Comment: The Derby-Lewis case

The impartiality and consistency of amnesty decisions is put under the spotlight by the case of Chris Hani's killers.

APRIL 10 will mark the eighth anniversary of the murder of the general secretary of the South African Communist party (SACP), Chris Hani. His assassins, Clive Derby-Lewis and Janusz Walus, who were refused amnesty nearly two years ago, are currently applying for leave to appeal the High Court's decision not to overturn that refusal. Their application, which is unlikely to be heard before May, will rekindle debate over their quest for freedom. Lawyers acting for the Truth and Reconciliation Commission, the SACP and the Hani family have served notice that they will oppose it.

Derby-Lewis and Walus are serving life sentences, their death sentences having been set aside when the Constitutional Court ruled that the death penalty was unconstitutional in mid-1995. Many of Hani's admirers believe that Derby-Lewis and Walus were lucky to escape the noose and deserve to be incarcerated for the rest of their lives. As SACP national chairman Charles Nqakula has put it: "Millions of South Africans will be outraged if these individuals are released." Hani was the highest-ranking political leader to die in the recurring violence during South Africa's transition to non-racial democracy in the early 1990s; His name is revered in African National Congress circles. He might even have defeated Thabo Mbeki in the leadership struggle within the ANC had he concentrated on boosting himself as Nelson Mandela's successor instead of devoting his energies to promoting the SACP.

Derby-Lewis's own political status has contributed to the distinctive features of the case. He was a founder member of the Conservative Party (CP), a right-wing breakaway from the National Party, and represented the party in the president's council. He planned the assassination with Walus, who shot Hani dead in the driveway of his home on Easter Saturday 1993. The amnesty committee rejected their application for amnesty and the High Court dismissed their appeal on December 15 last year. But this has not reconciled them to their fate: they have since applied for leave to appeal against the High Court judgment.
The assassins and their families believe that they have been unfairly treated and that double standards have been applied to deny them amnesty while granting it to applicants whose legal claim is no stronger. Derby-Lewis's wife, Gaye, who was a co-accused in their 1993 trial but was acquitted, says: "If there is a single thread through the amnesty process, it is glaring inconsistency."

One of the reasons cited by the amnesty committee for refusing their amnesty application is that they were not acting in accordance with Conservative Party policy in carrying out their plan to kill Hani and therefore failed to fulfil one of the legal requirements for amnesty. In his testimony to the amnesty committee CP leader Fredi Hartzenburg states emphatically that the party did not condone murder, though it could understand, without approving, "if somebody acts in desperation". The High Court upheld the amnesty committee's judgment, concluding that, far from acting on behalf of the CP, the assassins "embarked on a terrorist frolic of their own". But J.J.Prinsloo, counsel for the assassins, cites cases where applicants were granted amnesty even though their actions contravened the policies of the political organisation in whose name they claimed to act. He refers to cases involving a bomb attack on Hillview School in Pretoria and the murder of Amy Biehl in Guguletu, near Cape Town in early 1990s.

The Hillview bomb attack, by Koos Botha a CP member of Parliament, was a contravention of stated CP policy and was condemned by the party. Yet a TRC amnesty committee granted him amnesty. Four members of the Pan Africanist Student Organisation (Paso) stoned and stabbed to death Amy Biehl, a white American citizen and Fulbright scholar, when they came upon her in Guguletu township, driving some black friends home. The Pan Africanist Congress (PAC) condemned their action and noted that Paso was not part of its underground army. Expressing its regret and its condolences to Biehl's parents, the PAC said, "They wrongly targeted and killed Amy Biehl." Yet the four were granted amnesty in a brief finding of hardly more than ten pages.

The Paso four recalled in their amnesty application that they were returning from a meeting where they had heard militant speeches and repeated cries of "One settler, one bullet". They interpreted the slogan to mean "every white person was an enemy of the black people" and were determined to implement it as they left the meeting. In the words of the amnesty committee finding, "That is how they got involved in the activities . . . which led to the killing of Amy Biehl." The amnesty committee that heard the Paso application seemingly accepted that they were influenced by the slogan. However an amnesty committee with different assessors was not convinced that Hani's assassins were influenced by a speech of CP leader Andries Treurnicht, as they claimed. Delivered in October 1992, Treurnicht declared that the "third freedom struggle" had begun (the first two being the Boer "freedom wars" against the British of 1881 and 1899-1902).

Gaye Derby-Lewis lays particular emphasis on the case of Sibusiso Ngcobo. A convicted murderer and member of the Inkatha Freedom Party, Ngcobo was granted amnesty in spite of the IFP's commitment to non-violence. The amnesty committee judgment in the Ngcobo case reads in part: "We are aware that the IFP constantly denied that it was part of IFP policy to engage in warfare and attacks on a political enemy. If amnesty should be refused on that ground, then no IFP member would be granted amnesty. The same would apply to members of (rival) parties who deny that they approved or condoned the deeds done by their members."

The December 15 High Court judgment is neutral on the question of whether TRC amnesty committees have been consistent and impartial. It found that its task is not to pass judgment on whether the amnesty finding in the Hani case is consistent with findings in earlier amnesty committee decisions. Rather it is to assess whether the findings in the Hani case are consistent with the amnesty provisions of the Promotion of National Unity and Reconciliation Act. The High Court's conclusion is that they are consistent - in large measure because the amnesty committee was correct in concluding that Derby-Lewis and Walus had not made full disclosure on two critical issues: first, why they obtained an unlicensed pistol fitted with a silencer (to practise shooting at home without disturbing the neighbours, according to Derby-Lewis's testimony); and second, why they possessed a "hit list" of persons, on which Hani was rated as number three after Nelson Mandela and SACP chairman Joe Slovo (to facilitate communication between them once they had decided to assassinate Hani and not to set themselves targets beyond that, says Derby-Lewis).

The scene is thus set for a bruising encounter between counsel for the assassins and lawyers representing the TRC, the SACP and the Hani family. It may serve as a backdrop to another potentially controversial amnesty finding: the pending decision on Robert McBride's amnesty application for a 1986 bomb attack on a pub in Durban. Three women, all civilians, were killed at a time when the ANC was still officially trying to avoid civilian casualties in its armed struggle. McBride, who was also sentenced to death for his crime, was released from prison in 1992 under a deal struck between the ANC and the National Party government. He is now an official with the department of foreign affairs.