TRC Final Report

Volume 6

Section 3

Chapter 6

Subsection 16

175. In determining whether the applicants had made full disclosure, the Committee gave consideration to the purpose of the list of names. The applicants testified that Mrs Derby-Lewis had prepared the list of names for innocuous reasons and that Derby-Lewis had decided to use it for a totally different purpose. The Committee found that the reason Mrs Derby-Lewis gave for requiring the addresses of the persons on the list was unconvincing. Her explanation that she needed addresses in order to arrange interviews makes little sense in view of her concession that there was no likelihood of Mr Hani giving her an interview in his home.

176. The Committee found that the names constituted a hit list compiled for the purpose of planning assassinations. The evidence of the applicants that the list was to assist them to communicate confidentially was wholly unconvincing and the Committee found their version to be untrue in this regard.

177. On the question of the murder weapon, Mr Derby-Lewis told the Committee that he had acquired the Z88 pistol in order to protect his family. The silencer was fitted so that he could practice at home without disturbing his neighbours. The silencer would also give him a strategic advantage during an attack upon his home. Derby-Lewis thus contended that the original reason for obtaining the firearm was unrelated to the subsequent assassination of Mr Hani. It was purely fortuitous that he was in possession of an unlicensed firearm fitted with a silencer at a time when Walus was looking for an appropriate murder weapon to execute the assassination.

178. The Committee had no hesitation in rejecting Derby-Lewis’ evidence in this regard. His explanation for fitting a silencer to the unlicensed firearm was inherently improbable and his explanation of the reason for obtaining the firearm was clearly false. It was particularly significant that he obtained a weapon that was perfectly suited for the purposes of the assassination fairly soon before the incident and at about the time when the applicants agreed that Mr Hani should be shot. The Z88 pistol was clearly obtained for the express purpose of assassinating Mr Hani.

179. The Committee gave its attention to whether Walus had acted on the instruction of Derby-Lewis in executing the attack. Walus initially stated in his application that he had acted alone in planning and executing the assassination. Subsequently, his application was amended to indicate that he had acted on the instructions of Derby-Lewis, but that they had jointly planned the assassination.

180. The Committee found that it was clear from the record that Walus was not acting as a mere functionary. He had a clear understanding of the political situation and was active in right-wing politics. He was clearly activated by his personal desire to stop the ‘Communists’ from taking over the country. He participated fully in political discussions and in hatching the plot to assassinate Mr Hani. He was under no duress or coercion and executed the plan as he deemed fit. Indeed, Derby-Lewis indicated that he was taken by surprise by the timing of the assassination.

181. In any event, Walus’ own testimony is contradictory on the issue of orders. It is also contradicted by the testimony of Derby-Lewis, whose evidence was that the applicants were acting as co-conspirators who had jointly taken the decision to assassinate Mr Hani.

182. As an active CP member, Walus would have been aware that the CP has constitutionally established decision-making structures and that Derby-Lewis had no power to order him to commit murder, particularly in the light of the CP’s policy of non-violence. There was no suggestion that he was ever previously ordered by the CP to commit any unlawful acts, let alone murd e r. Moreover, he failed to raise the alleged order to assassinate Mr Hani with any person in authority or with any governing structure in the CP.

183. In the circumstances, the Committee was satisfied that Walus was a coconspirator and that he was not merely acting on orders from Derby-Lewis.

Accordingly, the Committee rejected the argument raised on behalf of Walus in this respect. The Committee judged that this was an afterthought and was resorted to in an attempt to enhance Walus’ chances of receiving amnesty by curing deficiencies in the original application, and to bring the application within the ambit of the provisions of the Act, particularly section 20(3)(e).

1 8 4 . In summary, the Committee found that the applicants had failed to make a full d i s closure in respect of any of the relevant and material issues and was not satisfied that they had complied with the requirements of the Act, in particular the provisions of section 20(2)(a) thereof. Amnesty was refused [AC/1999/0172].

Legal challenge

185. A full bench of the High Court sat to review an application from the applicants challenging the decision of the Amnesty Committee. The Court considered all the evidence that had been presented before the Committee, as well as the arguments by all the parties, and analysed the various provisions of section 20 of the Act in detail.

186. In summary, the Court’s main findings were that the Amnesty Committee had correctly rejected the applicants’ contention that they had acted on behalf of the CP, subjectively believing that their conduct would advance the cause of their party. Further, the Court endorsed the finding of the Committee that the applicants had not acted in the course and scope of their duties as members of the CP, as is required by section 20(2)(d) of the Act, as assassination was never one of Derby-Lewis’ duties as a senior member of the CP. It followed that Derby-Lewis could not have shared a non-existent duty with Walus; nor could he have delegated part of it to Walus. It followed that assassination never formed part of Walus’ duties either.

187. The Court found that Walus was in a diff e rent position as a rank and file member and was entitled to assume that Derby-Lewis had authority to speak on behalf of the CP. In his original application, Walus stated that, ‘he had acted alone in the planning and commission of the deed’. Under cross-examination, he said that this was not true. Walus later amended his amnesty application to incorporate Derby-Lewis as his accomplice, which he then insisted was the truth. Walus’ version was that he believed that his assignment was an order from Derby-Lewis, given as a result of his senior position in the CP. This claim, the Court found, lacked objective credibility.

188. The Court found that the Amnesty Committee was correct in rejecting the applicants’ evidence in respect of obtaining of the pistol and the silencer and the purpose of the list of names as improbable, contradictory and lacking in candour.

189. The Full Bench dismissed the application with costs.