CHAIRPERSON: It's Friday the 7th May 1999, it is the continuation of the amnesty applications of W F Schoon and others in regard to the Cosas Four Matter. The parties and the appearances are as previously indicated on the record.
Mr Visser have you got any reply?
MR VISSER IN REPLY: Chairperson, thank you. Very briefly, I hope, arising from not only my learned friend Mr Tshabalala's argument but also particularly from what Mr Jansen told you, there are just about five points which I just want to raise and very briefly deal with them.
We have attempted in our argument to deal with the words that you find in the provisions of Section 20 Sub-section 2 (b) and we have attempted in our written argument and oral argument to draw your attention to the difficulties which are caused by the expression implied authority, express or implied authority. My learned friend, Mr Jansen, put it quite pithily when he said that these difficulties are the ones that one might expect when you take a common law principle applicable to civil law and you apply it to a process such as the one that we're busy with because it has become an expression which is used without really thinking about it within your duties and within the course and the scope of your authority.
It is not surprising therefore, Chairperson, that in common law the issue of authority has been watered down tremendously. The latest catch phrase which is used in our decisions as far as the authority is concerned and in applying it to the facts of each case is that the court departs from the proposition that everything that is associated with your duties is taken to be part of your implied authority.
CHAIRPERSON: Associated with you?
MR VISSER: With your duties. With your duties, if you - the famous case in England, if you are a carriage driver, whatever happens to the horse for example is associated with your duties. If you have to act in order to protect the interests of your master as far as the horse is concerned, whatever you do whether it is specifically implied in your - specifically your authority, is taken to be part of your implied authority because you can't perform your duties without the horse. It goes to certain extremes even if one reads those cases, very interesting cases to read if one has nothing else to do, but the point is that what we are submitting very briefly in regard to Section 22(b) is at least there should be some distinction between a procedure such as an amnesty procedure and the civil law and in that regard we submit or we did submit that it should be even more widely interpreted in the present instance, given the other wordings of the Act referring to the struggle of the past, the professed intention that amnesty should be provided on as wide a basis as possible and not least, the fact that it makes no sense to assume that implied or expressed authority in Section 22(b) presupposes some legal authority because had that been so, there wouldn't have been an amnesty applicant before you because they would have simply said we had a legal express or implied authority. The point that the Amnesty Committee's deal with is offences and delicts. There could not have been authority for that.
Chairperson, dealing then with the next point, the issue of Section 22(f). I believe it is fair to submit to you that it is been accepted during the last two years by the Amnesty Committees that this means no more, the duties within the scope of his or her duties and within the scope of her express or implied authority that it means no more than that implied authority is what they thought was expected from them by the various pronouncements made by politicians, the State President, by people in higher places, by the use of certain words, I refer to that as the war psychosis and not the least of all, the fact that there was a life and death struggle going on in our country and the need to know principle which you have heard about many, many times has been accepted, Chairperson, and I submit that you will accept it, gives an explanation as to why when an illegal act had been performed that it was not publicised, it wasn't discussed with either their peers or even their commanders. We've seen this throughout the amnesty process.
General Erasmus in the Mthimkulu matter was asked this very question:
"Did you report higher up to head office about what you had done?"
and he said:
"No"
and they said
"Why not?"
and he said
"What was the point of involving more people in my illegal acts, there's no point to that and in any event, the more people I tell, the more likely it is that I'm going to be found out about what I did."
And that's the reality of the past, Chairperson, and that's the reality which must be accepted in the proceedings in these amnesty applications, with great respect.
Chairperson, the issue which I mentioned about the other matters, I neglected to refer you to the so called Zero Hand Grenade incident for which Brigadier Cronje has also received amnesty. You will find that in his decision at page 9 starting at the bottom of the page under the heading "Hand Grenade Murder of Unknown Activists." In this particular incident there was intelligence that a group of young people wanted to attack the houses of policemen on a particular day. They were waiting for weapons to come in. What happened there was that the police decided that there was no way in which they could prevent the attacks from occurring. A plan was then made and then that plan entailed that a hand grenade, Russian hand grenades, were taken and the fuse delay was shortened so that there would be no delay at all which meant that when the pin was drawn it would explode immediately and in that process eight youngsters were killed and nine were injured and as I said before, Brigadier Cronje, for his part in that incident has already received amnesty.
Now as far as the issue of other amnesty decisions is concerned and I will be very brief to say this and I think I did say this in my argument, I know of no authority which applies the doctrine of stare decisis to Commissions of Enquiry.
ADV DE JAGER: Perhaps Judge Southwood ruled in the application of was it Gerber that the principle doesn't apply to commissions.
MR VISSER: That would make sense, I haven't read the judgement, unfortunately, but that would make sense, Chairperson, but the reason why it makes sense is that it is -not to substitute or replace, "dit word ondervang" by the - that's the best translation I can come up with, by the provision in the constitution and we're now living under a constitution which requires fair administrative action and it is my submission that it is eminently unfair to create the situation or to allow the situation to evolve where one Amnesty Committee would accept certain matters as read whereas another Amnesty would not and it would be grossly unfair to the applicants in the process seen as a whole that amnesty would be granted in matters which are less serious or weaker than the facts upon which others rely. We have to accept, Chairperson, on the basis of omnia rite exe acta that the original Amnesty Committee when they gave their judgements that they applied their minds to the requirements of the Act and that they did so seriously unless of course there are reasons which indicate ex facie the decisions that they did not do so. Once that is so and on the basis of fair administrative action we submit, with respect, that this Committee will have regard to the facts and the decision in regard to those facts handed down by original Amnesty Committee.
CHAIRPERSON: Yes and then of course we as a Panel have to apply our independent minds to the matter. We, as part of our duty of being fair in matter which are placed before us, we have to take regard of all these relevant factors which amongst others things would be the fact that a possibly similar matter in pari materia has been considered and we throw that into the scales in applying our minds.
MR VISSER: Yes indeed and it goes actually materially further. Section 20 Sub-section 4 with it's reference to the criteria in other legislation that had been repealed really opens up another enquiry and if one looks at the way in which those criteria were applied, I have unfortunately not got it in front of me but it was almost ridiculously widely applied.
ADV DE JAGER: Mr Visser, my problem with that is the Act says I should look at the criteria. That doesn't say I should look at how it was applied, I should read the criteria and I should take note of the criteria, that's the regulations or the Act as such.
MR VISSER: Well Chairperson, let me just read this to you, it's not entirely correct what Commissioner de Jager puts to me, it says
"In applying the criteria contemplated in sub-section 3, the Committee shall" and that's pre-emptory, "take into account the criteria applied in Acts repealed."
So ...(intervention)
ADV DE JAGER: Ja but not how it was applied, the criteria applied, they applied it and that was a printed criteria?
MR VISSER: Yes well it really takes the matter not much further, the fact is ...(intervention)
ADV DE JAGER: And also say in fact I'm of the view, I don't say I'm correct, but that this Act is even going further because it's taken - there you should have a real motive yourself and now it should be associated with the matter.
MR VISSER: That much is quite clear and that I have already argued and yes, you're absolutely correct.
Chairperson, as far as proportionality is concerned, looking at the amnesty decisions, you handed down as you said which was something that you will exercise in your independent mind will have regard to the question of proportionality has been approached on a very liberal basis. If it had not been done it is inconceivable that amnesty could ever have been considered or could ever be considered that judgement hasn't been given yet, handed down yet in matters such as the Church Street Bomb for example, in matters such as any of these bombs in which scores of people have been injured and killed. Chairperson, so the only point here is that the Committee will, I have no doubt, guard against being too technical about the approach in regard to proportionality because if you want to be principled about the matter, the taking of one single life could never be proportional to any political objective that one wishes to achieve so that is not the test which the Act clearly could have had in mind, it is a more liberal approach Chairperson and we would ask you to adopt that liberal approach.
Just lastly, in regard to this whole question in regard to Section 22(f), the issues of pressures exerted, I might just refer you to page 4 and this really concerns the issue which we debated during my argument, Chairperson. 4 of the Judgement, yes - of the decision of Cronje, I'm sorry. This really concerns the issue which we debated during my argument as to whether 22(b) could accommodate the person who actually took the decision and did not refer it higher up, it also in a certain sense applies to Mr Rorich's position but more particularly in regard where did he get his implied authority from when he, in the line of the command chain, made a decision and gave an order without referring it higher up. The original Amnesty Committee said at page 4:
"On the other hand the police were pressured to maintain law and order to deal with terrorists and to guarantee the safety of ordinary citizens against incidents such as the Church Street Bomb, the Magoos Bar Bomb and the St James' Church Massacre, the murder of farmers and hundreds of other incidents of terrorism and killings. This pressure did not only come from politicians but also from the business sector, farmers and ordinary citizens. Such words such as "eliminate them, take them out, pursue them, pay them back in their own coin - "betaal hulle terug in eie munt", do to them what they're doing to you, were used according to the evidence of a number of applicants. They understood this to be authorisation to use bombs and to hand grenades and in some instances to eliminate or kill certain people".
And that is really the point.
Chairperson, thank you for listening to me, that concludes my argument and I repeat that we pray that you will grant the amnesty as we have asked you. Thank you.
CHAIRPERSON: Yes, thank you Mr Visser. Ms van der Walt have you got any further submissions?
MS VAN DER WALT: Nothing thank you, Chairperson.
CHAIRPERSON: Mr Jansen have you got anything that you want to add?
MR JANSEN: Yes, thank you Mr Chairman. As indicated, not anything specifically in reply but just I wish to deal with what I have been able to ascertain since yesterday on Cosas and it's position as an organisation. Now Mr Chairman, as stated I realised that to my embarrassment that I had throughout been in my mind actually thinking of the organisation Sasco and I hope you'll excuse me.
ADV GCABASHE: It's Saso, not Sasco. Sasco are the people who make bread. Saso.
MR JANSEN: Yes, it's Sasco.
ADV GCABASHE: My apologies.
MR JANSEN: It is a bit confusing and I assume that there are many, many more organisations but it seems is the following and this is what I gained.
Starting at the ANC itself, the ANC I think it's obviously well known that it's involved in a tripartite alliance with the Communist Party and the Trade Unions but that tripartite alliance is not referred to in it's own constitution and I am told that in fact there is not even a conference or a meeting of some sort where one would find a specific decision having been taken that there would be such an alliance, it is apparently a development of history and historical fact. Now that sort of alliance situation is found also in the student movements and today it is called apparently the Progressive Youth Alliance. Now the Progressive Youth Alliance today consists of Sasco, the South African Students' Congress, Cosas, the Congress of South African Students and that's obviously where the confusion then comes in because of the proximity or the closeness of the names and then the ANC Youth League. Now the ANC Youth League is actually the only youth organisation as such which as an integral part of the ANC by virtue expressly of it's constitution, that and the woman's league are the two things mentioned in it's constitution itself.
Sasco is really for tertiaries and organisations whose members are at tertiary education institutions, universities, technikons etc. Sasco is a latter day organisation in the sense that it was formed either in 1990 or 1991 after the unbanning of the ANC and it's constituent components that formed and amalgamated into Sasco was Nusas and Azaso. Now this then brings us back into the '80s with Cosas and them. These organisations, they were not part, not by virtue of their constitution, part of the ANC or formally aligned to the ANC but what they were, they were organisations who had regarded themselves as charterist organisations.
ADV DE JAGER: Well they couldn't be aligned because at that stage the ANC was an illegal organisation so they might have been at the best a sort of front organisation?
MR JANSEN: Yes, yes because the ANC was in a certain - it's existence internally was in a certain sense in suspension but I think the main thing to remember here is that main division in Black politics between the charterist organisations and the non-charterist organisations and apparently the interesting thing about Azaso is, which became one of the main sort of affiliates of the ANC is that it had Black consciousness origins but in the '80s at some stage it became a charterist organisation and then as I said amalgamated with Nusas to form Sasco.
Cosas on the other hand seems to have always been an organisation whose members are still at school, I would imagine mainly secondary school. But Cosas was a main player in the late '70s and early '80s and apparently one of the dominant players and the main player in the UDF. Exactly who it's leaders were and how it functioned and how widely it functioned, I don't know and that's what I would think at some stage one would maybe get some more accurate research on this but it would seem one gets the impression that Cosas was an organisation that had membership almost all over the country and at all schools and by virtue or how politically or in some areas how politically active many school children were, they obviously had wide support.
CHAIRPERSON: I assume they were unrestricted?
MR JANSEN: Sorry Mr Chairman?
CHAIRPERSON: I assume they were unrestricted particularly say in 19 ...(indistinct)
MR JANSEN: Yes were unrestricted but what happened to them later in the '80s seem to be uncertain whether they became a restricted organisation of some sort, I'm not sure of that, I could also not - the persons I got my information from were not certain themselves exactly what but they know that Cosas was certainly one of those organisations that were targeted quite heavily by the security forces, their leadership.
CHAIRPERSON: So in '81/'82 are you saying they were unrestricted?
MR JANSEN: Yes it would appear that they were unrestricted at that stage and they were then I suppose one of the many democratic or charterist movements that were starting to form the precursor to the UDF.
CHAIRPERSON: Thank you.
MR JANSEN: And Cosas apparently still exists today and is part of this progressive youth alliance but it is apparently not as dominant in the political sphere as it was at that stage and yes, that's really about what I've been able to ascertain at this stage, Mr Chairman, I'd like to at a later stage maybe just get hold of their constitutions and maybe a little bit more of their history. In fact persons I spoke to could not even tell me whether Cosas existed prior to 1976 or whether it was came really essentially from that time period. Thank you Mr Chairman.
CHAIRPERSON: Yes, I think that concludes the submissions.
MS VAN DER WALT: May I then be excused?
CHAIRPERSON: Yes, we have already excused Mr Tshabalala. I need some time to consider the decision in this matter and we will perforce in the circumstances reserve the decision and we will notify the parties once that is available.
Ms van der Walt and Mr Prinsloo you are excused and whoever else is not directly involved in the matters which we will be proceeding with, which, Ms Thabethe will be?
MS THABETHE: The Joe Pillay matter, Mr Chair.
MS VAN DER WALT AND MR PRINSLOO EXCUSED
