TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 6

The decision of the Amnesty Committee

64. The basis of the Committee’s refusal of amnesty was that it found that both Derby-Lewis and Walus had failed to satisfy two of the three jurisdictional preconditions for the granting of amnesty as set out in section 20(1) of the Act: that is, they had failed to comply with the requirements of section 20(1)(b) read together with section 20(2), and they had not made a full disclosure of all relevant facts as required by section 20(1)(c).

65. With reference to section 20(2)(a), the Committee was not satisfied that, in assassinating Hani, the applicants had acted on behalf of or in support of the CP, the publicly-known political organisation of which both applicants were members at the time of the assassination. The Committee expressed itself as follows:

It is common cause that the applicants were not acting on the express authority or orders of the CP, which party they purported to represent in assassinating Mr Hani. The CP has never adopted or espoused or propagated a policy of violence or the assassination of political opponents.

The CP was never aware of the planning of the assassination and only became aware thereof after the event. It never approved, ratified or condoned the assassination.

66. The Committee did not find it necessary to decide whether the phrase ‘on behalf of’ (in section 20(2)(a) of the Act) should be interpreted narrowly. This would have had the effect of confining the application of this phrase to cases where a person acted as a representative or agent of the relevant political organisation or liberation movement. The Committee held the view that, in any event, section 20(2)(a) ‘does not cover perpetrators who act contrary to the stated policies of the organisation which they purport to represent’. As the assassination of political opponents was contrary to the stated policies of the CP, the applicants had failed to comply with the re q u i rements of section 20(2)(a) of the Act.

67. With re f e rence to section 20(2)(d) of the Act, the Committee found that, in assassinating Hani, the applicants were not acting within the course and scope of their duties or on the express authority of the CP. This was confirmed by the evidence tendered by the leader of the CP, Mr Ferdi Hartzenberg, and by the applicants themselves.

68. In respect of section 20(2)(f), the Committee rejected the argument that the applicants had any ‘reasonable grounds’ for believing that, by assassinating Hani, they were acting in the course and scope of their duties, or within the scope of their express or implied authority.

69. Finally, the Committee found that both Derby-Lewis and Walus had failed to make full disclosure (as required by section 20(1)(c)) in respect of a number of ‘relevant and material issues’, identified by the Committee as follows:

a the purpose of the list of names and addresses found in Walus’ apartment after his arrest and on which Hani’s name and address appeared ;

b the purpose for which the names on the list were ‘prioritised’;

c the purpose for which the Z88 pistol (the murder weapon) was obtained and fitted with a silencer; and

d whether or not Walus, in assassinating Hani, was acting on the orders or instructions of Derby-Lewis.

The applicants’ challenge

70. The applicants challenged all the above grounds provided by the Committee in refusing amnesty, and argued that its decision should be reviewed and set aside on the grounds that they had complied with all the legal requirements for amnesty. They argued that the Committee had misinterpreted section 20(2)(a); that the Committee had failed to follow the correct interpretation of section 20(2)(a) as established by other (differently constituted) amnesty committees in previous decisions where amnesty had been granted (such as the murder of Ms Amy Biehl and the St James’ Church attack); that the Committee had misdirected itself both in fact and in law in its interpretation of section 20(2)(f), and that its findings in respect of these subsections were not justifiable in relation to the reasons given for them. The case of Mr Koos Botha, a CP member of Parliament who planted a bomb at a school, was cited. Mr Botha had been granted amnesty for purely political objectives because he ‘had interpreted the public utterances of the CP leaders as a call to violence’.

71. With regard to the question as to whether or not Walus had acted on the orders of Derby-Lewis, they claimed that the Committee had erred in law by setting a higher standard than the Act re q u i red, because it had elevated the criterion or consideration set out in section 20(3)(e) of the Act to the status of a substantive requirement for amnesty in the context of section 20(1).

72. With the exception of the purpose for obtaining the pistol and silencer, the other issues identified as relevant facts for purposes of section 20(1)(c) were not relevant facts re q u i red to be disclosed fully by the applicants in order to qualify for amnesty.

73. Even if the issues referred to above, or only some of them, were relevant facts for the purposes of section 20(1)(c), the decision of the Committee in respect of each of these issues was not justifiable (objectively rational) in relation to the reasons given for them.