TRC Final Report

Volume 6

Section 3

Chapter 6

Subsection 15

The Decision of the Amnesty Committee

1 6 1 . In arriving at a decision, the Committee had to isolate several issues for consideration.

a Were the applicants acting bona fide on behalf of or in support of the CP in furtherance of a political struggle by the CP against the ANC/SACP alliance, as required by section 20(2)(a) of the Act?

b Were the applicants acting bona fide as employees or members of the CP in the course and scope of their duties and within the scope of their express or implied authority in furtherance of a political struggle with the ANC/SACP alliance, as required by section 20(2)(d) of the Act?

c Did the applicants have reasonable grounds for believing that they were acting in the course and scope of their duties and within the scope of their express or implied authority as required by section 20(2)(f) of the Act?

d Did the applicants make a full disclosure of all relevant facts as required by section 20(1)(c) of the Act with specific reference to:

e the purpose for which the list of names was compiled;

f the purpose for which names were prioritised on the list;

g the purpose for which the Z88 pistol was obtained and fitted with a silencer;

h whether Walus was acting upon orders from Derby-Lewis in assassinating Mr Hani;

i the role played by Mrs Derby-Lewis in the killing and whether she had advance knowledge of the assassination?

162. The Amnesty Committee devoted time to two further issues: the weight to be attached to statements that Derby-Lewis and Walus made while in detention and the question of a wider conspiracy to kill Mr Hani. Although the Committee was not persuaded that the applicants’ versions detracted from the weight of these statements, it made an assessment of the applicants’ evidence without having regard to these statements. Furthermore, although there were compelling arguments in favour of the conclusion that there was a wider conspiracy to kill Mr Hani, the Committee found that the evidence did not conclusively establish this fact.

163. The Committee found that it was 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 had never adopted, propagated or espoused a policy of violence or the assassination of political opponents.

164. Various newspaper reports immediately after the assassination evidence the CP leadership’s disapproval of the incident and their rejection of murder as a political tool. The arrest of Mrs Derby-Lewis came as a shock to them. They had denied earlier that Walus was a listed CP member. In fact, during a television interview on 20 April 1993, the acting leader of the CP, Dr Ferdi Hartzenberg , unequivocally distanced the CP from violence and reiterated the commitment of the CP to non-violent, democratic means of pursuing its aims. He expressly denied that the statements made by CP leaders amounted to tacit approval of violence, or that the CP had ever planned violence on an offensive basis. Rather, the CP was looking at means to defend its followers from the violence that was taking place.

165. In testifying before the Committee, Dr Hartzenberg also denied that the objective which the applicants pursued, namely to cause chaos and revolution in the country, formed part of CP policy. He testified further that it was not CP policy to eliminate opposition political leaders. The CP had never been aware of the planning of the assassination and only became aware of it after the event. It never approved, ratified or condoned the assassination. In an apparent concession of this fact, the applicants submitted in their written argument that it was not a legal requirement that the CP should have been aware of or expressly approved the assassination. It was merely required that the CP should have benefited from the assassination.

166. The applicants also relied on the dictionary definition of the Afrikaans term ‘ten behoewe van’ which is the equivalent of the term ‘on behalf of’ used in section 20(2)(a). According to the definition, the term means ‘tot voordeel van’ (to the benefit of). The applicants failed to specify what benefit allegedly accrued to the CP following to the assassination. On the contrary, the evidence before the Committee did not show that any benefit had accrued to the CP.

167. Those who objected to the applications submitted in their written argument that the words ‘on behalf of’ in the context of section 20(2)(a) were used in the narrow sense as referring to someone who is mandated or authorised to act by an organisation. Any other interpretation, and particularly the wider meaning suggested by the applicants, would lead to absurd results. They illustrated such absurdity by referring to the example of bank robbers claiming to be acting on behalf of a liberation movement because their actions were crippling the economy and thus benefiting the struggle of the liberation movement.

168. Taking into account the submissions of the objectors, the Committee noted that subsection 20(2)(a) of the Act did not cover perpetrators who acted contrary to the stated policies of the organisation which they purported to re p resent. The Committee was therefore not satisfied that the applicants had acted on behalf of or in support of the CP in assassinating Mr Hani.

169. The Committee accepted that the applicants clearly and subjectively believed that they were acting against a political opponent. The objective facts supported this belief, in particular the fact that Mr Hani was regarded as such by the CP and the right wing. However, this factor, while relevant, was insufficient on its own to render the application successful.

170. The Committee found that it was clear that the applicants had not been acting within the course and scope of their duties or on express authority from the CP. The clear evidence of Dr Hartzenberg negated any claim that the public utterances of the CP leadership constituted implied authority for the assassination. The Committee found that it would have been futile for the applicants to rely on such a claim, given the fact that they were both active CP members, acquainted with the party structures and constitution as well as the policy of non-violence. Mr Derby-Lewis, in particular, was part of the CP leadership and national decision-making structure and could not reasonably rely on the utterances of his colleagues to support his claim that they had implied authority from the CP for the assassination. His discussions with Dr Tre u rnicht about killing the ‘anti-Christ’ could hardly amount to authority or an instruction to commit the assassination. To his knowledge, Dr Tre u rnicht had no power in terms of the CP constitution to bind the CP without the necessary mandate, especially in so radical an undertaking as the assassination of a high-profile political opponent.

171. The Committee found the inference that the public speeches and statements relied upon by the applicants amounted to a call for armed struggle or violence to be unfounded. These were no more than predictions or warnings that the CP might adopt a course of violence in the future .

172. Nor did the random explosions and acts of violence referred to by the applicants support their argument. None of these acts were committed by or on behalf of the CP. Indeed, Mr Koos Botha was repudiated by the CP during October 1992 for causing an explosion at the Hillview School. The basis of this repudiation was that the speeches of Dr Treurnicht could not be interpreted as a call for violence.

173. The Committee was satisfied that the applicants were not acting within the scope of any implied authority from the CP in assassinating Mr Hani. The applications accordingly failed to comply with the requirements of section 20(2)(d).

174. The Committee was not satisfied that the applicants had any reasonable grounds for believing that they were acting within the course and scope of their duties. The applications accordingly failed to comply with the requirement of section 20(2)(f).