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ON RESUMPTION ON 09.07.97
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 ON RESUMPTION ON 09.07.97

CHAIRPERSON: Mr Brink are we ready to commence proceedings?

MR BRINK: Yes we are Mr Chairman.

CHAIRPERSON: Mr Arendse.

ADV ARENDSE: Thank you Mr Chairman. Good morning members of the Committee. Mr Chairman we would like to proceed to deal with the application of Vusumzi Samuel Ntamo and we propose adopting the same procedure. 

&#9;If I could hand up the original and mark it Exhibit D, the original of his affidavit and then ask my colleague, Ms Gozo, to deal with this part of the application. Thank you.

CHAIRPERSON: Well the affidavit of Mr Ntamo will go in as Exhibit D.

EXHIBIT D HANDED UP - AFFIDAVIT V NTAMO

&#9;Miss Gozo you may commence.

ADV GOZO: Thank you Mr Chair, thank you members of the Committee. Mr Chair because of the condition of applicant no.3 I propose to first explain to him in his vernacular the situation in which we are at now, so that his mind can be able to catch up, and the reason for that will appear from the contents of the affidavit itself.

&#9;Vusumzi these are members of the Amnesty Committee. They have taken your statement. They have a copy of your statement before them. I am just telling you what is going to happen. We will read out your statement and you are going to listen to your statement. After listening to it the Chairperson of the Committee will ask you whether you confirm the context of the statement. You will then be asked to stand up. You will be told when to stand up, not now. You will be sworn in, raise your right hand, not now, at the relevant time.

&#9;I am now going to read out your statement, please listen.

&#9;Mr Chairman I now proceed to read the contents of the affidavit of Vusumzi Samuel Ntamo.

&#9;"1.&#9;I, the undersigned Vusumzi Samuel Ntamo do hereby make oath and state that I am 25 years old and currently serving an 18 year sentence at the Helderstroom Prison for the murder of Amy Biehl.

&#9;2.&#9;The facts to which I depose are true and correct and within my personal knowledge unless the context indicates otherwise.

&#9;3.&#9;I am an ordinary member of the PAC, and a supporter of the Pan African Students Organisation commonly known as PASO, and the Azanian Peoples' liberation Army, commonly known as APLA.

&#9;4.&#9;I turned 22 on 25 August 1993 the day on which Amy Biehl was killed. 

&#9;5.&#9;I only attended school up to standard 4. I have a very low intelligence quotient and I would regard myself as mentally backwards. I was referred for observation at Pollsmoor Hospital during the criminal trial in 1994 for 30 days. I think I do suffer from some mental incapacity. I am not able to properly articulate any political ideology or motivation for my conduct. I am sure, however, given my limited mental capabilities that I am a firm supporter of the Pan African Congress, PASO and APLA.

&#9;&#9;I have always been a follower and it is in this way that I followed some of my comrades including Mongezi Christopher Manqina into joining the PAC. I have always attended PAC and PASO meetings, rallies and marches. I am not a member of PASO only because I was not a bona fide student.

&#9;&#9;I confirm that I attended the launch of the Langa High unit of PASO at the Langa High School on 25 August 1993. I attended the meeting together with Manqina. I grew up together with Manqina in Langa and we have been friends for years. I only got to know Nofemela during the criminal trial. And I got to know Peni subsequently after he was convicted and sentenced.

&#9;&#9;I remember that a lot of political speeches were made at the meeting on 25 August 1993, and that we were toyi-toying and chanting political slogans like One Settler, one bullet, throughout the meeting and after the meeting.

&#9;&#9;I did not understand much of what was being said during these speeches, but I remember that I was highly motivated during the meeting and after we left the meeting.

&#9;&#9;The affidavit of Ntombeko Ambrose Peni has been read and explained to me and I confirm the contents thereof insofar as it relates to me and what happened at the re-launch of the Langa High unit of PASO. 

&#9;&#9;In particular I confirm that along Vanguard Drive we had stoned a truck and tried to burn it when the police arrived on the scene, fired shots at us, and we split into two groups. I was in the group with Manqina which ran towards the Langa Station. We were in a group of between 50 and 60 people.

&#9;&#9;When we got to the Langa Station we had to wait for quite a while before we could board a train because someone had allegedly taken a gun from a policeman and that is why the train was delayed.

&#9;&#9;When the Khayelitsha train came we changed platforms and boarded that train and got off at Heideveld Station. We got there just before 5 p.m.

&#9;9.&#9;Whilst in the group and walking along NY110 towards NY1 we were chanting, dancing and singing. At the corner of NY1 and NY132 we saw a truck and threw stones at the truck. At this time Manqina was standing and talking to a girl whose name I do not know. I threw stones at the truck. A car came behind the truck and we also stoned this car. 

&#9;&#9;I now know that Amy Biehl was in this car. I was part of the group that threw many stones at the car. When the car stopped Amy Biehl got out of the car and ran towards the garage. As she ran towards the garage and she was on the grass verge Manqina tripped her and she fell. I saw Manqina stab her with a knife. About seven or eight others also had knives and were stabbing at her.

&#9;&#9;I, together with others, threw stones at her. I threw many stones at her head from a distance of approximately one metre away. I only stopped when the police approached and the others were running away.

&#9;10.&#9;Even after Manqina had stabbed Amy I still threw stones at her, at least another four or five stones. I threw stones at her because she was a Settler.

&#9;11.&#9;I have applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, Act no.34 of 1995 because the act which I committed that day was associated with a political objective committed in the course of the conflicts of the past.

&#9;&#9;I was highly politically motivated that day and I did what other PASO people around me were doing.

&#9;12.&#9;During the criminal trial a statement I made to the police was admitted. This is reflected in the record on pages 49 and 50. That statement was largely correct.

&#9;13.&#9;I deeply regret what I did that day. I want to ask Amy Biehl's parents, friends and relatives for forgiveness. 

&#9;&#9;I will never again do what I did to Amy Biehl. I am aware that we now live in a country governed by Black people and I am satisfied that there is no longer any reason for me to do what I did on the 25th of August 1993.

&#9;14.&#9;I respectfully submit that my application for amnesty before this Committee complies with the requirements of the Act..."

and at that juncture we may add the proviso that was added by Justice Ngoepe during the hearings yesterday.

&#9;&#9;"... that my conduct on the 25th of August 1993 was associated with a political objective committed in the course of the conflicts of the past, and that it complies with the provisions of Section 20(2) read with subsection 3 and that I have made a full disclosure of all the facts relevant to the Amy Biehl murder and to this application which has now been read for the record".

CHAIRPERSON: Mr Ntamo will you please stand.

MONGESI SAMUEL NTAMO: (sworn states)

NO EXAMINATION BY ADV GOZO

CHAIRPERSON: Mr Ntamo your counsel has read your affidavit to us, did you understand what she was reading?

MR NTAMO: Yes that is correct.

CHAIRPERSON: Do you confirm that was is said in that affidavit was the truth?

MR NTAMO: Yes I do.

CHAIRPERSON: Thank you. Are there any questions you wish to put to this witness Mr Brink?

CROSS-EXAMINATION BY MR BRINK: Yes Mr Chairman, but I won't be long.

&#9;Mr Ntamo I sympathise with you, but as I understand your affidavit you didn't really understand what was going on at the launch meeting of the Langa High unit of PASO in August 1993, is that correct?

MR NTAMO: Yes that is correct.

MR BRINK: And are you a supporter of the PAC because of the influence your friend Manqina had upon you or because of your own personal beliefs?

MR NTAMO: That is correct.

MR BRINK: Which is correct Mr Ntamo? That Mr Manqina influenced you, is that why you became a supporter of the PAC?

MR NTAMO: Please repeat your question.

MR BRINK: Are you a supporter of the PAC because of the influence your friend Mr Manqina had upon you? Did you hear my question?

MR NTAMO: Please repeat your question Sir.

MR BRINK: I will put it once more. Are you a supporter of the PAC because of the influence your friend, Mr Manqina, had upon you at that time?

MR NTAMO: No.

MR BRINK: In any event at the meeting, the launch meeting, you told us you didn't really know what was being said and what was happening, that is correct, isn't it?

MR NTAMO: That is correct.

MR BRINK: And you, in doing what you did, merely followed the mob rather than having made an independent decision to murder, is that correct?

MR NTAMO: Please repeat your question.

CHAIRPERSON: Why did you do what you did that day?

MR NTAMO: It was because the African land was taken from African people by the White people. The African land was taken from African people by White people.

MR BRINK: And can you tell the Committee why you thought that the murder of Amy Biehl might assist you?

MR NTAMO: Please repeat your question.

MR BRINK: Why did you kill Amy Biehl?

MR NTAMO: The reason was that the government did not want to answer to peoples' rights or grievances.

MR BRINK: And how would the killing of Amy Biehl resolve that difficulty?

MR NTAMO: Please repeat your question. 

MR BRINK: I will go on to the next question.

CHAIRPERSON: Why did you believe that the killing of Amy Biehl would result in the land coming back to the African people?

MR NTAMO: It was because the land was taken from the Africans.

JUDGE WILSON: You had not answered the question which was, why did you believe that the killing of Amy Biehl would help you get the land back?

MR NTAMO: It was because the land is taken by Whites through struggle and we had to get back our land through struggle.

MR BRINK: I have one more question for you Mr Ntamo. In paragraph 10 of your affidavit you say that you threw stones at Amy Biehl because she was a Settler, can you tell me, in your view, what a settler is or was?

MR NTAMO: A settler is a White person.

MR BRINK: All White people?

MR NTAMO: I do not understand the question very well.

MR BRINK: In the circumstances Mr Chairman I don't propose asking any further questions.

NO FURTHER QUESTIONS BY MR BRINK

ADV DE JAGER: Mr Ntamo Mr Manqina your friend was the vice chairperson of the Comprehensive Branch of PASO, so he was a leader in PASO, is that correct?

MR NTAMO: Yes that is correct.

ADV DE JAGER: And as a leader would he have been entitled to give orders to you or direct you what to do?

MR NTAMO: I was only a supporter.

ADV DE JAGER: Yes, and could the chairperson order you to do work for PASO?

MR NTAMO: That is correct.

ADV DE JAGER: And on that day did he ask you to come with him, or to accompany him to the meeting?

MR NTAMO: Yes.

ADV DE JAGER: And could you tell us why did you go to Guguletu on that day? You do not stay in Guguletu do you?

MR NTAMO: I am not staying in Guguletu.

ADV DE JAGER: Well why did you go to Guguletu on that day?

MR NTAMO: It was a toyi-toyi there.

ADV DE JAGER: And what you did there was it because you were following your leaders on that day, the leaders of PASO?

MR NTAMO: I said I was only a supporter.

CHAIRPERSON: Did you throw stones at Amy Biehl because somebody asked you to throw stones or did you do it just because you saw others doing it?

MR NTAMO: I was supporting.

CHAIRPERSON: Just let's think about that again. My question was not whether you were supporting, did you throw stones because you saw your friends throwing stones, or did you throw stones because you were told by your friends to do so?

MR NTAMO: I threw stones because I saw Africans throwing stones.

MS KHAMPEPE: Mr Ntamo do you recall what was happening in and around Guguletu around August 1993 when the youth were involved in preventing deliveries from being effected from town into the township, do you recall that?

MR NTAMO: Yes I do remember.

MS KHAMPEPE: And what was involved in that operation, the way you remember it?

MR NTAMO: The government cars were stoned.

MS KHAMPEPE: And were any trucks coming from companies in town allowed to come into the location?

MR NTAMO: Yes there was one truck which was stoned.

MS KHAMPEPE: So you were involved in preventing these trucks from coming into the location to effect deliveries?

MR NTAMO: Yes that is correct.

JUDGE WILSON: When was this, on the same day?

MR NTAMO: Yes.

MS KHAMPEPE: And how long had this been going on, the throwing of stones at trucks to prevent them from coming into the location?

MR NTAMO: Where?

MS KHAMPEPE: In Guguletu. Had it been going on for a few days or a few weeks, or did it start only on that day when you threw stones even at Miss Biehl's car?

MR NTAMO: It happened on the Amy Biehl incident day.

MS KHAMPEPE: Now did this involve a majority of young people in the location, the throwing of stones at cars?

MR NTAMO: We were coming from Langa township.

JUDGE WILSON: Do I understand you to mean that the people involved in this were young people from Langa township, not from Guguletu?

MR NTAMO: Yes.

MS KHAMPEPE: And where was Miss Biehl's car, was that in Langa or Guguletu when it was stoned?

MR NTAMO: It was in Guguletu.

MS KHAMPEPE: So stones were being thrown at cars in Guguletu, in fact the truck which was in front of Miss Biehl's car was in Guguletu.

JUDGE WILSON: He said it was people from Langa.

MR NTAMO: Please repeat your question.

MS KHAMPEPE: The people who were with you when you threw stones at Miss Biehl's car were they people only from Langa or did it involve the youth in Langa as well as youth who were in Guguletu?

MR NTAMO: There were others who took a train from Bonteheuwel station.

JUDGE NGOEPE: Did you know everybody who was in the crowd?

MR NTAMO: No.

JUDGE NGOEPE: So you wouldn't know whether some of them were from Guguletu or from Langa then, isn't that so, because you didn't know all of them?

MR NTAMO: No it is not so.

JUDGE NGOEPE: What is not so?

MR NTAMO: Others took a train in Bonteheuwel Station, others in Langa Station, we then met in Guguletu.

JUDGE NGOEPE: Yes but people from Guguletu, coming into Guguletu and living in Guguletu could also have boarded the train at that station isn't it?

MR NTAMO: We were coming from the launch in Langa the other group boarded a train in Langa Station, the others in Bonteheuwel Station.

JUDGE WILSON: Were they both from the launch, were both the groups from the launch?

MR NTAMO: Yes that is correct.

JUDGE NGOEPE: Anyway your answer to my question is therefore that although you didn't know everybody in the group in your view they were all from Langa, am I right?

MR NTAMO: Yes that is correct.

JUDGE WILSON: In your affidavit you said, you referred to the statement you made at the criminal trial and you said it was largely correct, do you remember that?

MR NTAMO: Yes I do remember that.

JUDGE WILSON: I would like to ask you about some of the - portions of that statement. Did you say that from Langa you went to Bonteheuwel, you went there to destroy the "Boers' goods"?

MR NTAMO: Yes I do remember.

JUDGE WILSON: And you said you then went on to Guguletu.

MR NTAMO: That is correct.

JUDGE WILSON: And at Guguletu you met a car, a Mazda 323.

MR NTAMO: Yes.

JUDGE WILSON: "And the occupant was a White woman, she drove the car and there were two Black women in the car". Is that correct?

MR NTAMO: Yes that is correct.

JUDGE WILSON: And you said,

&#9;&#9;"We stopped the car but the car didn't want to stop and we began throwing stones at it".

MR NTAMO: Yes that is correct.

JUDGE WILSON: Was your friend Mongesi Manqina with you then?

MR NTAMO: Please repeat your question.

JUDGE WILSON: Was your friend Mongesi Manqina with you then when you were throwing stones at the car? Because you said in your statement that "he then asked one of the comrades for a knife", so was he there?

MR NTAMO: Where?

JUDGE WILSON: Where you began to throw stones at the car, I read exactly what you said in your statement which you confirmed,

&#9;&#9;"We began to throw stones at the car, Mongesi Manqina asked one of the comrades for a knife".

that's in your statement.

MR NTAMO: Yes that is so.

JUDGE WILSON: And when he got the knife he stabbed the White woman you are not sure where, is that so?

MR NTAMO: That is so.

JUDGE WILSON: You said you threw stones at the car and you also threw stones at the woman while she was lying on the ground.

MR NTAMO: That is correct.

JUDGE WILSON: And you said you threw about three times at her head.

MR NTAMO: Yes that is so.

JUDGE WILSON: Then the police came and you ran away.

MR NTAMO: Yes.

JUDGE WILSON: "Mongesi still had the knife and his hands were full of blood", is that correct?

MR NTAMO: That is correct.

JUDGE WILSON: "He was proud because he had killed a White person", is that correct?

MR NTAMO: Yes that is so.

JUDGE WILSON:&#9;"We then went to Langa Railway Station where we broke into the Boers' cars but we did not get anything".

Is that correct?

MR NTAMO: Yes that is correct.

JUDGE WILSON: So the whole of your statement appears to be correct, is that so?

MR NTAMO: No that is not so.

JUDGE WILSON: Well what - I've read to you almost all your statement and you've agreed with all of it.

ADV DE JAGER: I think, with respect, the sentence saying that they broke into the Boers' cars, he said,

&#9;&#9;"When we arrived at Langa Station we waited for cars of the Boers, we didn't find any".

JUDGE WILSON: Oh sorry. He agreed they broke into them. He agreed, when I put it to him he agreed ...(intervention)

ADV ARENDSE: Mr Chairman may I interject, I think we need to be fair to the applicant here, and the interpretation otherwise Justice Wilson must, with respect, must read it in Afrikaans as it is, and it must be translated.

JUDGE WILSON: I read it incorrectly, but he agreed with the version I put to him, didn't he? I put to him that the had broken into the cars and he said yes.

ADV ARENDSE: But Judge Wilson that's unfair, that's not in his statement, you are purporting to read from his statement.

JUDGE WILSON: Did you break into cars at Langa Station?

ADV ARENDSE: Mr Chairman can I object to that question, that being put to the witness.

CHAIRPERSON: Mr Arendse you will have a right to re-examine your witness to him.

JUDGE WILSON: Did you break into cars at Langa Station when you went back there?

MR NTAMO: No we did not.

JUDGE WILSON: Did you wait for cars there and you didn't find any? So I misread what appears in your statement as Mr de Jager has correctly pointed out, what you said in your statement was,

&#9;&#9;"At Langa Station we waited for the Boers' cars, we didn't get any".

did that happen?

MR NTAMO: Please repeat your question.

JUDGE WILSON: After you had killed Amy Biehl you said,

&#9;&#9;"We went to Langa Railway Station...."

did you do that?

MR NTAMO: No.

JUDGE WILSON: You didn't go back to Langa Station?

MR NTAMO: No.

JUDGE WILSON: Well why did you say that in your statement?

MR NTAMO: That is because I did not want to be sentenced.

JUDGE WILSON: But it didn't help you, you had already admitted you had been at the killing of Amy Biehl and you then said,

&#9;&#9;"We then went to the Langa Railway Station".

it doesn't affect your liability.

MR NTAMO: Some of what is written in my statement is true, some is not because I did not want to be sentenced.

CHAIRPERSON: Yes I understand that. Where did you go to after the stabbing of Amy Biehl, can you remember today?

MR NTAMO: Yes I do remember.

CHAIRPERSON: Tell us, where did you go to?

MR NTAMO: We ran away.

CHAIRPERSON: To where?

MR NTAMO: We went back in our homes.

JUDGE WILSON: At Langa, were your homes in Langa?

MR NTAMO: I was staying in Langa, others were staying in Guguletu.

JUDGE WILSON: Thank you.

CHAIRPERSON: Miss Gozo, any re-examination?

ADV GOZO: Can we just confer for a short while?

CHAIRPERSON: Yes you may do so.

NO RE-EXAMINATION BY ADV GOZO

ADV GOZO ADDRESSES: We are indebted to the Chair for giving us time to confer. We are not going to re-examine this applicant, but we would like to draw to the attention of the members of the Committee to two aspects.

&#9;Firstly, the members of the Committee shall notice that the statement that the applicant made to the police was written in Afrikaans. The applicant speaks and understands the vernacular and that statement was therefore a statement that was translated into Afrikaans.

&#9;Secondly, we would like to draw the members of the Committee to paragraph 12 of the applicant's statement. The applicant in his statement makes the following point. ...(intervention)

JUDGE WILSON: Are you talking about his affidavit or his statement to the police?

ADV GOZO: Justice Wilson I am referring to the sworn statement which is in the form of an affidavit which is before the Committee.

&#9;The applicant makes the following statement that,

&#9;&#9;"This statement is largely correct".

JUDGE WILSON: I took him through the statement, I asked him whether things were correct or not, he agreed, did he not, in direct evidence. If you want to clarify that you should re-examine. The whole purpose of my questions were to find out what portions of his statement he said were correct in terms of the affidavit.

ADV ARENDSE: With respect Judge Wilson you quoted it wrongly from the statement ...(intervention)

JUDGE WILSON: I am talking to counsel who is appearing for him.

ADV ARENDSE: I appear together with my colleague Judge Wilson, with respect.

JUDGE WILSON: She is leading the evidence.

CHAIRPERSON: Let's not be too technical about that, make your point please.

ADV GOZO: I am highly indebted to the Chairperson for protecting me.

&#9;The applicant in his sworn statement makes the following point, that this statement is largely correct. He is trying to say to the Committee, I am coming before you and I am doing a full disclosure and what I am largely saying before you is largely supported by what I said before the police.

&#9;Thank you Mr Chair.

ADV ARENDSE: Mr Chairman may I just add. We know now from the evidence, which is now no longer just in an affidavit, it is the evidence of the applicant, that he is almost what one can call mentally retarded. I would regard it as being an abuse to put to a mentally retarded applicant something which he has claimed to have said in a statement which is clearly wrongly quoted.

CHAIRPERSON: Well if it was wrongly quoted it was only a small portion of it was not correctly interpreted. But by and large, sentence by sentence of his statement to the police was read to him and interpreted to him, he could have said I don't understand what is being said, I was wrongly recorded, but when he says he understands and he says it is largely correct, the difference is maybe on whether one sentence was correctly interpreted or not. One must try and get the sense, the overall of sense what he was trying to convey. Now if you would disagree with what he said in that court then you must tell us what portion of his evidence in court you think he believes was not right. Do you understand? You have consulted with him, you can still consult with him if you wish, you can go through his evidence that he gave in the court, that paragraph which was read out, and if you think that you would like to tell us what portion of that evidence he now believes was incorrect you are at liberty to do so.

ADV ARENDSE: Thank you Mr Chairman. That's now fortunately been cleared up. We don't intend to pursue the point any longer.

CHAIRPERSON: Thank you. You have no further re-examination of this witness?

NO FURTHER RE-EXAMINATION BY ADV GOZO

CHAIRPERSON: Thank you very much. Mr Arendse where do we go from here? Do you propose calling any other evidence?

ADV ARENDSE: No Mr Chairman, that is the case for the applicants. We don't intend calling any other witnesses. We did make enquiries about the two gentlemen who were cited as having been speakers at the meeting, the one person is in Gauteng, which would inevitably result in a delay. The other person, in fact none of the people I spoke to in positions of influence in the PAC were able to tell me about the whereabouts of the one person. So we don't, subject to that we don't intend calling any other witnesses.

CHAIRPERSON: Thank you. Mr Brink is it your intention to call any witnesses?

MR BRINK: It is not my intention to call witnesses as such, but Mr and Mrs Biehl, who as you know are the parents of Amy Biehl are present, I understand Mr Biehl would like to make a statement. I don't know where he can be accommodate for record purposes because he will need a.....

CHAIRPERSON: Mr Biehl please make yourself comfortable.

&#9;STATEMENT BY MR BIEHL

&#9;Thank you Mr Chairman, members of the Amnesty Committee for taking a few moments to hear our statement.

&#9;We come to South Africa as Amy came, in a spirit of committed friendship, and make no mistake about it extending a hand of friendship in a society which has been systematically polarised for decades is hard work at times. But Amy was always about friendship, about getting along, about the collective strength of caring individuals and their ability to pull together to make a difference, even to transform corrupt nation states.

&#9;In her valedictory in high school graduation speech in 1985 Amy quoted biologist Lewis Thomas on the importance of collective thinking. Thomas said,

&#9;&#9;"The drive to be useful is encoded in our genes, but when we gather in very large numbers, as in the modern nation state, we seem capable of levels of folly and self-destruction to be found nowhere else in all of nature".

But he continues,

&#9;&#9;"But if we keep at it and keep alive we are in for one surprise after another. We can build structures for human society never seen before, thoughts never thought before, music never heard before".

&#9;This was Amy at age 18. This was Amy on the day she died. She wanted South Africans to join hands to sing music never heard before, and she knew this would be a difficult journey.

&#9;On 21 June 1993, just two months before she died, Amy wrote in a letter to the Cape Times Editor, she said,

&#9;&#9;"Racism in South Africa has been a painful experience for Blacks and Whites and reconciliation may be equally painful. However, the most important vehicle toward reconciliation is open and honest dialogue".

&#9;Amy would have embraced your Truth and Reconciliation process. We are present this morning to honour it and to offer our sincere friendship. We are all here in a sense to consider and to value a committed human life which was taken without opportunity for dialogue. When this process is concluded we must link arms and move forward together. 

&#9;Who then is Amy Biehl? Amy was one of our four children. Her sisters are Kim, who is now 31, Molly 27, and her brother Isak aged 20. We are very proud of all of our children and their accomplishments. But because Amy was killed in South Africa, because our lives have now become forever linked to South Africa we are here to share a little of Amy with you.

&#9;Amy was a bright, active child. She loved competitive sport such as swimming, diving, gymnastics among others. She played the flute, the guitar. She studied ballet. She was a focused student from the very beginning, always striving for straight A's. I'm going to read a page from Amy's high school journal so in her own words you can get a glimpse of her. This is Monday October 3rd 1983. She was 16.

&#9;&#9;"I have had more homework this year than I have ever had before. In lots of ways this has helped me because I have been forced to get organised and really dig in. But I have also been forced to stay up until 11:30 or 12:00 each night making me very cranky during the day. One thing that worries me is whether or not I will be able to keep this rigorous schedule up and still keep straight A's. Every night after school I have some activity to attend be it diving, band, flute or something else and starting in November I'll be swimming every day. I hate it when people say you should cut down your schedule, you're too busy, because I have already cut out several other activities. I'm kind of addicted to exercise and get very bored if I am not constantly busy. School is very important to me but being active and well-rounded are necessary for me to be happy. I want to have a 4.0, but I also want to be an award-winning drum major, first chair flute, a State champion diver, as far as I am concerned why can't I. I think I will be able to make it through this year. I am a very hard worker at everything I do, and as long as I know what I want I can get it. Besides getting a 90% on a Chemistry test makes staying up all night worth it".

&#9;Upon high school graduation she went on to Stanford University. It was her dream to do that. At Stanford she evolved as a serious student and she began to focus her academic work on the Southern African region. Her love of Nelson Mandela, as a symbol of what was happening in South Africa grew. 

&#9;After her 1989 Stanford graduation she made her first trip to Africa. I am going to read her Statement of Purpose she compiled for her Ph.D programme to bring her forward to August 1993. And she wrote this the summer of 1993 shortly before her murder.

&#9;&#9;"Statement of Purpose - Amy Biehl.

&#9;&#9;My purpose in applying for graduate study is to complete a Ph.D in Political Science. Within the field I intend to focus on recent democratic transitions in Southern Africa building on my previous research and practical working experience in this area. 

&#9;&#9;In September 1989 I received a degree in International Relations emphasising Third World development and Africa from Stanford University.

&#9;&#9;I completed a departmental Honours thesis on American Foreign Policy in South Africa entitled, Chester Crocker in the Negotiations for the Namibian Independence, the role of the individual in recent American Foreign Policy.

&#9;&#9;In May 1989 and subsequently received a Bowman Undergraduate scholarship to continue my research in Namibia from July to September 1989. My paper assessing the pre-election environment in Namibia was subsequently used at Stanford in its Modern African History course.

&#9;&#9;In September 1990, after a year of work for a Democratic Congressman on Capitol Hill I began work at the Washington based National Democratic Institute for International Affairs, NDI. NDI represents the Democratic Party internationally and conducts political development programmes in emerging democracies. With NDI I worked in Namibia, South Africa, Burundi, Congo, Giyana, Surinam and Zambia along with former President Jimmy Carter. 

&#9;&#9;I wrote briefing papers on six African countries for Democratic Party chairman Ron Brown, and coordinated a visit by the Prime Minister of Namibia to the 1992 Democratic National Convention.

&#9;&#9;I also wrote an article on NDI's approach to democratisation in Africa published in an international journal.

&#9;&#9;Based on my undergraduate research experience and my work at NDI I developed a proposal to research the participation of women in South Africa's transition for which I received in 1992/93 Fullbright Scholarship. 

&#9;&#9;I am currently based in Cape Town affiliated with the Community Law Centre at the University of the Western Cape, directed by Advocated Abdullah Omar. 

&#9;&#9;I am working with Bridget Mabandla, senior researcher at the Community Law Centre. At the Community Law Centre I have undertaken the following projects; researching comparative structures for women in decision-making; analysing the constitutional proposals and technical committee reports currently being debated with regard to women and gender; locating women within various political organisations and coalitions and assessing the impact of women within these organisations with respect to evolving transitional structures. 

&#9;&#9;I have written an occasional paper for the Community Law Centre focusing on structure for women in political decision-making. 

&#9;&#9;In a chapter on women in the transition for an upcoming book to be published in the United States I have co-authored articles published in the Weekly Mail, the Argus, Democracy in Action and Femina.

&#9;&#9;At the completion of my grant period I will present a paper entitled Women in a Democratic South Africa from Transition to Transformation".

&#9;I could go on but this was basically what she was doing and what she intended to do was to pursue a Ph.D in Political Science, teach and study about politics and particulary African politics.

&#9;Who is Amy to South Africa and what is her legacy here?

&#9;Linda and I were struck by photos which appeared immediately after Amy's death in the Los Angeles Times and other newspapers around the world, which showed Amy as a freedom fighter, and in subsequently reading President Mandela's autobiography, A Long Walk to Freedom, and determining how President Mandela and his colleagues value the role of freedom fighting, we were struck when on June 1st 1996 in Los Angeles, California, at a dinner to honour Chinese dissidents and freedom fighters from Tianamen Square, Amy was presented the Spirit of Tianamen Square Award, posthumously, for her reputation and track record as a freedom fighter in many countries on the continent of Africa. 

&#9;We think, in view of the importance of freedom fighting in our world this is a precious legacy of Amy for us. We think Amy's legacy in South Africa additionally is as a catalyst and perhaps her death represented a turning point in things in this country with specific regard to the violence which was occurring at the time.

&#9;We received literally hundreds of letters from South African citizens and I would read you just briefly from one which had to do with Amy as a catalyst in terms of the violence at the time.

&#9;&#9;"Dear Mr and Mrs Biehl..."

this is from an Eric van der Vyver of George, South Africa.

&#9;&#9;"Dear Mr and Mrs Biehl

&#9;&#9;Sometimes during one's lifetime something happens which is so unbelievably terrible and so very, very sad that one is left without words to convey the deep sympathy felt for family and loved ones. Your daughter's death has left millions of my country people feeling this way.

&#9;&#9;I am, however, completely convinced that August 25th 1993 will always be remembered as the day on which South Africa came to realise that we are leaning into an abyss of total self-destruction. Then Amy died and an entire nation took a step back. I hope and know that this will comfort you and please believe that what I am saying is true".

&#9;Amy's legacy is also as an advocate of human rights; an empowerer of women and children. Our beautiful women of mosaic who are seated here today and yesterday are a tangible evidence of Amy's legacy in South Africa. These women of courage work round the clock every day in the townships and informal settlements empowering and counselling women and children and enabling them to assume roles in the prevention of violence in their communities. Linda and I are very proud of mosaic and we can think of no more beautiful evidence of Amy's continuing legacy in your beautiful country.

&#9;Additionally Amy's friend and colleague, Rhoda Kadalie, who has now assumed the post, an important post in the Human Rights Commission, Amy would be very proud of that and very proud of Rhoda's and the Commission's continuing work to preserve human rights.

&#9;I would read to you briefly from a letter we received from Minister Dullah Omar dated on the 25th of August 1993.

&#9;&#9;"Everyone who knew Amy will bear witness that she worked untiringly in the gender research project to ensure that the issue of women's rights was prioritised on the agenda for a political settlement in South Africa. She was thus also highly regarded by all her colleagues and peers, both in Cape Town and indeed everywhere in the country for her diligence and commitment to the issue of women's rights.

&#9;&#9;We want to say to you that your beloved Amy became one of us in her spirited commitment to justice and reconciliation in South Africa. Amy's passing is not just a loss to the Community Law Centre, or University community, it is a loss for all committed democrats in this country. 

&#9;&#9;Despite the fact that Amy was often very busy she managed to prepare a briefing paper or two for me. This is how I got to know Amy, always willing to help. I will therefore personally miss her a great deal".

&#9;Finally Amy's legacy to South Africa is as a friend. I will read just quickly from a letter we received dated August 27 1993 from Randy Arenson at the Centre for Development Studies.

&#9;&#9;"When Amy left my office on Wednesday she said to me, 'hey if I don't see you, thanks for everything'. The next time I saw her I was removing her jewellery from her dead body. I shuddered for a moment as I put the blood-stained bangles and rings into my pocket and I thanked her silently for being my friend. 

&#9;&#9;I write to thank you and the rest of your family for giving Amy to us. I want you to know that she was a most sensitive and wonderful human being. 

&#9;&#9;When I first encouraged her to come to South Africa to study and when I wrote the recommendations for Amy to receive the Fullbright Scholarship, and when I introduced her to my colleagues at the University I knew I was doing so for somebody I really believed in.

&#9;&#9;Together we travelled through South Africa helping to prepare our people for the country's first ever democratic elections. She danced with us late at night in the townships. Amy was so full of the rhythm of life she danced better than many Africans and was greatly envied for her ability to imbibe so much of the culture, traditions and history of our people. 

&#9;&#9;Amy's death has brought home once again the potential beauty of this country to which she eventually gave her life".

&#9;Now in closing a few comments. We have the highest respect for your Truth and Reconciliation Commission and process. We recognise that if this process had not been a pre-negotiated condition your democratic free elections could not possibly have occurred. Therefore, and believing as Amy did in the absolute importance of those democratic elections occurring we unabashedly support the process which we recognise to be unprecedented in contemporary human history. 

&#9;At the same time we say to you it's your process, not ours. We cannot, therefore, oppose amnesty if it is granted on the merits. In the truest sense it is for the community of South Africa to forgive its own and this has its basis in traditions of ubuntu and other principles of human dignity. Amnesty is not clearly for Linda and Peter Biehl to grant. 

&#9;You face a challenging and extraordinarily difficult decision. How do you value a committed life? What value do you place on Amy and her legacy in South Africa? How do you exercise responsibility to the community in granting forgiveness in the granting of amnesty? How are we preparing prisoners, such as these young men before us, to re-enter the community as a benefit to the community, acknowledging that the vast majority of South Africa's prisoners are under 30 years of age? Acknowledging as we do that there's massive unemployment in the marginalised community; acknowledging that the residervism(?) rate is roughly 95%. &#9;So how do we, as friends, link arms and do something? There are clear needs for prisoner rehabilitation in our country as well as here. There are clear needs for literacy training and education, and there are clear needs for the development of targeted job skill training. We, as the Amy Biehl Foundation are willing to do our part as catalysts for social progress. All anyone need do is ask. 

&#9;Are you, the community of South Africa, prepared to do your part? In her 21 June 1993 letter to the Cape Times editor Amy quoted the closing lines of a poem, Victoria West, written by one of your local poets. We would close our statement with these incredible words.

&#9;&#9;"They told their story to the children. They taught their vows to the children that we shall never do to them what they did to us".

&#9;Thank you for listening.

&#9;-------------------

CHAIRPERSON: Thank you Mr Biehl, thank you Mrs Biehl. We have no doubt that the message that you have conveyed to us will reach the widest audience in this country and outside.

&#9;Mr Arendse - addressing the Committee?

ADV ARENDSE: Mr Chairman we have prepared some written submissions which have been typed this morning and which have now been faxed through. If we could just have a short break for about 10 minutes or so to go through them quickly.

CHAIRPERSON: Very well.

ADV ARENDSE: And I will hand you some copies and that should speed up the process.

CHAIRPERSON: It certainly will. Mr Brink?

MR BRINK: Do you wish to address you now? I think I should address you after ...(intervention)

CHAIRPERSON: Do you have any objection to us standing down for a short while?

MR BRINK: Oh no I would be delighted.

CHAIRPERSON: Very well we will take a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Arendse are you ready to begin?

ADV ARENDSE ADDRESSES THE COMMITTEE: Thank you.

&#9;Mr Chairman, and learned members of the Committee, before you there is written heads of argument as it were, which we would like to read back to you and I will elaborate as I go along. There are also a number of typographical errors but you will forgive us for that.

&#9;Mr Chairman, members of the Committee these submissions are made on behalf of the applicants and essentially the submission is that, on the fax before you, that the applications comply with the requirements of the Act, and that the Committee should properly grant them amnesty.

&#9;The applicants killed Amy Biehl on 25 August 1993 by stoning her and by stabbing her with knives. Her death was a tragic and shameful event and was described by the PAC as a mistake and as misguided conduct on the part of the applicants. 

&#9;The applicants are members of the PAC. They accept that they were wrong to kill Amy Biehl. They have said so under oath. They have said that they deeply regret it and that they ask for forgiveness. Amy Biehl's parents have said so movingly, and so eloquently before us this morning that they are prepared to forgive them. Who are we not to? 

&#9;They have shown understanding for the plight, the background and the circumstances of the applicants; their severely disadvantaged and deprived background which moved Amy Biehl in fact to come to this country to assist in empowering the underprivileged and the downtrodden; they understood their lack of educational opportunities; they understood their anger and their commitment to bring about change, albeit that it was in the case of the death of Amy Biehl, misguided.&#9;We ask this Committee to share this understanding shown by the Biehls this morning.

&#9;By way of background and understanding the conditions prevailing in the not too distant past we can do no better than to quote from passages of Chief Justice Mohamed, the spelling is wrong and I am sure that he will take umbrage in the wrong spelling of his surname and also that he is now the Chief Justice of course, as he then was he was the Deputy President of the Constitutional Court. 

&#9;Now these passages so eloquently captured in the AZAPO judgment and that judgment is at 1996 (4) SA 671 Constitutional Court, because really I want to do this Mr Chairman because there is no evidence before you, and in my own understanding I just want what he is saying here to be common cause amongst all of us here today. He says,

&#9;&#9;"For decades South African history has been dominated by a deep conflict between a minority which reserved for itself all control over the political instruments of the State and a majority who saw to resist that domination. 

&#9;&#9;Fundamental human rights became a major casualty of this conflict as the resistance of those punished by their denial was met by laws designed to counter the effectiveness of such resistance. 

&#9;&#9;The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever increasing hostility of an international community steadily outraged by the inconsistency which had become manifest between its own articulated ideals after the Second World War and the official practices which had become institutionalised in South Africa through laws enacted to give them sanction and teeth by a Parliament elected only by a privileged minority. 

&#9;&#9;The result was a debilitating war of internal political dissension and confrontation, massive expressions of labour militancy, perennial student unrest, punishing economic isolation, widespread dislocation in crucial areas of national endeavour, accelerated levels of armed conflict and a dangerous combination of anxiety, frustration and anger among expanding proportions of the populace. The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation".

ADV DE JAGER: Sorry to interrupt you but I see people in the audience, what you have been reading they are trying to interpret that to the audience and I think you are going too fast, they can't keep up.

CHAIRPERSON: Counsel is reading from a judgment of the Supreme Court and it's important for the members of the Committee and the applicants. The audience will have to listen to the rest of your argument.

ADV ARENDSE: As the Committee pleases, Mr Chairman.

ADV ARENDSE: 

&#9;&#9;"During the eighties it became manifest to all that our country, with all its natural wealth, physical beauty and human resources was on a disaster course unless that conflict...."

which was described by Chief Justice Mohamed above, 

&#9;&#9;"....was reversed.

&#9;&#9;It was this realisation which mercifully rescued us in the early nineties as those who controlled the levers of State power began to negotiate a different future with those who had been imprisoned, silenced or driven into exile in consequence of their resistance to that control and its consequences. Those negotiations resulted in an interim constitution committed to a transition towards a more just defensible and democratic political order based on the protection of fundamental human rights. 

&#9;&#9;It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated, and that this could not be achieved without a firm and generous commitment to reconciliation and national unity.

&#9;&#9;It was realised that much of the unjust consequences of the past could not ever be fully reversed".

&#9;And then Mr Chairman he goes on to deal with the fundamental philosophy which underlines this whole amnesty process.

JUDGE WILSON: Is this all in paragraphs 1 and 2?

ADV ARENDSE: 1, 2 and 3.

JUDGE WILSON: Oh.

ADV ARENDSE: If I may just continue then back to my heads paragraph 4.

&#9;The Act seeks to address the massive problem of trying to come to terms with our past by providing an incentive to wrongdoers to come forward and make full disclosure of what they have done wrong. Their reward is that they will not receive punishment which they undoubtedly deserve.

&#9;The applicants have already been found guilty and have been sentenced, but during the trial they denied that they killed Amy Biehl. This amnesty process has encouraged them, the word "not" must be deleted Mr Chairman, this amnesty process has encouraged them to come forward and admit their guilt. The effect of this must not be underestimated however painful it must undoubtedly have been for the Biehls the applicants' confessions have manifested their accountability and have contributed towards, albeit only in the beginning stages, of this nation of ours that this healing process.

&#9;We respectfully submit that the amnesty process is aimed at understanding, and we wish to underline that word, it is not aimed at condemning. I may add here that it was significant for my colleague and I that even during this process which we have been through up to now that a clear divide has manifested itself by those of us in this room who are asking questions, seeking to understand what happened during the Amy Biehl murder and what the underlying causes were, and those of us who are seeking to condemn.

&#9;We submit, with respect, that this latter approach is clearly wrong and in fact unconstitutional. The epilogue to the interim constitution which gave birth to the Act clearly sets out the parameters within which amnesty must be granted. If I could just read the relevant paragraph Mr Chairman.

&#9;&#9;"In order to advance such reconciliation and reconstruction ..."

sorry, just before I read that paragraph, just the one preceding that. After the epilogue deals with the strife and the divisions of the past it goes on to say the following:

&#9;&#9;"These can now be addressed on the basis that there is a need for understanding but not for vengeance; a need for reparation but not for retaliation; a need for ubuntu but not for victimisation.

&#9;&#9;In order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past".

&#9;And then the epilogue goes on to enjoin Parliament to enact a law which will provide mechanisms for that and hence the establishment of this Committee. 

&#9;Just back to my heads Mr Chairman, paragraph no.7. The Act itself in Section 20 requires this Committee to satisfy itself that three conditions are met before granting amnesty. The section reads as follows:

&#9;&#9;"If the Committee, after considering an application for amnesty, is satisfied that;

&#9;&#9;a.&#9;the application complies with the requirements of the Act;

&#9;&#9;b.&#9;the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections 2 and 3;

&#9;&#9;c.&#9;the applicant has made a full disclosure of all relevant facts;

&#9;&#9;it shall grant amnesty in respect of that act, omission or offence".

&#9;Now we submit Mr Chairman that subject to the promulgation of the later cut-off date of 10 May 1997 the applicants, except for Manqina, comply with this requirement. This is a formal requirement and we submit is not in issue.

&#9;Secondly, as far as the offence itself is concerned the offence must have been an act associated with a political objective and we submit that this is the crucial issue which we should be grappling with.

&#9;Thirdly, we submit that the applicants have made full disclosure notwithstanding some minor differences, we submit some minor differences of detail with State witnesses as they gave evidence at the criminal trial, and we submit that this aspect too is not in issue.

&#9;To revert to the issue of the political objective. The political objective must be established by reference to subsections 2 and 3 of Section 20. In this regard we submit that there is no dispute that the applicants are members of the PAC and except for Ntamo, are members of PASO. Ntamo we will recall said that he was a supporter of PASO.&#9;The evidence also reveals that they were active supporters of APLA. So that we submit that Section (2)(a) and (2)(g) have been complied with.

ADV DE JAGER: Mr Arendse would you submit that Section 20(a) has been complied, would you say they acted on behalf of or in support of the PAC or APLA?

ADV ARENDSE: In support of, in that respect. However, however misguided or mistaken that support was, we would submit that they did, they believed that they did and I go on to submit that that is the test. It's a subjective test, what they believed. If they believed that they acted in pursuance of the objectives or the goals of a political organisation to which they belonged then, unless it's so outrageous and so out of consonance with the facts, that this Committee must accept that as a fact.

ADV DE JAGER: They in fact, if I am correct, said that they've been acting on orders of or as a result of speeches made by representatives of the party.

ADV ARENDSE: That's correct.

ADV DE JAGER: I find it somewhat disturbing that political parties being mentioned in this respect wouldn't come forward, or representatives, and it's not only in this case it's in other cases too, to explain or to accept the responsibility for what their followers have been doing as a result of what they have advocated.

ADV ARENDSE: Well with respect Advocate de Jager there is in the record, I think at pages 36 and 37 some extract of submissions made by the then President Mr Makwetu before the TRC, although issuing a disclaimer and saying that the applicants were not acting under the orders or the instructions of the PAC and in fact saying to the TRC that it was a mistake and that the actions were misguided. But having said that the PAC then goes on to say in its submissions that they support the applications for amnesty. So I think in that sense they do implicitly support the applicants but distance themselves from the actual act of murdering Amy Biehl.

CHAIRPERSON: I think the distinction should be drawn between they acted on the orders of their organisation or were inspired by the speeches, not they were not ordered to do what they did. When they heard those speeches it may have moved them and inspired them to do what they did. I don't think it can be said they did what they did on the orders of those that made the speech, or their political party.

ADV ARENDSE: Yes. I think ...(intervention)

CHAIRPERSON: That's the point isn't it?

ADV ARENDSE: Yes, that's correct Mr Chairman.

JUDGE WILSON: But I agree with Mr de Jager in that the representations allegedly made by the PAC don't really deal with the matter do they, they try to avoid it by saying "this act occurred in the context of a strike for recognition by the South African Democratic Teachers Union", in other words they push it away from the PAC rather than come and say it was a meeting addressed by PAC members, which is I think the point Advocate de Jager is making, that it is regrettable that where political parties in the past have adopted a certain attitude that they should not come forward and support their members by saying, yes, that's what we did.

ADV ARENDSE: Yes, I share that concern and it appears to apply across the board, not only the PAC.

JUDGE WILSON: Mmm, it's not just one, it's a general feeling that ...(intervention)

ADV ARENDSE: They kept on politicking even when they appeared before the TRC.

CHAIRPERSON: I think you are pitching your case at the level that they were not acting on the orders of their organisation, they did what they did as a result of having been moved or inspired by what they heard or what the interpreted what they heard to mean.

ADV ARENDSE: Ja, why I say that, and why we submit that the subjective test must be applied is that it's a notorious fact that we were in an abnormal situation where in fact for many years political parties couldn't hold meetings. We spoke about the difference here between policies and slogans, I think, with respect, that yes, it's relevant clearly, but that's where it must stop. Political parties didn't have regular meetings. 

&#9;I think by far the majority of supporters of the PAC or the ANC for that matter, a lot of them can't even read or write, so there's no question of having a constitution and actually knowing what the policies were. People acted, supporters acted on what they heard and what was told to them. Often speeches were made, inspired people, purported to put the policy of the party and it was clearly wrong. But the unfortunate fact of the matter is supporters would then leave such a meeting, and we would submit this was such a case, under a mistaken or wrong impression and went out and did what they thought they were now being told to do or inspired to go and do.

JUDGE WILSON: Isn't it also notorious, I think certainly it's been experienced by all of us who have had the misfortune of attending political meetings in the past, and I go back a long time in this, if the speaker feels the audience is with him the speaker may well get carried away and say things in the course of his speech which are not strictly speaking his party's policy, and which once he sobers up afterwards he regrets having said but in the heat of the moment he says them. And this is one of the things that may have happened here, that it wasn't strictly speaking party policy but when the speakers felt that they had hundreds of young students listening to every word they said that the speakers may have rashly said things which caused the listeners to believe they were being told something that wasn't really so.

ADV ARENDSE: I am glad Justice Wilson shared that experience when he was younger, that contributes towards understanding the situation in this case.

&#9;Mr Chairman if I may just proceed. Then we say that what remains for this Committee is to consider the political objective with reference to the criteria which are set out in Section 20(3). Now these criteria, it is our understanding, my colleague Nona Gozo and I, that these criteria must be looked at cumulatively. One shouldn't isolate one and if you don't overcome that hurdle then you are knocked out as an applicant. And that seems to be clear from a bundle of decisions which we have looked at which have been issued, handed down by this Committee.

&#9;Now we deal with the motive and we submit that the motive was clearly political. The motive we say must be established by reference to the applicants' own belief and not by some objective test under what one can call 'laboratory conditions' where we sit in 1997 and look back and in a rational, objective way in this room, with the benefit of hindsight and now we find, no, your motive was misguided, it was wrong. We submit that that is not the approach that must be taken by this Committee. That approach is fraught with danger and must be avoided in fact by the Committee. Because if you do that, with respect Mr Chairman and Committee members, then you run the risk of then judging their conduct and what they did against some standard, perhaps of some other political party or political organisation, and we say with respect, that is not the function of this Committee. It is quite possible in doing so that you may find that no, you should have adopted the standard of the ANC, or you should have adopted the standard of the NP or some other party.

&#9;We say that ...(intervention)

CHAIRPERSON: We don't have standards before us of political parties.

ADV ARENDSE: Then we say that that should stay like that, that there shouldn't be any standards by which their conduct is judged.

&#9;Then I just want to add that it is an historical fact that our past is littered with irrational conduct motivated by political ideology, and it's quite perverse but is nevertheless an historical fact, that it is such conduct which has brought us into the situation we have today. Fortunately ...(intervention)

ADV DE JAGER: So do you submit that we shouldn't follow the standard of the reasonable man, how he would have reacted to things?

ADV ARENDSE: No that will be problematic because Mr de Jager the reasonable man on the Clapham omnibus in London, or do we talk about the man on the bus in Guguletu at the time? We would submit that if you do adopt the reasonable man approach you take the one in the bus or the train in Guguletu at the time. If you adopt that approach then the applicant should get through on that. But the problem is with that approach is that you then begin to make valued judgments and that should be avoided. That is why we say that if on the facts and if it's not so unreasonable, if it's not so unreasonable then what the applicants are saying and what motivated them, that that must be believed and that must be accepted.

JUDGE NGOEPE: Mr Arendse your argument sounds only if you distinguish, as you must in my view, you must distinguish between motive in the sense of a criteria to be taken into account, and on the other hand the question whether or not an act is associated with a political objective. These two things are different. &#9;Motive is always of course to be tested subjectively, there's no argument about it, and we will do that, but only, and only when we take into account the motive. But you take into account the motive among other factors. You take motive into consideration in determining whether or not the act is an act associated with a political objective. At that level we don't apply the subjective test, we graduate on to the objective test.

ADV ARENDSE: Yes.

JUDGE NGOEPE: The overall question which must be answered by your client is, or rather what they must indicate to us is that their act is an act associated with a political objective, not that they acted with a political motive. There is a difference between the two. When we apply the criteria here to determine whether or not the act is an act associated with a political objective, at that level we don't apply the subjective test, we apply the objective test. Just keep these two concepts apart.

ADV ARENDSE: Yes, yes I think that's.

JUDGE NGOEPE: Because if you don't distinguish between these two concepts you are going to apply a wrong test, you are going to apply wrong tests to these two different things.

ADV ARENDSE: Yes. I think I go on to deal with that distinction which Judge Ngoepe quite rightly points out.

&#9;Then the other criteria of Section 20(3) is the context in which the offence took place, and we submit that the context was clearly in the context of a militant student uprising. 

&#9;The evidence in this regard is quite clear. This was in fact confirmed by the State witnesses, who during the trial testified about toyi-toying, chanting, sloganeering, One Settler, one bullet, and I think they also mentioned Kill the Boer, kill the Farmer which also seemed to indicate, as I just think about it now, that there may even have been COSAS students in that group, because that is a slogan which I think is a notorious fact that it is not associated with PAC and PASO. So if their evidence is to be believed, and there is no reason now that it shouldn't, that it would also appear that there was a mixed group of people.

&#9;It's very interesting and quite revealing Mr Chairman that in fact the passengers in the Amy Biehl vehicle themselves recognised that they were in a volatile political situation when they implored those in the crowd that they shouldn't kill Amy because she is a comrade.

JUDGE WILSON: Now isn't that a very important factor, it's one which I only appreciated I think when I read your heads, that they did do that, they must have realised that they were talking, or they must have thought that they were talking to a political group and, perhaps more importantly, to a political group which would have regard to comrades, that something that had happened, something that had been said by the behaviour of the group alerted them to the fact that this was politically inspired. 

&#9;That's a very strong indication, isn't it, that although they may have been acting completely wrongly insofar as the real aims of their party were, they were behaving in a way that made it appear that they were doing it for party political purposes?

ADV ARENDSE: I would respectfully agree with that observation Judge Wilson.

JUDGE WILSON: Because they both talked of "comrade" didn't they, both the women?

ADV ARENDSE: Ja.

JUDGE WILSON: And the one I think says she specifically - 

&#9;&#9;"Telling them to leave the deceased alone as she was a student and a comrade by which she meant she was a member of the same organisation, the National Womens Coalition". 

It wasn't comrade in any loose sense of the word but the political meaning of comrade.

ADV ARENDSE: Yes. On to paragraph 8.5 then Mr Chairman. 

&#9;We say that undoubtedly this was a dastardly and dark act which constitutes a gross violation of human rights which we say in normal circumstances would warrant the maximum penalty. There is no doubt about that. However, our constitution and this should be the interim constitution, and this amnesty process under the Act, recognises that as at the 25th of August 1993 we were not living in normal circumstances in this country. We were ruled by a White minority, although negotiations were under way and the White minority government's authority had become increasingly undermined, the fact remained that we were being ruled by a White minority. 

&#9;We also know, these facts are also notoriously well established Mr Chairman that at times we had to hold our collective breath as we would hear from Kempton Park whether or not a particular deal had been struck. So everything was very much in the balance. And I would submit that this kind of uncertainty gave impetus to what was happening in the townships. The government of the day had lost complete control of what was happening.

CHAIRPERSON: What was the uncertainty if they had lost complete control, there can't be any more uncertainty?

ADV ARENDSE: The uncertainty of where their future lay. It's just in regard to a possible argument that - well not an argument, an observation that ja, but you were aware that people were talking. It's like a strike, like a labour strike, people are negotiating but you are still going on strike and killing and injuring people. Why didn't you await the outcome? I am just saying that the outcome, even though people were talking at Kempton Park that outcome was fraught with uncertainties.

CHAIRPERSON: Well I am not too sure whether you are not doing an injustice to your case. You know it does seem to me either that at that stage it was recognised that political power had moved away from where it was, what was being negotiated was how change should take place. It was recognised that political power had passed, it's a question of how to manage it now. And at that stage when all this was happening this event occurs. This event occurs because they want the White man to give the land back. 

&#9;Now I want to know from you whether at that time, and at that stage they genuinely believed it was necessary to kill because they wanted the land back, bearing in mind that they knew that political power is now passed, what was being negotiated was how to manage the country in the future?

ADV ARENDSE: Mr Chairman I can only answer that by my own general knowledge and understanding of what I recall at the time, and that is that the PAC had always been a reluctant party to the negotiations at Kempton Park. They were far from happy with the kind of deals that were being struck especially between the ANC and the National Party government. It is quite conceivable that party leaders, party officials, like what happened on the 25th, were still encouraging their supporters not to become complacent, not to take things for granted and continue the struggle in way in which they were being told to do, and that is to make the country ungovernable. There is still - I won't say anymore.

MS KHAMPEPE: And isn't it true Mr Arendse, that from what the applicants have stated in their evidence there was this Operation Great Storm which had just been adopted by the PAC which then would give them an impression that the struggle had to be intensified, notwithstanding the fact that there were negotiations at Kempton Park?

ADV ARENDSE: There's a perfectly valid observation Ms Khampepe.

JUDGE WILSON: My memory is also failing me here, was the PAC ever a supporter of the idea of a coalition government?

ADV ARENDSE: In principal, no.

JUDGE WILSON: What they saw happening was the ANC and the Nationalist Party were organising things to safeguard their futures and they were going to be left out in the cold and isn't that why they embarked on Great Storm? That they felt there should be more change brought about at this time than allow the Nationalist Party to give away some of its power but to remain in office?

ADV ARENDSE: I think that is correct Judge Wilson. The PAC had always been uncomfortable with that process, but they had to act as a responsible political party and hence the divergence which you find in fact, if you read and analyse Mr Makwetu's statement to the TRC and distancing themselves, it was that very sensitive balancing act. You know we go in politically, we negotiate, but on the other hand we will intensify the struggle through our armed wing, APLA, but when something happens we, as a political party, we are going to say no, it's not us, we are not responsible, and that's perfectly understandable I would suggest in the circumstances at the time.

ADV DE JAGER: We had the attack on the St James Church a month before, less than a month before and afterwards the attack at King William's Town at the golf club and the Heidelberg attack also afterwards, so it was at that stage, as far as the PAC was concerned, still a volatile period.

ADV ARENDSE: Yes. Thank you Mr Chairman.

&#9;Now we say that as far as the conduct on the 25th of August 1993 is concerned that the constitution and the Act recognises that amnesty be granted for acts committed covering that period because the cut-off date in the constitution and in the Act is the 5th of December 1993 and I think it has subsequently been extended.

&#9;We say that the objective of the offence was directed at Amy Biehl purely because she was White. We can't run away from that and we are not here to justify the acts of the applicants, but we submit ...(intervention)

JUDGE NGOEPE: I am not sure whether that is what the applicants say, as I understand them. Because they added an important statement to that, they attached something important to that which explains why they are not killing Whites today, and they would kill them today.

ADV ARENDSE: I am coming to deal with that but in a ...(intervention)

JUDGE NGOEPE: Then you may not say that they killed her purely because she was White.

ADV ARENDSE: Then perhaps we should qualify that.

JUDGE NGOEPE: Yes, I think they said that, or at least some of them, they killed her because she was White, because they targeted Whites, because it was the White people who had taken the land away from the Black people.

ADV ARENDSE: Yes.

JUDGE NGOEPE: That is an important statement because it explains why you kill a White person. You don't kill him purely because his colour seems to be white, you kill him because in fact he had taken the land from you. So that sentence therefore doesn't, to me doesn't seem to be doing some justice to the ...(intervention)

ADV ARENDSE: Well I agree it requires qualification and I think with respect it's done later on in the same paragraph. But it is clear, and I think it follows on the questioning and the point made about Joe Slovo that had anybody who was White, except for someone like Joe Slovo, if they could remember what he looked like, that that person would have been killed, purely because that person was White. I don't think we should, you know, we should run away from that. That was the fact. 

&#9;There was this sort-of blanket instruction that because the White people, regardless of whether they were comrades, whether they were members of some other political organisation and were on the right side, as it were, of the political struggle, that that particular day that would have been the fate of that person and unfortunately it was Amy Biehl, notwithstanding what we now know what her impeccable credentials were.

JUDGE NGOEPE: You must put your argument on a proper footing Mr Arendse, because I doubt whether the Constitution or the Act says that we must give amnesty to racists. You must put your argument on a proper footing.

ADV ARENDSE: Well with respect it is put in a proper footing Justice Ngoepe, it's put in its context and I'm dealing with that as I am speaking ...(intervention)

JUDGE NGOEPE: So you are saying that your clients killed these people purely because they were White ...(intervention)

ADV ARENDSE: But we are qualifying that ...(intervention)

JUDGE NGOEPE: And you are saying that it is not for this Committee to condemn the applicants because of what appears to have been a racial killing, why can't we condemn somebody who has committed a racial killing?

ADV ARENDSE: Because the motivation was ...(intervention)

JUDGE NGOEPE: The whole question of racism is against this whole spirit of the Constitution. This Constitution is against every spirit of every suggestion of racism in whatever form. This Constitution cannot, in any measure, promote racism in any way.

ADV ARENDSE: It doesn't promote racism, clearly it doesn't, in fact it has a Bill of Rights which is anti-racism, but it's a fact that we have to confront and that we have to address that our past was based on race, people's response, and I would submit the applicants' response on that day, was based on racial categories. &#9;There is no need - there is in fact not a conflict between this Committee finding that it was, for example, a racial killing and granting amnesty, so that we can reconcile ourselves with that dark past and look forward to a non-racial future.

JUDGE WILSON: But isn't what my brother is saying, and I agree with him in this, that it wasn't racialist as such, it was a certain group had taken their country from them, they wanted that group to hand the country back, that group happened to be White. It's not racialism in the sense we don't like Arabs, so let's kill every Arab we see, because that is pure racialism which cannot be tolerated. They are not killing here because they are White, they are killing here because they are seen to be members of the community who took the country away from them, isn't that what you are saying?

ADV ARENDSE: Yes.

CHAIRPERSON: But really they are killing Whites because they are Whites, all Whites, whether those Whites took away their land or not.

ADV ARENDSE: Yes.

CHAIRPERSON: So they are killing Whites because they are Whites, that's what happened.

JUDGE NGOEPE: But if they had not taken the land they wouldn't be killing them even if they were White.

ADV ARENDSE: Yes.

CHAIRPERSON: But whether they took the land away or not the point is that they are killing Whites, isn't that the position?

ADV ARENDSE: It's, let me put it this way. I make the - which has now caused this controversy, the statement is made in a particular context. It is not without context and not without any qualification and that qualification is made in the same paragraph as my heads, it is White people who took away the land, according to the applicants, and it is White people that had to be killed so that the land can be returned. So the racial connotation is quite clear and quite obvious, with respect. 

ADV DE JAGER: Mr Arendse can't we in truth go further. Political rights were based on the colour of skin, and I think we are ignoring an important factor, and we are not coming to the truth if we want to say everything is racism if that's racist that was the reason for what's been happening in South Africa, and we should face that and we should deal with it, and I think that in fact we had a Black/White war at a stage, or we were on the verge of a Black/White war, a colour war, and fortunately that's been avoided.

ADV ARENDSE: Yes.

MS KHAMPEPE: But Mr Arendse I understand what a member of my Committee has said to you, but in this case, dealing with PASO, the slogan which was One Settler, one bullet, and also what we know to be common cause, that the PAC stood for the return of the African land, would you still say the applicants went out to kill Miss Biehl purely because she is White? Or would you qualify that to mean the killing was directed at her because she represented that which they believed was responsible for their dispossession of the land?

ADV ARENDSE: Miss Khampepe if we look at the facts, I don't want to start being uncomfortable with my own submission, but I am increasingly feeling like that, but the fact of the matter is that that day, and this is what incited them with the slogan, is that anybody with a white skin represents that which is reprehensible to them, and that is the dispossession of the land. So logically if they come across anybody with such a skin, irrespective of whether that person is the kind of calibre of person that Amy Biehl was, or was a Joe Slovo for that matter, that person would have borne the brunt of their anger that day. Now that is race-based. The distinction that I am making it was race-based, but it had a political motivation, the objectives were political, i.e. we want the land back. When we kill White people, when we kill a White person, we are going to bring the government to their knees, we are going to make them, as I think Mr Biehl said in his submissions, we are going to make them take a step back, or I think it was from a letter which was read from George, 'take a step back and say is this really worth the candle that we as a minority should continue to run and govern this country'. It is to make them realise. So the objective was a political objective. But that day clearly, if you were a White person and you came across the two groups then you would have borne the brunt of it. And in that context I don't think you can draw any other conclusion. I think we must confront that fact.

CHAIRPERSON: Do carry on.

JUDGE WILSON: Sorry, can I just come in here, does it go back to be racist that all Whites were settlers in this land, they were not indigenous to the land, all the Whites were settlers, and you wanted to purify the country by getting rid of these settlers?

ADV ARENDSE: No, and that is where the crucial distinction I think, I can't speak with any authority for the PAC or in fact for the applicants, but my understanding was that that, and I think Manqina said that in his evidence, that we will go on to kill White people until our land is returned to us. So there was a sort-of cut-off point. So in that sense it wasn't then purely racial. It was accepted that White people who were born here are part, are also Africans, but as a minority they cannot be in control of 80 odd percent of the land. That is inherently unfair, it's discriminatory and until that situation is reversed we are going to kill them. So to an extent yes, it was based on race. Our past is based on race. We were categorised on the basis of race. We were all raised and brought up, the applicants were in any case, they were told in no uncertain terms by where they were staying, on the train that they were getting, and the schools that they were going to, the pathetic education that they were getting, that they are Black and they must know their place as they say. So ...(intervention)

JUDGE NGOEPE: Mr Arendse to, sorry to interrupt, the whole debate arose because of the sentence that you started off and I asked you a question in relation to it, and I am going to, if you don't mind, to enable myself to understand the argument better, I am going to read that sentence as if the word "purely" does not exist, because I understand you better if I take out the word "purely" because she was White. If you say she was killed because she was White, that's one thing. But to say she was killed "purely" because she was White is a different thing.

ADV ARENDSE: I accept that and I ...(intervention)

JUDGE NGOEPE: You don't mind if I ignore that word to be able to understand you better?

ADV ARENDSE: Can I delete the word "purely"?

JUDGE NGOEPE: No you may not delete it, but just tell me you don't mind if I don't - okay you can go on.

ADV ARENDSE: I think my colleague, Advocate Nona wants to say a few words.

ADV GOZO: Thank you. This whole process, if I may submit to the Committee, this whole process that we are involved in now is as a result of a particular statute, the Promotion of National Unity statute, and the requirements that are laid before us by that statute are that there must have been a political objective and we are submitting that there was a political objective. The background to that has been sketched out in the evidence that has unfolded before the Committee.

&#9;Having made those submissions we would like to submit as follows, that the word "White" as used in the argument should be seen against the larger background of the context in which the event took place, and that, amongst others, includes the fact that any White person who would have been around the township at that time, his life would have been in danger. 

&#9;And the White person that is being referred to here is the White person who would be seen, I am going to the point raised by Justice Wilson, whether the applicants genuinely believed in their own mind, and we are submitting that any White person would have been seen in that - who had appeared in that scene against that background and in that particular context, his life would have been in danger because at that time applicants believed, would have believed and did in fact believe that the White person represented a group of people that was in control of the land that they had to give back. 

&#9;Now in retrospect in the case of Amy, because of the high calibre kind of person that she was, that this particularly happened, in retrospect, is unfortunate, but if we look at the criteria that is set down by the Act whether there was a political objective or not, certainly this particular act does not fall into the category of what could be described as a mindless, senseless killing. There was a political objective criteria.

&#9;Now any interpretation that is given to the word "White" in this context would then take it out of context. Everything has to be seen against that background towards the fulfilment of that criterion of a political objective.

ADV ARENDSE: Mr Chairman if I may proceed. And since, with respect, Judge Ngoepe these heads belong to us we will unilaterally take the word "purely" out because it seems to be contradicting the kind of context in which we are trying to place the submission, with respect.

&#9;Now we say that if the applicants are condemned then it would be ignoring the realities of our past and what actually happened. There was a huge anti-White feeling that day. The One Settler, one bullet slogan, the militant political speeches, the shooting of the applicants by White policemen and even by passers-by, and the fact that the country continued to be ruled by a White minority, continuing to oppress Black people in this country, the applicants felt that they were, at that stage, being condemned to a futile and meaningless existence. They decided to literally take their future into their hands,in doing so they unfortunately came across, or Amy Biehl came across them and we know what happened.

&#9;The applicants gave evidence that the speakers incited them. These speakers gave them orders to "make the country ungovernable", the applicants understood this to mean, amongst other things, go out, kill, injure or maim White people. They believed, in their minds, that this was their instruction. They supported APLA and they were told to prepare the groundwork for APLA.

&#9;Now the relationship between the murder of Amy Biehl and the political objective pursued and the proportionality of the objective pursued does present a problem. However, we submit, it is clearly apparent that having regard to the history of our country that individual and separate acts of human rights violations brought us where we are today. That is the unpalatable truth. 

&#9;The proportionality of the murder of Amy Biehl cannot be seen in isolation. At this stage I want to pause and compare this with the Brian Mitchell application which was granted by this Committee. In that case Mitchell sent out the task force to go and kill and destroy a shack full of people. After that it emerged that they had gone, on the evidence, that they had gone, I think Justice Wilson obviously knows the facts better than any one of us here, so I speak under correction, the Trust Feed case, and it emerged that the wrong people were targeted and killed. And in that case this Committee granted amnesty.

&#9;Now if in isolation one looks at that then one can hardly say that the act that was there committed was proportionate to the objective that was to be achieved. In fact in that case the objective was totally was totally missed, they got the wrong people. And in that case this Committee, in its wisdom, granted Mitchell, and we submit quite correctly, amnesty.

CHAIRPERSON: In that case the distinction was between two differing political views amongst Black people. It was the aim of the government and the authorities to assist one section of Blacks to kill another section of Blacks, unfortunately when it happened the target they aimed was wrong, they killed their own people. Now I don't think that that case helps you at all in this case here, because you aren't really equating your client's conduct against the political beliefs of the person they killed. This is a question of race and not political beliefs of two different parties, you know, so whatever assistance you may seek from the Brian Mitchell case it can be very little.

ADV ARENDSE: With respect, clearly the two cases are vastly different, the facts are completely and totally different, but we say - I only mention this in the context of the proportionality argument. I only mention it in that context for what it is worth. And if you, Mr Chairman, in your wisdom say it's not worth anything, then I leave it there.

&#9;Now we submit that the issue of proportionality cannot be seen in isolation. If we do then we will be condemning the applicant and not understanding them and what gave rise to their conduct. Clearly the murder of Amy Biehl would not bring about immediate and overnight change in this country but this was part of a process. Advocate de Jager quite correctly pointed out that before that and after that operation, clearly it was, I think we can safely assume, part of operation Great Storm, Heidelberg, St James, Queenstown and various other places, that it was part of that process of making the country ungovernable. In fact I think Ms Khampepe correctly pointed out it was at that stage an intensification of the struggle as far as the armed wing of the PAC was concerned. 

&#9;Now unfortunately as my colleague pointed out Amy Biehl was caught up in this process and in a perverse way we now know that her name will go down in history as having contributed largely to the democratic present that we have today and to our future.

&#9;I just threw in the evidence of Manqina because he kept on saying and it did bother us that he killed Amy Biehl and if I may just get my thoughts - thank you. My colleague Miss Gozo just refreshed my memory, it was in the context of questions coming quite appropriately from my colleague Mr Brink and from Committee members, how on earth could the killing of Amy Biehl or one person achieve the objectives of getting you the land back? And Mr Manqina kept on saying yes he would. 

&#9;But it's important to also place, to take his evidence further which also appears in a sense to have contradicted, not in a material way his evidence, and that is that he said they would continue to kill White people until they got the land back. Now implicit in saying that he was saying that yes, I accept that the killing of Amy Biehl, if it didn't get the government to sit up and take notice as it were, we would just continue to do so.

CHAIRPERSON: Then the killing of Amy Biehl was totally disproportionate isn't it?

ADV ARENDSE: If you isolate it, then it would appear to be the case, but we are submitting that it is crucial to the work of this Committee and to this particular case that it must be placed in a context, because as I said earlier ...(intervention)

CHAIRPERSON: I am trying to understand what that means because I am beginning to think is that what you are really saying is that we should ignore subparagraph F, simply because it presents you difficulties.

ADV ARENDSE: It does and ...(intervention)

CHAIRPERSON: And that's what you are really saying that we should really ignore it and look at the other requirements of the criteria?

ADV ARENDSE: And that is why we said that each, and our submission is that each criteria mustn't be looked at in isolation and if the Committee finds that you knocked out on one that that's the end of your case and you are refused. All the criteria must be looked cumulatively and together, and at the end of the day the Committee exercises a discretion.

CHAIRPERSON: It's a question of giving appropriate weight to the evidence, isn't it?

ADV ARENDSE: Yes, with respect yes, Mr Chairman.

JUDGE NGOEPE: Mr Arendse surely, I don't know why that would give you so much problems. I think not even the most stupid person in killing Amy Biehl would have believed that just the killing of that one person in Guguletu on a Wednesday afternoon could change the world, could change the country. That can't have surely been anything like that in anybody's mind. Your submission is that it must not be considered in isolation as to whether, or in answering the question whether or not her death could have meant anything, her death must not be considered in isolation but in collaboration with all other things and if you like, in collaboration with other killings.

ADV ARENDSE: Yes.

JUDGE NGOEPE: Because otherwise I mean we will sit in Cape Town, somebody will apply for amnesty in respect of one killing, we turn down his application, we said well the killing of one person can't bring any change. Next week we sit in Pietersburg, somebody brings an application in respect of one murder, we turn it down, we say one murder cannot bring about any change, and we go on turning down thousands of killings on that same basis.

ADV ARENDSE: Yes, that observation is perfectly correct, and then you find you end up with the logical and perverse situation that you must actually kill as many people as possible to make it proportionate for your objectives and that is ...(intervention)

JUDGE NGOEPE: Or in fact not granting any amnesty if murder was involved.

ADV ARENDSE: Yes, yes. And then we just make the last few points Mr Chairman, that it is clear and it is not challenged that the applicants did not kill her for personal gain or out of personal malice or ill-will or spite. They were part of a group of people, an immediate group of 8 to 10 people and also part of a larger group of between 80 and 100 strong. They were egged on, they were encouraged by this big group. 

&#9;So in conclusion Mr Chairman, we submit a proper case has been made out for amnesty to be granted in this case. 

&#9;Unless there are any further questions those are our submissions.

JUDGE WILSON: One question on your last submission which I was going to ask Mr Brink, but I will ask you first and he can then deal with it as well. 

&#9;There has been no evidence, as far as I know, but I haven't been through the whole judgment, I borrowed yours for a very short space of time yesterday, but as far as I know the question of mob psychology has not been raised. There doesn't seem to have been any evidence on it, but isn't it a relevant factor in this case that, certainly I have heard evidence in other cases, I think the first one was the Cato Manor murders, how when a group of people are acting together they can be unconsciously influenced as a mob to do things that as an individual they would not have done, and is that not a factor to consider from the beginning, from the launch? That because there was a group of young students who were getting worked up, that they over-reacted to suggestions that were made, unconsciously. When you are subject to mob psychology you don't realise the fact, but they accepted the "make the country ungovernable" meant more than it was intended to, and that that explains why how they behaved as they did, is that a factor we should consider?

ADV ARENDSE: It's quite possible Judge Wilson that that may have been the case, but clearly what underlined and what influenced the conduct of the applicants was the kind of political motivation and the speeches and the militant speeches, marches, singing, dancing, that, and I think that crucially distinguishes it from well-known or notorious cases involving pure mob violence, and where we have looked at some of the written decisions of the Committee where the Committee has turned down applications for amnesty because the Committee found it was purely a case of mob violence.

JUDGE WILSON: You see here the speeches were finished by one o'clock weren't they?

ADV ARENDSE: They were finished by three o'clock.

JUDGE WILSON: Three o'clock were they?

ADV ARENDSE: Yes. 

JUDGE WILSON: And then there was two hours of toyi-toying and of the mob, the 100 people, meeting another 100 at a station, excitement becoming more and more tense and surely one must, one can't just go back the whole time and say, well it was the speeches that did it, it was the speeches that did it, one must have regard to the fact that they were 100 or 200 young people under extreme tension in the course of that afternoon.

ADV ARENDSE: Well certainly one can't go back, but our case is on the facts support that, that the speeches initiated and certainly gave rise to that. But then the political tensions, the political atmosphere continued and in fact intensified as the group got together and as they were singing and as they were dancing and then you find the police, representing the face of the politicians ruling the country at the time shooting at them, that all adds to that cycle. And then you go on and now you are aiming at vehicles and you start stoning and yes....

ADV GOZO: If, Mr Chairman with your permission, to add to our submissions in that regard, if one looks at the atmosphere in the township, not only that day but during that time, and this was portrayed very clearly in the media at that time, there was - this is before the Committee, contained in the affidavit, this was at a time when the Teachers' Union was going through a phase of forcing the government to recognise them as a Teachers' Union and various political leaders and various student leaders were calling on students to support the teachers. This re-launch took place at a time when there was that kind of atmosphere taking place in the township. And this has the effect of strengthening the underlying requirements in relation to the Act of a political objective and tends to move it away from just a pure mob psychology kind of event.

CHAIRPERSON: Thank you. Mr Brink.

MR BRINK ADDRESSES IN ARGUMENT: Thank you Mr Chairman.

&#9;At the outset I would like, with great respect, to congratulate my colleagues for their very impressive submissions, but I am sure they will forgive me if I tell them it's my duty to place before the Committee any difficulties which the applicants may have in regard to their applications for amnesty.&#9;Unfortunately remorse shown by them and forgiveness shown to them by Mr and Mrs Biehl do not play any role in the amnesty process.

&#9;Now there appears to be absolutely no doubt that they were influenced by these slogans, by the speeches, by what they had heard in the past, and you then have to consider as obviously you will consider, whether the murder itself could be justified as a "political murder", and I say "political murder" in quotes. 

&#9;Their evidence was that they killed Amy Biehl either because they were objecting to the fees which were being levied on matriculation students, or they killed her to get the land back, and possibly in the case of the last applicant, for whom one must feel a great deal of sympathy, he killed because I think he was caught up. He had no independent decision-making process in regard to what he did. He was just one of the mob and I don't believe that he had a specific intention to do what he did. But nonetheless he did it and he suffers for it.

&#9;Now one has to deal with the question of proportionality because that is in terms of the Act. And if you find that these applicants committed the murder with a political objective, which I contest, but if you find that, then you have to consider well was this murder proportionate to the objective they sought to achieve, bearing in mind the objective was to get the land back and the objective was to have these matriculation fee levies done away with. 

&#9;The real situation here, in my submission is this. That these four young men were at that meeting. That they heard these slogans. And Judge Wilson anticipated what I was going to submit on this question of the mob, they got to use the cliche "carried away". They were toyi-toying, they were throwing stones at various vehicles, government or otherwise, they were in a state of high tension and excitement, not high spirits, that is clearly the wrong expression, of tension and excitement. 

&#9;And I think the psychologists have given a new word to the English language in the cases I have read, one I was trying to think of last evening but it came to me this morning, and that is "de-individuation". An ugly word. But what I understand it to mean is this, that when you are in a mob and the mob is behaving in a violent way you as a member of that mob lose your sense of individuality. You lose your capacity to reason. You just become part of a swarming mass of bees, so to speak, intent on causing destruction wherever anything to be destroyed can be found. And that, I think, is the situation here.

&#9;Amy Biehl was in the wrong place at the wrong time. When they saw her, notwithstanding their denial that they were told to leave her alone, the evidence was at the trial that that did happen, they nonetheless pursued, pursued her to death.

JUDGE NGOEPE: Mr Brink "de-individuation" has some degrees.

MR BRINK: Has some?

JUDGE NGOEPE: Degrees.

MR BRINK: Yes.

JUDGE NGOEPE: Yes. It can more grave, it can be less.

MR BRINK: Yes. Well I think ...(intervention)

JUDGE NGOEPE: Why do you think that in this particular case, if there was any, it was so grave as to destroy the existence of any political objective in their mind?

MR BRINK: Because I do not believe that they set out when leaving that meeting, they didn't set out to find White people to kill them, they set out to make the township ungovernable by ...(intervention)

CHAIRPERSON: How? They went around throwing stones at vehicles.

MR BRINK: Destroying government property, that was the intention, in my submission.

CHAIRPERSON: Well, that's how it starts.

MR BRINK: That's how it starts.

CHAIRPERSON: Yes.

MR BRINK: And then they get so excited ...(intervention)

CHAIRPERSON: No but they threw stones, they continued to throw stones, they were fired at by the police.

MR BRINK: Yes, yes.

CHAIRPERSON: They would have destroyed whatever was in their way.

MR BRINK: Yes.

CHAIRPERSON: They threw stones at Amy Biehl's car, it just happened that she got out of the car.

MR BRINK: Yes.

CHAIRPERSON: When she got out of the car the stone-throwing continued.

MR BRINK: Yes.

CHAIRPERSON: Until she was killed.

MR BRINK: Yes.

CHAIRPERSON: Now I think that the evidence in this case here does not, in my view at any rate, support "de-individuation" because here after the meeting they set out on a campaign to put into effect what they had heard should be done in support of APLA. So they set out consciously to engage in certain kind of activity, understand?

MR BRINK: Yes. But they were never, they were never, in my submission, told directly by anyone to go and seek out Whites to kill, to kill such Whites.

CHAIRPERSON: Well the slogan was ever present in their minds, not only at that meeting, but prior meetings.

MR BRINK: Yes.

CHAIRPERSON: They had assumed that - you know...

MR BRINK: But if you take into account their own evidence, leaving the question of de-individuation aside, take into account their own evidence, they have said that they killed Amy Biehl because they wanted to get the land back or because they wanted the matric fees abolished. Now the killing of Amy Biehl is out of all proportion, in my submission, to that.

CHAIRPERSON: I think that in fairness it isn't they wanted the exam fees abolished or they wanted the land back, it's a complex of issues. The issue at that time that came to the fore was the non-recognition of teachers, they wanted examination fees, those of students, these are immediately impacting on them as students, but that they are operating in a community in which there are other broader issues, so these issues which affect students are mentioned by them, but all this is in a broader context of what is happening in the community at large.

MR BRINK: Yes I accept without hesitation the background to the events. I mean there is no dispute about that. There is no dispute they were influenced by the sloganeering and what was said at this particular meeting on that particular day, no doubt about that, but my point is that on their evidence, they may well not qualify for amnesty because the murder itself was a senseless murder and cannot be said to have been committed with a political objective. It's out of all proportion, on their own evidence, and that is why I oppose ...(intervention)

JUDGE NGOEPE: But you keep on emphasising that it is out of all proportion Mr Brink but which baffles me. They have said they killed because they wanted the land back, what thing is there which is more precious to kill for than the land?

MR BRINK: Well ...(intervention)

JUDGE NGOEPE: Men have declared themselves willing and prepared to die for their land and by the same token men have declared themselves to kill for the land, what thing is more precious to die for, to kill for than the land? How can that be out of proportion, if it is true, how can that be out of proportion?

MR BRINK: Because the point I am making is that the killing of Amy Biehl, on the evidence in cross-examination, that it could never have helped to bring the land back, that individual, that single killing of that individual.

JUDGE NGOEPE: That's the mistake you make, you view, you look, you take one individual killing and you want to view it in isolation, and make a dramatic argument out of it and say how can this killing of this beautiful young woman bring back the land on the afternoon of the 25th of August in Guguletu, indeed how can it?

MR BRINK: It is not my intention ...(intervention)

JUDGE NGOEPE: If you see it in isolation.

MR BRINK: It is not my intention to make any dramatic submissions, it's my intention merely to place my submissions before you to enable, to assist you if I possibly can. Anyway those are my submissions.

JUDGE WILSON: Can I come back, before you stop, I am worried about this. On the evidence of everybody it would seem that nobody knew that Amy Biehl was in this car. It was just one of the vehicles travelling along the road, in fact they were stoning a lorry in front of it and this car appeared from behind the lorry.

MR BRINK: Yes.

JUDGE WILSON: And they threw stones at it. There is no suggestion that anybody at that time knew there was a White driver. The car came to a halt because the windscreen had been shattered, apparently, and unbeknown to anyone else Amy Biehl had been hit on the head. Her passenger said to her drive on and she said no I can't and she got out of the car. 

&#9;Well up till that time nobody in that mob had had any intention of killing anybody, in particular of killing the driver, this person. It's when they saw this wounded White girl in front of them, running towards the garage, that the sudden decision to kill was taken. That, on the evidence, it appears that the third applicant got hold of a knife from someone, chased her, tripped her and stabbed her heart. Now can one assume that in that time that he suddenly thought, oh if I go and kill her now it will help to get the land back for my people? Or can one assume - what sort of intent can one read into his sudden behaviour of that nature?

MR BRINK: Well there was clearly an attempt to damage the car and possibly injure the occupants regardless of their race at that time, it's well-known. Yes, it's very difficult to say when an intent to kill Amy Biehl was formed.

JUDGE WILSON: Well it must have only been when he got the knife. When he asked somebody for the knife, tripped her up.

MR BRINK: Yes, yes.

JUDGE WILSON: It was very quick. It wasn't something that had been thought about. It wasn't - well if we kill a White person now it will create a great sensation, it's a spontaneous act on his part, wasn't it?

MR BRINK: Well that I think was the situation Judge. These people didn't, in my submission, go out to look for White people to kill that afternoon, it just so happened that when Amy Biehl got out of the car, injured and was moving away, she was knifed and further stoned, indeed by a crowd who were, it seems to me, who were so - in such a state of frenzy, as even one of the applicants who was busy stabbing at her, or stabbing her, mentioned that he himself got struck by a stone.

ADV DE JAGER: That could be the position that they didn't have the intent to kill Whites at a stage but it must be subconscious in their minds otherwise they wouldn't have reacted like they did on seeing a White, on seeing a settler.

MR BRINK: Yes I accept that, I agree with that.

JUDGE WILSON: I think Mr de Jager has answered my question. One must accept that that hostility was built up within them, that belief and that they then applied it, because my problem was I couldn't see how they would suddenly develop it.

MR BRINK: Yes, I agree with that.

CHAIRPERSON: Mr Arendse do you wish to reply?

ADV ARENDSE: No, no thank you Mr Chairman. It just remains for myself and my colleague on behalf of the applicants to thank the Committee for listening to us and for thanking everybody here for making them comfortable, and for making it possible for them to appear here. The authorities, the prison authorities have been very good in making them very accessible to us at all times and at any time. And for Mr Brink's cooperation. Thank you.

CHAIRPERSON: Thank you.

ADV DE JAGER: Mr Arendse there can't be any basis to distinguish between the applicants' applications? There can't be, I think you would submit, that there can't be a basis why, for instance, no.2 should get amnesty and no.1 shouldn't get amnesty if, it's your submission that either all get amnesty or no one will get amnesty?

ADV ARENDSE: Yes. I wanted to say something about an injury to one is an injury to all, something along those lines but.....

JUDGE WILSON: Well there is no suggestion before us of any single intent apart from the others of any personal animosity, anything of that nature. Some acted more quickly, more violently than the others, but the group all reacted.

CHAIRPERSON: Very well the Committee will make its decision known in due course. That brings to an end this matter. 

COMMITTEE ADJOURNS

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