agreed that he participated in the killing of Hani because he was driven by his immense hatred of the communist regime and his previous terrible experiences under communism in Poland.

After it had been put to Walus that he was tailoring his evidence to accord with that, that submission has already been made Chairperson. At 11.12, when the evidence of Mr Derby-Lewis was read to Walus and there’s a reference, he admitted the following:

"That he and Derby-Lewis were discussing as friends, they were discussing as like-minded persons in terms of politics that in February 1993 they jointly agreed on the assassination. That they talked as colleagues, and as co-supporters in every aspect. That they were talking privately between the two of them, that he, Walus volunteered to execute their joint decision. That he, Walus was not under any pressure to do that and that Derby-Lewis had no control over him in terms of the execution."

And at this point Chairperson, the evidence is that Mr Walus was alone when he executed this act and if he was under any compulsion it did not apply for a very long period he was conducting reconnaisances by himself. Derby-Lewis was not standing by to see that he does execute his orders and therefore his claim that he was acting under orders should not be accepted. He could have withdrawn from this plot at any stage. He was not under pressure from Mr Derby-Lewis nor from the CP.

It is submitted that Walus’ evidence at Page 899, 904 and 914 of the First Record that he acted under instructions is contradictory to that of Mr Derby-Lewis and to what he says in his own Application and has testified to at Pages 71 to 78 of the Second Record.

Mr Walus disputes that he could have quoted Langenhoven during the interrogation but what he admits in his evidence or what he states in his evidence it’s that he knows that Langenhoven wrote Die Stem which tends to show that Mr Walus is a person who has deep knowledge of the Afrikaner history, the struggle of the CP and he was not an ordinary person acting under orders but was a person committed to the cause of the CP.

MR WILSON: I understood, we were told that we should look at the disks and it would show that it was not him who referred to Langenhoven, is that so?

MR MALINDI: Chairperson it is so and Mr Bizos will deal with admissibility separately of these statements, but what I’m, the point I’m making is that in his evidence, he does say all he knows about Langenhoven is that he wrote Die Stem and I’m saying his knowledge of that mere fact that Langenhoven wrote Die Stem indicates that he may have read Langenhoven or knows the Afrikaner history.

Chairperson, Mr Derby-Lewis testified

MR WILSON: Before you go on, can I ask you, you refer in Paragraph 11.12, when the evidence of Mr Derby-Lewis was read to Walus TRC FR, he admitted the following, now are these quotations from Mr Walus?

MR MALINDI: Chairperson, those are not quotations, they are points that I extracted from his admissions. What Mr Bizos did

MR WILSON: Well my problem is that in my Record Page 777 is the evidence of Derby-Lewis.

MR MALINDI: Yes Chairperson and the evidence of Mr Walus, I think would be in Second Record, Page 71 to 78, at the bottom of 11.12.8, the references.

MR WILSON: So these are references to what Derby-Lewis said at those pages?

CHAIRPERSON: Yes.

MR WILSON: Right, thank you.

MR MALINDI: Chairperson, finally, on my section, Mr Derby-Lewis stated in his Application and in his evidence that after he had had a dream, he thought it better to delay the execution of Chris Hani and Mr Walus, in his evidence says that was not conveyed to him and he went ahead with the execution and Mr Walus was always

prepared and ready to go ahead with the execution although Mr Derby-Lewis claims to have had reservations at another stage.

And therefore Chairperson my submission is that Mr Walus was not acting under orders, he was acting as a co-conspirator, as an equal. Chairperson I will handover back to Mr Bizos.

CHAIRPERSON: Mr Bizos will it be convenient if we take a short adjournment at this stage?

MR BIZOS: Yes Mr Chairman. Let me assure you Mr Chairman that, not only will I finish but I will leave approximately half an hour for a reply if need be. The main issues have been canvassed and I will not be very long.

CHAIRPERSON: You may in addressing us, consider, if you have not already done it, in relation to the criteria laid down in Sub Section 3, whether each of these criteria have to be satisfied or whether they have to be treated collectively. If one of the criteria is not satisfied, does that mean that there has been non compliance with the entire Sub Section?

MR BIZOS: I will make submissions. I’ve got the Act right in front of me and I will make submissions.

CHAIRPERSON: We will take a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes Mr Bizos?

ARGUMENT BY MR BIZOS: (cont)

Thank you. Mr Chairman, Counsel for the Applicants were asked whether they brought their Application under 22(a) and it was said by one them, yes, and I assume that the other agreed. Now, and then attention was drawn to the fact that (a), 2(a) is not referred to in 2(f). We are concerned Mr Chairman as to whether an Applicant has to confine him or herself to a particular Sub Section and we are anxious that the Committee, with respect should view the matter with due consideration without relying on the apparent concession of Counsel for the Applicants.

CHAIRPERSON: Take into account the Act as a whole?

MR BIZOS: The Act as a whole and particularly (d) and particularly (d), speaking for myself, I find it difficult to see a logical reason for the deletion of (a). If I had had the time, I would have gone to Hansard in the hope of some, but it doesn’t matter, but what we do ask, Mr Chairman is that on the question of fact, consideration should be given whether or not there were any reasonable grounds that either of the two Applicants had for believing that they were acting in the scope and course of their membership of the Conservative Party.

To consider it and come to a strong finding we would submit that there were no such reasonable grounds. Because it was canvassed and may I recall to the Committee’s memory that there were questions about why the leadership wasn’t asked, why no steps were taken as to whether assassination would be tolerated or authorised or whether it was the business of the CP.

And what we want to submit on the facts in relation to that, that a position of a leader such as the Second Applicant, Mr Derby-Lewis, the position of reasonable grounds of belief, surely must be different where one has a cadre in the bush who has to make a decision, who is operating underground, that has no lines of communication with his leadership.

He may say well, I was given an order to infiltrate into the country, a policeman stood in front of me and I decided that, in the furtherance of my liberation movements actions I had to shoot him otherwise I would be shot or I would be arrested and sentenced to a long term of imprisonment.

The test to be on the facts, it’s not a different Law, it’s the test to be applied on the state of mind of a person who is a member of an organisation that has, contrary to the CP’s position, adopted violence as an option and where there are people on the ground who cannot communicate properly and take instructions in relation to specific events and they may sometimes go contrary to the policy of their organisation.

But if they reasonably believe that that was within their mandate, then they would be entitled to amnesty but they start off on a different premise. They had a mandate to commit acts of violence by their organisations, given to them by their leaders who have taken responsibility, who had publicly stated that violence, there comes a time in the life of any nation where there is no option left but violence and then publicly declare that this is the policy of the organisation.

Now, a person that commits that act, there may be an enquiry as to whether or not, even though it may have fallen outside the policy of the organisation whether he may reasonably have believed that it was within the scope, course and scope of his, the task that had been appointed to him or her. Here we have no policy of violence by the CP, no task bestowed upon either of the Applicants to perform any act of violence and most certainly not assassination of a high profile political leader.

As we submitted yesterday, is a, makes a difference. Let me not be misunderstood Mr Chairman, we are not saying that the life of a leader is less or more dear to the people involved than the most lowly and unlettered individual who finds himself in the struggle. But what we do say is that the consequences of eliminating a high profile leader are so materially different to any other act and where we have a case where they say that they intended to create chaos when we have the leader of their party saying to Mr Venter that they had a policy of non violence, we submit that that is a different situation all together.

Now in relation to the question put to me by the Judge presiding sir, what I want to say is that clearly, Sub Paragraph 3 of Section 20 must be cumulatively read. In our submission what it means is this, that even if an Applicant might satisfy one of the requirements, that does not entitle him to amnesty is he or she does not satisfy the other requirements. And it can be illustrated in a very simple way. That there was full disclosure.

If you come here and you say, to take the extreme case, I did it with others, but out of loyalty to them I refuse to identify them or I refuse to tell you who gave me the order from above because he is my political leader and I don’t want to implicate him, he hasn’t applied for amnesty, therefore I am not speaking.

Well, even though his act may be proportional or it may have been with an objective within the ambit of the act, that person must be refused amnesty in our respectful submission because he has not complied with one of the essential elements. Similarly, if he does not show that he did not have authority, we believe that that is the end of the matter, even though he may have satisfied other requirements.

Similarly even if all other criteria are satisfied, if it is so grossly inappropriate and disproportional to their act that it was a reaction to and if it was to create chaos in which hundreds, if not thousands of people were to be killed and which on their own admission was going to lead up to a race war. Let us just examine their own evidence, we don’t have to speculate in this case. Their own evidence killing Hani would have induced black people in the country to turn and kill whites.

The whites would have been so disgusted with F W De Klerk’s Government that they would appeal to the Security Forces to take over and hand over the staff of office to the right. Now that is an act which most certainly doesn’t fall into any of the Sub Sections of Sub Section 3 and particularly the relationship between the act and the political objective pursued and in particular, the directness and proximity of the relationship of proportionality of the act, omission or offence to the objectives pursued.

If we go to (A), the motive, can one in a country which has so many hues of colour, so many religious denominations, so many cultural and linguistic groups, think of anything worse that any human being could commit in order to induce a race war in South Africa. That black people must first kill white people and white people must go out and kill lots of black people so that law and order is not there and a crises is created.

Mr Chairman, you have heard the evidence of Mr Jeremy Cronin, that had it not been for the leadership of Mr Nelson Mandela, Mr ...[inaudible] and others to calm the incensed majority of the people of South Africa. We were on the brink of a race war but it was avoided, no fault to the two Applicants. So that those are the submissions that we make on the facts and the proportionality of the act, of the objective to be pursued, I am merely, Mr Chairman, I don’t want to read it out, I have given the main submissions, they are set out on paper, could I ask you to turn to Page 46 and add the, where we say, [Clause 10 (a) and (b)] and not only (b) Mr Chairman on Page 46, the third line - Bundle, at the end of that paragraph, Mr Chairman, at the end of 12.2, at the end of 12.1, just before 12.2, would you please add, Bundle A which are the Applications, Page 7, second last paragraph, Bundle A, Page 8, third paragraph. Those references refer to Mr Walus, Mr Chairman.

And referring to Mr Derby-Lewis, Bundle A, Page 24, top paragraph TRC FR, that’s the Record of these proceedings, First Record, Page 897 TRC FR Page 121, last two lines. And if we could go to 12.2 Mr Chairman. Do you want me to repeat that Mr Chairman, the last reference? The last reference is TRC FR Page 121, last two lines. And then reference as to be added at the bottom of paragraph 12.2, TRC FR, Page 194; Page 787 TRC SR 580 - 60, 58, I beg your pardon, 58 - 60; Page 805 and Pages 442 - 6 and Pages 449 - 50. References to the factual submission made in 12.3 Mr Chairman. TRC SR Page 781. On top of page 47, at the end of paragraph 12.5.1 TRC SR Page 781 and Page 805. At the end of 12.5.2 TRC SR Page 795. After 12.5.3 TRC SR Page 799.

On top of Page 48 Mr Chairman TRC SR Page 832 to 833.

CHAIRPERSON: That reference does appear at Paragraph 12.6?

MR BIZOS: Oh yes, I’m sorry, yes, it does. It covers both, yes, thank you. We didn’t want to leave any paragraph unreferenced. The Committee is entitled to that assistance Mr Chairman.

CHAIRPERSON: Thank you.

MR BIZOS: Mr Chairman, I now want to turn to the question of the admissibility of the R4 statements. The submissions are set out in full. Their references to the statements and to the evidence that has been given and the responses of the witnesses that gave evidence and whose statements were put to them.

The net result of it Mr Chairman is, that between Pages 50 and 68 of the Heads of Argument we set this out. Counsel for the Applicants had these Heads of Argument from Wednesday morning, certainly their Attorney by Wednesday morning, they say that they got it on Thursday. Be that as it may, we have heard no argument or submission in relation to the Law or the correctness of the fact that we have set out on these pages.

Unless the members of the Committee have any questions to put to us in relation to this, I do not propose dealing with it on the basis that no issue has been joined on it and above all there was a ruling in relation to the admissibility when the matter was argued which we quote in the Heads of Argument for the convenience of the Committee and the effect of the ruling was that it’s not a question of admissibility but a question of weight.

Now, what we submit, that on the matters upon which we rely on these statements, there have been answers from Mr and Mrs Derby-Lewis and Mr Walus to the effect, and the references are there, that they did not tell any, they were not forced to tell any untruths, either as a result of violence, threats or trickery. On the contrary, most of the evidence relates to how sympathetic the police were to them, how, if they were bluffed, they say that they were bluffed, they said that they actually have sympathy for them and for the Afrikaner cause and that one of them at least had some contact with someone else and that he was an agent for an organisation. But all that means nothing more than this, that if they did get their confidence it was because of how good they were to them. There has been, and we deal with each one of the original complaints, which are negative by other evidence, for instance that the police who treated Mr Derby-Lewis, but he wrote a letter thanking them, how wonderful they are, they were and how wonderful they had treated them.

Mrs Derby-Lewis expressing a desire that when she comes out and she would want to join the police on the basis that there would of course not be substantial changes. Now, and Mr Walus, when asked, before the adjournment you will recall Mr Chairman, what was his real complaint about the conduct of the police and did they force him to make any of the statements, he said he never made any statements, they were just friendly chats that he had with the police.

Well these friendly chats have been reduced into an Affidavit by Mr Deetliefs, they have been, tapes have been made available. There were 21 of them, they have been in the possession of the legal representatives of the Applicant for a very long time. You heard Mr Chairman the complaints, the complaints relate as to who mentioned Langenhoven and one or two other comparatively minor matters.

There has been no attempt to dispel the suggestions coming from their own clients that they spoke the truth in their statements, that they did so because they trusted the police. It is perhaps unfortunate from their point of view that the docket was made available to us in order to expose their lack of honesty and their full disclosure in this. But that’s no ground for excluding the evidence.

Mr Chairman, we have not had an opportunity of viewing the snippets of the tapes that were mentioned by Counsel for the First Applicant. We would like, we didn’t want to ask for adjournments and to add to the troubles of the Committee and ourselves in relation to this Application. We would like leave Mr Chairman, upon adjournment to view those three matters because it may be nothing more than what happened in relation to Mrs Derby-Lewis’ statements, that they did not appear in the correct section of the tape but we found them somewhere else. So we would like to do that.

In relation to Mrs Derby-Lewis, the matter is much more strengthened in favour of our contention that her statements are admissible, that they were freely and voluntarily made and we ask the Committee to accept, unreservedly the evidence of Mr De Waal who angrily denied any suggestion that he had used any undue influence. The evidence admitted by Mrs Derby-Lewis, that arrangements were made to get her own doctor in, every one of her requests was complied with, including going to get money for her son and clothes and magazines and everything else.

We know that detention without trial, with a great amount of justification has a very bad name in this country and many of us spent the better part of their lives condemning it. But the other factor to be taken into consideration is that by the time Mr and Mrs Derby-Lewis were put under Section 29 of the Security Act, it was a completely sanitised Act, which provided for judicial intervention before, after the period of ten days in which, at a time when fundamental human rights were being promoted in the country by the large political parties and liberation movements and that it was a completely different atmosphere.

The fact that they could not point to a single untruth, that they have told because of being held under interrogation. Of course, sleep deprivation, lengthy interrogation are matters upon which Judges and those involved with the Human Rights culture cannot approve of or condone and the country has set it’s face against that sort of practise.

But, the treatment metered out to these three persons was salutary in the circumstances. Having regard to what they were suspected of at the time, of committing an act which almost brought the country to the brink of war.

In conclusion, on Page 68, Mr Chairman, is that, we submit that the version by Mr and Mrs Derby-Lewis in evidence is both contradictory and improbable in material respects and should not be accepted. This is irrespective of the admissibility of their statements to the police. Derby-Lewis who did not give evidence in his trial, perjured himself in an Application to re-open the trial to prove his innocence. He relies on the support expressed to him when he was falsely holding out, that he was innocent and claimed that his arrest was a pretext to embarrass the Conservative Party. Without any apology to anyone, he now admits that he lied in that Application and he was indeed guilty of the murder that he committed.

His wife admits that she lied at the trial about how Walus obtained the list. She says that she did it to protect her husband. I don’t have to remind you that she said it must have been taken by mistake with piles of Die Patriot on their coffee table. If she was prepared to be deliberately untruthful on one of the main issues at the trial to protect her husband, why should she not lie to get him out of prison.

The improbability that the list was compiled for journalistic purposes could not be sustained during cross examination. She could not sustain the fanciful story in many respects. The contradictions between the two Applicants that were serious and too near the main issue to be ignored as suggested by their Counsel.

The attempt to make out a case of implied authority on the numerous articles and editorials in Die Patriot to which Mrs Derby-Lewis regularly contributed is a last ditch effort by those responsible for disseminating McCarthy-like propaganda, asking to be believed when they say they were influenced by that propaganda.

Derby-Lewis reducing his role to a minimum, that he still wanted to think it over and Walus belatedly saying that he was ordered when elsewhere they state that they acted as co-conspirators makes their evidence suspect and not worthy of belief. The criteria of their act are clear, they have not made full disclosure, they were not authorised, their object was to bring about a savage civil war of black against white for their poorly articulated purposes.

They were guided partly by religious bigotry, they make reference, the two of them and Mr Clark of Mr Hani being the anti Christ, hatred for blacks and democracy and in the case of Walus, hatred for Communism as a result of what happened in Poland, where he did nothing to put right but murdered in South Africa to cause chaos, to bring the right into power.

The life of a charismatic leader was cut short Mr Chairman, we do not contend that his life was more precious than any unlettered peasant nor worker in a factory nor indeed any other human being, whatever his or her position in the community. But as was pointed out by ...[inaudible] of JP in his Judgment on sentence, the accused performed an act of assassination on a person who had attained prominence in public affairs in South Africa, whose killing was likely to the knowledge of the accused, to cause far reaching, highly emotive reactions with very damaging serious consequences and extremely harmful effects for the entire society of South Africa.

The accused was a mature person with experience in public affairs, who must have realised what widespread reactions would follow on the assassination. We are here concerned with a case of assassination of a person prominent in public life by reason of the ideologies which he endorsed and because of the perception that his track record was unacceptable.

That sort of perception should be sought, I suppose Mr Chairman, might be entertained by thousands of people in this country for a variety of reasons, of many personages who have obtained prominence in public life. If assassination of that sort is perceived to be an acceptable option in this country the consequences may well be disastrous, chaos, anarchy, widespread bloodshed and damage to property is likely to result. The political consequences may also be fundamental.

I have given careful thought to the experiences of the Accused No. 1 in relation to Communism and the perception of both the accused in the role of the deceased. This factor may render the act of all accused understandable if it were not the killing, would have been utterly senseless.

Mr Chairman, I want to pause here for a moment. You are asked to let loose the two Applicants. You have seen and heard Mr Clark, one of the close disciples of Mr Derby-Lewis, completely lacking in judgment, a fanaticism which our country can do without. Having regard to the gravity of their offence, having regard to the fact that they wanted to create chaos in South Africa, having regard to the fact that neither of them expressly and by clear implication has shown that they have no respect for the provisions of the Constitution, that Mr Clark very clearly stated that he will never accept a unitary state in South Africa, which is a rejection of the Constitution.

We do not have before you Mr Chairman and members of the Committee people who have in the words of the preamble of the Act, that calls for democracy and peaceful co-existence for all South Africans irrespective of colour, race, class, belief or sex. Mr Derby-Lewis tells us, yes, let the blacks go to their homelands and they can exercise those rights, it would give us the better part of South Africa as our own Volkstad.

They do not believe in national unity or the reconstruction of a common society. The overall purpose of the Act is to reconcile the people of South Africa and for people to come and make full disclosure and although they are not obliged to say sorry, they must at least show that they have come to terms with the sort of society that the vast majority of the people in South Africa want.

The release of these two men will probably lead to another little clique and cabal being established somewhere in Krugersdorp and elsewhere, where the freedom of expression, freedom of movement and freedom of association given to even them, in terms of the Constitution will probably be abused in order to pursue their irrational and fanatical ideas that lead them to the assassination.

For all these reasons Mr Chairman we ask that the Committee refuse the Applications for Amnesty. Thank you Mr Chairman.

MR NGOEPE: Mr Bizos, sorry, in relation to what you’ve been saying for the last few minutes, I think, if we do find that, surely if we do find that the Applicants have met requirements for Amnesty, we would have to grant them Amnesty. In fact the Act says we have no discretion. It says we must. If it so happens that people like them happen to be let loose, it may very well be the folly of politicians who created a machinery through which such people can be let loose.

Surely if we find that they have met requirements, surely we must let them loose, even though we may feel that they may form a clique somewhere in Krugersdorp, we must.

MR BIZOS: Yes, I agree fully. I merely say that you take those factors into consideration in assessing, in assessing the sort of person that we have before you, as in relation to motive and in relation to proportionality. That even at this stage, that even at this stage, they wallow in pleasure in hearing Mr Clark insulting the Commission and I’m not saying for one moment that insulting the Commission is a ground for refusing amnesty but it’s evidence of their thinking processes at the time that they committed their act, their thinking processes in relation to motive, their thinking process in relation to the proportionality.

What I’m saying is that what they have shown themselves to be and what they are likely to do in the future having regard to their behaviour here throws light on what sort of persons made this decision to assassinate and for that reason they are not entitled to Amnesty. If they comply with the other provisions, if they were authorised, if they’ve made full disclosure, if it is found that it is not disproportionate, then obviously they are entitled to it.

MR NGOEPE: So you are saying no more than that these people have not met requirements for Amnesty and they shouldn’t get Amnesty. I have no problem with that.

MR BIZOS: And what I say is, that it’s not irrelevant to have regard, what after all this, what their present feelings is and going back and say, these are the sort of people that committed this act. I agree that, I agree with respect that, insofar as I have made, been understood to say that what I said as I peroration was a ground for refusing Amnesty that I do not advance it on that basis.

MR NGOEPE: Because it is important for us to dispel any notion that even though the Applicants may meet requirements for Amnesty, this Committee would have refused them Amnesty because of this and that and that, it is important to dispel that notion.

MR BIZOS: No, I would associate myself Mr Chairman fully with that and particularly, particularly about certain misconceptions that there are certain acts that no amnesty should be given at all. We do not subscribe to that, we do not make this submission but what we do say is that the character of the people that you have before you and the attitude which they have shown to the conduct of these proceedings throws light of what they were thinking about then.

MR NGOEPE: Thank you.

MR BIZOS: Thank you Mr Chairman.

CHAIRPERSON: These tapes that you mentioned in passing that you would like to view. Is that some arrangement that you will make as soon as we have adjourned here?

MR BIZOS: I beg your pardon?

CHAIRPERSON: The tapes, or those portions of the tapes that you would like to view.

MR BIZOS: Yes.

CHAIRPERSON: Obviously arrangements will have to be made elsewhere because there doesn’t seem to be that facility here.

MR BIZOS: No Mr Chairman. We will arrange with Counsel for the Committee, for the Commission to make them available to our instructing attorney and she can have the pleasure of looking at them and if there is anything there, we will submit a note within, is two weeks too much to ask for Mr Chairman?

CHAIRPERSON: I am expecting a response from Counsel, they haven’t had adequate time to go through your Heads of argument and they are going to deal with them and they’ve asked me for just a little time until next week to submit their written reply to what you have said.

MR BIZOS: We will submit it by Friday of next week Mr Chairman.

CHAIRPERSON: Yes. Mr Prinsloo?

MR PRINSLOO: Honourable Chairperson that would be in order by the following Friday we will have submitted it as well.

CHAIRPERSON: Alright, it is placed on Record that Counsel, both sides, will make, at any rate, Counsel for the Applicants will make their final submission in response to Mr Bizos’ argument by Friday next week and that after viewing the tapes, Counsel for the Applicant is of the view that our attention should be drawn to some part of the tapes. They would also reduce that to writing and let us have that by Friday of next week.

MR WILSON: Counsel for the Applicant?

CHAIRPERSON: Counsel for the Applicant. I’m sorry, Counsel for the family. Thank you very much. We have come to the end.

MR WILSON: I have spoken to one, well to both of the Counsels for the Applicants and indicated that it would assist us if there are any other portions of the tapes that they think we should have regard to, that they should also notify us. So far we have been told, I think only a portion of Tapes 8 and 9 but if there are any other tapes, we would invite both parties, both Counsels to draw our attention to them.

I gather it takes quite a long time to look at all 21 of them.

CHAIRPERSON: I would like to place on Record that Mr Mpshe, you will take possession and control of all these tapes and if the need arises that any portion of those tapes is to be viewed by members of the Committee, you will make the necessary arrangements.

The Committee has now concluded hearing evidence and argument, oral argument in this matter. I have already mentioned that Applicants’ Counsel may submit by Friday further written arguments. The Committee will in due course, after it has received the submissions, consider the entirety of the representations that have been made to us and arrive at it’s decision and will then make it known.

The Committee now adjourns.

COMMITTEE ADJOURNS