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Amnesty Hearings

Type AMNESTY HEARINGS

Starting Date 21 September 1999

Location PIETERMARITZBURG

Day 2

Names JOHANNES JAKOBUS SWART

MR CORNELIUS: Thank you Mr Chairman, I call the third applicant, Johannes Swart.

MR LAX: Your full names for the record please, Mr Swart?

MR SWART: Johannes Jakobus Swart.

JOHANNES JAKOBUS SWART: (sworn states)

MR LAX: Sworn in Chairperson, you may be seated.

EXAMINATION BY MR CORNELIUS: Thank you Mr Chairperson. Mr Swart you have submitted an application before this Committee and you confirm the contents thereof, is that correct?

MR SWART: Yes, that is correct.

MR CORNELIUS: At all times you were an employee as defined in terms of the Act, Section 20(2)(b) and 20(2)(e), is that correct?

MR SWART: Yes, that is correct.

MR CORNELIUS: You were deployed to Vlakplaas, the Unit Vlakplaas as defined within the documents before this Committee and you served under the command of Col Eugene de Kock, is that correct?

MR SWART: Yes, that is correct.

MR CORNELIUS: And at all times you acted in the scope of your duties and in the execution of an order in terms of this action?

MR SWART: Yes, that is correct.

MR CORNELIUS: Now Dawid Britz and Willie Nortje, were they your seniors?

MR SWART: Yes, they were.

MR CORNELIUS: What were their ranks according to your knowledge?

MR SWART: Both of them were Warrant Officers.

MR CORNELIUS: And Larry Hanton, what was his rank?

MR SWART: He was also a Warrant Officer.

MR CORNELIUS: And Col Andy Taylor was the Colonel?

MR SWART: Yes, that is correct.

MR CORNELIUS: What was your rank?

MR SWART: I was a Constable at that stage.

MR CORNELIUS: Very well, you worked strictly according to the need to know principle in terms of your orders?

MR SWART: That is correct.

MR CORNELIUS: And if one studies your amnesty application it states that you received an order to go to Mooi Rivier to meet Hanton?

MR SWART: That is correct.

MR CORNELIUS: And it is also common cause for the Committee that you then went with Willie Nortje and Dawid Britz to meet Hanton and Any Taylor in Mooi Rivier?

MR SWART: That is correct.

MR CORNELIUS: It is also common cause that you went to bar called van der Merwe's and later to Lion Park?

MR SWART: Yes, that is correct.

MR CORNELIUS: What was your order? What was your order, what were you supposed to do, why did you go to Natal?

MR SWART: As I understood it, there was a person who had to be eliminated because he posed a threat for the senior police officers in terms of information that he could expose from Operation Vula.

MR CORNELIUS: How did this information come to your knowledge?

MR SWART: It was discussed with Col Taylor and Mr Hanton. Warrant Officer Nortje conveyed it to me.

MR CORNELIUS: Did you make any further enquiries regarding this man's political objective, the objective of the man Goodwill Sikhakane or did you not?

MR SWART: All that I understood was that he posed a threat for the senior officers of the police.

MR CORNELIUS: Very well. When you refer to the senior officers of the police, do you refer to the police from the Durban Security Branch, I assume?

MR SWART: Yes, that is what I assumed.

MR CORNELIUS: If the information from Operation Vula became known, would this have posed a very sensitive situation for the government?

MR SWART: Yes, that is correct.

MR CORNELIUS: And to whom did you think this information would be made known?

MR SWART: To the ANC.

MR CORNELIUS: Did you regard the ANC as a political enemy at that stage?

MR SWART: Yes, I did.

MR CORNELIUS: Very well. It is also common cause that you were present when test shots were fired with the AK47, is that correct?

MR SWART: Yes, that is correct.

MR CORNELIUS: And it is also common cause that you took Hanton to arrange an appointment with Goodwill Sikhakane for later the following evening?

MR SWART: That is correct.

MR CORNELIUS: Could you just tell the Committee in your own words you then drove the kombi on the evening when you went to fetch Goodwill Sikhakane, is that correct?

MR SWART: I assume that I drove the kombi, yes.

MR CORNELIUS: And it was the evening when it was raining when you went to pick up Goodwill Sikhakane to murder him?

MR SWART: Yes, that was when I drove the vehicle.

MR CORNELIUS: You were driving and what happened while you were driving the kombi?

MR SWART: Warrant Officer Britz and Nortje waited for Goodwill behind the seat of the kombi, he climbed in, Hanton spoke to him. We drove, I am not quite familiar with the road, it was outside the town. There was a slope on the left side of the road.

MR CORNELIUS: Was Goodwill Sikhakane overpowered at a certain stage?

MR SWART: Yes, he was.

MR CORNELIUS: And how did they manage to overpower him, I know that you were driving but how did they manage to overpower him according to your knowledge?

MR SWART: According to my knowledge they grabbed him from behind and hit him over the head with a blunt object.

MR CORNELIUS: We have heard evidence that it was some form of a leather baton with a metal ball inside, is that correct?

MR SWART: Yes, it is possible.

MR CORNELIUS: Did Goodwill Sikhakane bleed according to your knowledge?

MR SWART: Yes.

MR CORNELIUS: Very well, he was overpowered and you then stopped next to a slope, what happened then?

MR SWART: I was instructed to stop the vehicle, Nortje, Britz and Hanton took Goodwill out of the vehicle and they went up the slope. I continued driving for approximately three kilometres.

MR CORNELIUS: Were you alone in the vehicle?

MR SWART: Yes, I was alone.

MR CORNELIUS: What did you do then?

MR SWART: I kept driving along the road for approximately three kilometres and then turned around and drove back slowly to the same point where I had left them. They met me there and climbed into the vehicle.

MR CORNELIUS: What was the purpose with driving ahead?

MR SWART: The purpose was not to draw attention to the place where they were murdering the man.

MR CORNELIUS: If the kombi had been on the scene, what would have happened?

MR SWART: A police vehicle could have stopped there or a member of the public could have stopped to offer assistance and they may have heard the shots.

MR CORNELIUS: I see. It is common cause that you then returned to Lion Park and later you returned to Vlakplaas?

MR SWART: That is correct.

MR CORNELIUS: You also cleaned the vehicle if I study your application?

MR SWART: That is correct.

MR CORNELIUS: Did you cherish any feelings of personal vengeance or malice towards Goodwill Sikhakane?

MR SWART: No.

MR CORNELIUS: Did you receive any reward for your participation in the action, apart from your regular salary as set out in Section 23?

MR SWART: No.

MR CORNELIUS: And you are applying for amnesty for the murder of Goodwill Sikhakane?

MR SWART: That is correct.

MR CORNELIUS: Thank you Chairperson.

NO FURTHER QUESTIONS BY MR CORNELIUS

CHAIRPERSON: Can I just clarify something please. I think you said that if the information from Operation Vula became

known, it would be a threat to the government, but Operation Vula was an ANC operation, wasn't it?

MR SWART: Chairperson, as I understood it, this man had information which would have threatened the lives of officers of the police, I don't know, they may have been killed if this information was exposed. In terms of Operation Vula, I understood that he had too much information and that they regarded him as a threat to the South African government.

CHAIRPERSON: Was it that he knew too much about what the South African Police knew about Operation Vula?

MR SWART: Would you repeat that please?

CHAIRPERSON: That he knew too much about what the South African Police had already discovered about Operation Vula?

MR SWART: Chairperson, I am not certain of what he knew. As far as I understood from Warrant Officer Nortje, he was a threat to the people and we had to eliminate him.

CHAIRPERSON: You weren't given any details of how or why he was a threat?

MR SWART: No, just in general.

MR LAX: I mean you wouldn't have refused to carry out the order? You weren't even interested in the reason why he was to be killed, you were just told to kill him and you killed him?

MR SWART: That is correct.

CHAIRPERSON: You relied on the judgement of your senior officers?

MR SWART: Yes Mr Chairperson.

MR HATTINGH: Hattingh on record, Mr Chairman, I have no questions, thank you.

NO CROSS-EXAMINATION BY MR HATTINGH: .

MR LAMEY: No questions Chairperson.

NO CROSS-EXAMINATION BY MR LAMEY

CROSS-EXAMINATION BY MR NEL: Thank you Mr Chairperson. Mr Swart, Mr Hanton cannot recall that he was present when the shots were fired with this weapon, the AK. He does not say that he was not present, he says that he simply cannot recall, could you tell us whether or not he was present?

MR SWART: What I do know is that Warrant Officer Nortje fired the weapon, I think we drove with the BMW, I am not certain whether he was present or not, I cannot say with certainty.

MR NEL: Mr Hanton himself did not give you the information why this man had to be eliminated, you said it was Warrant Officer Nortje?

MR SWART: That is correct.

MR NEL: Thank you Chairperson.

NO FURTHER QUESTIONS BY MR NEL

MR LAX: Mr Lamey, any questions?

MR LAMEY: I have already indicated I have got no questions.

MR VISSER: Visser on record Chairperson, I have no questions for this witness, thank you.

NO CROSS-EXAMINATION BY MR VISSER

MR WAGENER: Jan Wagener Mr Chairman, no questions, thank you.

NO CROSS-EXAMINATION BY MR WAGENER

MR SCHOLTZ: I have no questions, Mr Chairperson.

NO CROSS-EXAMINATION BY MR SCHOLTZ

ADV STEENKAMP: No questions, Mr Chairperson.

NO CROSS-EXAMINATION BY ADV STEENKAMP

CHAIRPERSON: Thank you.

MR SWART: Thank you sir.

WITNESS EXCUSED

ADV STEENKAMP: Mr Chairperson, as far as I understand all the applicants have finished their testimony, you will see on the record, there is still the application for Mr Radebe on the role, I am not exactly sure what his position is, as far as I can establish, he is not an applicant. I don't know what the final position is of his legal representative, maybe Mr Hattingh can maybe indicate what his position is, thank you Mr Chairman.

MR HATTINGH: Mr Chairman, Mr Radebe was not involved in this incident at all, and he is not an applicant for amnesty in respect of this particular incident.

CHAIRPERSON: Does that complete the evidence that is to be led on behalf of the applicants? Mr Scholtz, do you propose to lead any evidence?

MR SCHOLTZ: Mr Chairperson, I have discussed it with the family of the deceased, and I have decided not to call any evidence.

ADV STEENKAMP: Mr Chairman, I am not calling any further evidence, thank you Mr Chairman.

CHAIRPERSON: Are you gentlemen ready to commence argument now or would you like to take the adjournment now and start at two o'clock or do you have any other suggestions?

MR HATTINGH: Strictly speaking for myself Mr Chairman, I am ready to commence argument now.

MR VISSER: Visser on record Mr Chairman, I am also ready to commence, to complete the argument now.

CHAIRPERSON: I see all of you are.

MR LAX: They clearly don't like Pietermaritzburg.

CHAIRPERSON: All want to go and visit Greytown.

MR HATTINGH IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, as far as Mr de Kock is concerned, it is clear from his

evidence that he firmly believed that he had instructions from Gen Engelbrecht to arrange for the elimination of Mr Sikhakane. It matters very little as to whether Engelbrecht in fact gave such instructions, it is clear from the evidence Mr Chairman, that Mr de Kock told Gen Steyn that he had to clear the matter out ...

CHAIRPERSON: He didn't say he had instructions from Gen Engelbrecht, did he, he said it had Gen Engelbrecht's approval?

MR HATTINGH: Yes, indeed Mr Chairman.

CHAIRPERSON: Because he told Steyn you must get it and he presumed this had been done?

MR HATTINGH: Yes, particularly in view of the fact that Engelbrecht then gave him instructions to contact Gen Steyn again and inform him that he would know what it was all about. Clearly Mr Chairman, he falls within the ambit of Section 20(2)(f) which reads

"... any person referred to in paragraph (b), (c) and (d) who on reasonable grounds believe that he or she was acting in the cause and scope of his or her duties and within the cause and scope of his or her express or implied authority."

At the very worst for him Mr Chairman, he entertained a bona fide belief that he had the implied authority if not express authority from Gen Engelbrecht to arrange for the elimination of Mr Sikhakane. He thereafter received instructions from Gen Steyn and he arranged for the elimination of Mr Sikhakane. He was given a reason why it had to be done, Mr Chairman, and he based on that information, he believed that it was necessary for Mr Sikhakane to be eliminated. It is quite clearly in my respectful submission, Mr Chairman, established a political objective. One really needs very little imagination to realise what the effect would have been had Mr Sikhakane disclosed the fact that the police had in fact arrested Ndaba and Shabalala and that they were responsible for their disappearance and subsequently their killing. I submit therefore Mr Chairman, that he had a very clear political objective, he acted under instructions and he made a full disclosure of all the facts known to him. He did not carry out the instructions for any personal or financial gain, there was no evidence that he received any such remuneration such as Mr Nortje received, and we submit therefore Mr Chairman, that he made out a clear case for amnesty and we apply for amnesty for murder, for the illegal possession of an AK47 fitted with a silencer and for possession of the ammunition for that particular firearm and in addition Mr Chairman, we apply for amnesty for theft or possibly fraud in respect of the amount of money which he told Mr Nortje to keep for himself. We have heard once again Mr Chairman, that there are minor children involved here, and therefore we seek amnesty for all delicts, claims on the basis of delicts, Mr Chairman.

MR CORNELIUS: Thank you Mr Chairman. I think it will be more in sequence if Adv Visser proceeds with Gen Steyn and then we can come down to the footsoldiers.

MR VISSER IN ARGUMENT: I have no problem with that Mr Chairperson. Mr Chairman, I am going to be brief, I find myself in respectful agreement with what my learned friend, Mr Hattingh has submitted to you. Chairperson, as far as the situation is concerned, perhaps it might be helpful to place it against the background of some of the facts as one can piece it together from other evidence which the Committee has heard. This takes place, Chairperson, it starts off in 1988 when there was a drive from Swaziland by the so-called Natal machinery and it was in 1988 that Mr Sikhakane was recruited Chairperson. You will recall perhaps in the Dion Cele matter, I am not quite sure whether you in fact Chaired in that, I have just been told you weren't, but apparently Sikhakane was the person that was instrumental in the abduction and the later murder of Mr Dion Cele and according to Vorster's evidence in the Cele matter, Sikhakane and his wife and one child if I remember correctly, Commissioner Lax can correct me if I am wrong, were brought out the very next day, one day later. Chairperson, it is clear that Sikhakane was involved as an

informer and as an askari since 1988, some two years at least prior to his demise. It is not in our submission terribly relevant to find out what his whereabouts were other than to know that in the period of two years Chairperson, he must have gained substantial knowledge of the workings and the operation of the Durban Security Branch and their attempts to counter the revolutionary onslaught from Swaziland, also he must have had a very good knowledge of informers and the informer network, all of which formed part of very sensitive information of which he possessed Chairperson.

Gen Steyn has told you what his knowledge of the incident was and he said this, he said that Taylor came to him and informed him about problems that were experienced with Sikhakane, there was an alcohol problem, there was a problem, a domestic problem between him and his wife, which he assaulted her, threatened her with a firearm, we know from her own evidence that that was so, that she had complained to Col Taylor, Col Andy Taylor and as a result of which, the firearm of Sikhakane was confiscated from him on more than one occasion, for a few days. The issue Chairperson, of Sikhakane's own dissatisfaction with his work as a result of him not being appointed as a policeman in our respectful submission, is not really a material factor in the matter. We accept that there must have been something like that, it has been alluded to by Ms Pietersen, it has been supported to some extent by Mr Nortje, by Mr Hanton. It takes the matter no further, the fact of the matter is that there was a dissatisfaction apparently on the part of Sikhakane as well as from Taylor's point of view. Taylor's problem with Sikhakane was that he posed a security risk because of his alcohol problem and because of the fights that he was having, his domestic problems and Chairperson, he later started doubting whether Sikhakane was in fact not a double-agent. A line was thrown out, a disinformation line, and when the disinformation was fed back from Swaziland, according to the statement of Mr Andy Taylor, he took that information to Gen Steyn and that according to Gen Steyn, was the final straw. Gen Steyn, Chairperson, told you that when he first heard about the complaints regarding Sikhakane, he went and spoke to him at Camperdown and asked him to mend his ways and in fact Chairperson, this is very important, he says, he told you here that he told Sikhakane that with his lifestyle and what was occurring, he did not only pose a threat to his colleagues, but also to his own life because obviously in a drunken state, people might say things which may endanger not only the lives of others, but also of himself.

Chairperson, I would ask you to bear this one factor in mind in as much as I submit that this absolutely supports the credibility of what Steyn has told you. One must bear in mind that Charles Ndaba was arrested by both Vusi Ninela as well as Goodwill Sikhakane. We know that nothing ever happened to Ninela. He was not eliminated. So, any idea or thought or perception that a vicious circle had come into effect the moment that Charles Ndaba and Mbuso Shabalala were eliminated, and that that was really the reason as it was put to Gen Steyn, why Sikhakane had to be eliminated, does not hold water Chairperson, because if that was so, then clearly Ninela would also have been eliminated. In our respectful submission, it corroborates and supports the evidence of Gen Steyn that what really became the critical reason was the fact that they were sure on what they had in front of them by way of information, that is himself and Taylor, that Sikhakane was a double-agent. It was only in that sense Chairperson, that the issue of Charles Ndaba and Mbuso Shabalala perhaps obliquely became relevant as well, as one of the factors.

CHAIRPERSON: Was that the real reason Mr Visser, we only have alleged report made by Taylor that he thought he might be. Wasn't the position Mr Visser, that on the evidence available, Sikhakane should never have become a security operative, that he had these problems before he came to this country, he continued with them and as you have said, he must have picked up a lot of knowledge about what was going on. They tried to correct him, Gen Steyn went himself to speak to him and said "look, you must change", he didn't, he went on. It seems to me clear that there was a great deal of co-operation by Col Taylor, with his wife, that he tried to smooth things over for the family, it did not work and eventually they were driven to the conclusion that this man was a danger to all the things they say, the security operatives, he could identify people, he might say things that could affect the negotiations going on and it was for that reason that they decided. The double-agent was merely another possibility, but it was just the man's general behaviour, is what decided that he was

such a potential danger?

MR VISSER: Chairperson, I am in full agreement with you, but by the same token, we cannot ignore the fact that Steyn told you and that Taylor said before he died, in his affidavit, that he became convinced that he was a double-agent because you see Chairperson, with great respect, on what, on the proposition which you have just posed to me, now that becomes a real danger because while the man, Sikhakane, is not divulging the information which he possesses to anyone else, that is one thing, but the moment there are indications that he might be a double-agent, it becomes critical Chairperson. That is the only submission I am making. Of course, of course, part of that involves the whole issue of Charles Ndaba and Mbuso Shabalala, it cannot be denied Chairperson. Certainly that must have been part of what must have been going on in the mind of Gen Steyn and he says that that was.

CHAIRPERSON: The trouble is, Gen Steyn, as I understand his evidence, had to rely entirely on Taylor. It was in Taylor's mind that this was happening, and he came and told him that he might be a double-agent, he might, Taylor and Steyn had to rely on the judgement of a senior officer, who was in active charge of that Unit?

MR VISSER: Those are the facts Chairperson, yes, absolutely. Although I must say Chairperson, with respect to the evidence of Gen Steyn, is that he put it slightly higher than a mere presumption, he put it as slightly higher. He said that Taylor, in fact he said in his evidence "we became convinced that he was a double-agent".

CHAIRPERSON: My note says he said "Taylor told me that he might be playing a double roll".

MR VISSER: Yes Chairperson, and then the line was thrown out.

CHAIRPERSON: Yes, and that he gave him disinformation which was then, the Security Branch in Swaziland picked it up?

MR VISSER: Yes Chairperson. And my recollection and I may be wrong, was that Steyn thereafter said, said that thereafter he had become convinced that in fact the man was a double-agent because of that. But be that as it may Chairperson, the fact is that we are in complete agreement with the proposition which you have just put to me, that is in fact our argument Chairperson, and we say with great respect that that, per definition, presupposes a political objective, it certainly does not presuppose any personal malice or action taken against Sikhakane for any personal reasons and Chairperson, certainly in the present case, we submit that on the evidence of all the applicants that you have heard, there was a clear desire on their part to make a full disclosure to you of what they remembered Chairperson.

Lastly on this issue Chairperson, and honourable members, it is my submission that the evidence of Steyn is supported basically by the evidence of all the witnesses to a lesser or a major degree. They are giving evidence today of what they can recollect or what they heard nine years ago, eight years ago, and it is clear Chairperson, even from the evidence of Mr de Kock, that he recollects that he was told that there was a danger that Mr Sikhakane would divulge sensitive information to the ANC, which really in cross-examination he correctly conceded in our submission, which really boils down to the same thing. He remembers the issue of Charles Ndaba, etc, Chairperson. There is a lot of corroboration among the evidence of all the witnesses before you, to allow you to safely draw the inference that what they have told you, is the truth and the truth of the matter is that Sikhakane was eliminated for all the reasons which you put to me a moment ago. Mr Chairman, enough about the facts of the matter, there remains one issue Mr Chairman, which I hope you will allow me to address you and your members of your Committee briefly and that is the issue regarding the specification of offences.

Chairperson, the Act in Section 20 provides that if you are satisfied of certain prescribed issues having been complied with, that you can give amnesty, that you shall give amnesty, grant amnesty for any act, omission or offence as described in subsection (2) of Section 20 and subsection (3). Chairperson, you will recall when the Amnesty Committee commenced with its work, there were a number of issues which were unclear from the language of the legislation in terms of which you operate. Most of those have by way of interpretation, been dealt with in various decisions Chairperson. This is one issue that seems to remain unanswered because the problem which we all had with subsection (2) was that reading it, in the plain English language, what the legislature said was that an act, omission or offence must be an offence or a delict which in essence means that what the legislature said was inter alia that an offence has to be an offence before it can be an act or omission associated, an act or omission associated with a political objective. Mr Chairman, what I am leading to, and I am going to cut straight to the chase, is this, the question which we really have to ask ourselves is whether the legislature requires from the Amnesty Committee to specify the offences for which it grants amnesty and the answer to that is no, Mr Chairman, it does not. There is nowhere in Section 20 or elsewhere in the Act where the legislature stated that the Amnesty Committee shall only grant amnesty for such acts or omissions or offences as it finds to have been committed by a particular applicant. What it says is that if it is satisfied with the requirements set out in subsection (1) of Section 20, it shall grant amnesty for acts and offences, acts, omissions or offences and here is the submission Chairperson, which we believe with respect lies at the heart of it. When the Act speaks of acts or omissions, we submit it does not more than refer to a delict, that is all. It refers to nothing more than a delict. So what really if you read in subsection (1) of Section 20, each time for the words act, omission, the word delict, everything falls into place. Now Chairperson, why is this important? This is important from this point of view, Commissioner de Jager ...

CHAIRPERSON: (Microphone not on) ... is an offence or delict, not a delict.

MR VISSER: No, but that is subsection (2) Chairperson, but in subsection (1) it talks of an act or an omission. If that does not refer to a delict, the question must be what does it refer to? It cannot refer to an act or an omission in vacuo because subsection (2) says it cannot, it must be a delict or an offence. All that we are submitting Chairperson is that perhaps, because it could be more fortunately worded, we say that if you read in Section 20(1) the same words as there are in subsection (2), it makes great sense that what you are dealing with here and we know that this is what you are dealing with, are delicts and offences and may I explain my argument to you in this way. Commissioner de Jager on more than one occasion has said "well, we cannot just give you a blank amnesty because just now the Attorney-General comes and he charges you with an offence and you say but hang on, I've got amnesty already and then we have a problem because you did not specify what specific offence you applied for in that particular incident." But Chairperson, the acid test is this, in not one single case before the Amnesty Committee ever, have you specified the delicts and that is part of what you grant amnesty for, not in one single case that we have come across. Not in one single case that we have heard an application, has any delict been specified. Is it a delict for loss of support, is it a delict defamation ...

CHAIRPERSON: My practice is it is normally any delict arising from that offence.

MR VISSER: Chairperson, and that is precisely my argument. My argument is all you need to say is any offence that arises from the incident, any offence. May I illustrate that by referring you to one example only from the amnesty decisions in the Cronje cluster? In the zero handgrenades Chairperson, the Amnesty Committee heard the evidence and the application of Brig Cronje and Mr Venter, in the case of Brig Cronje, just confining myself now to the unlawful possession of explosives, the Amnesty Committee gave amnesty to Brig Cronje and that is at page 11 of that decision, for the following - contravention of Section 2, 28, 29, 32, 36 and 39 of the Arms and Ammunition Act, 75 of 1969; contravention of Section 2 of the Dangerous Weapons Act, 71 of 1968; contravention of Sections 3, 4, 5, 6, 9, 29 of the Explosives Act, 26 of 1956.

Mr Chairman, with respect without much trouble, the Attorney-General can go and sit down and find I am quite convinced in my own mind, quite a number of other issues that have been missed and the problem here Mr Chairman, is once the Amnesty Committee has given this amnesty, then inclusio unius est exclusio alterius, Brig Cronje is now bound to the amnesty which he received from the original Amnesty Committee in this particular sense of what I have just read to you with reference to the Sections. If you look at Venter and the decision which was made, amnesty granted in Venter's case Chairperson, and this is in exactly the same incident, by exactly the same Committee, at page 8 of Venter's decision, the Amnesty Committee in regard to the zero handgrenades formulated its amnesty for Venter as follows, it says - for the reasons set out in that decision amnesty is also granted, that is with reference to Brig Cronje, to this applicant in respect of the following offences - (a) deals with something else and then (b) Chairperson, any attempted murders and the possession of explosives or weapons pertaining to these incidents and any other offence directly linked to the facts of this particular incident. The interesting part is this, the Attorney-General can never charge Venter on that amnesty order which was granted, but it can charge Brig Cronje and this brings me Chairperson, and I apologise for going in a roundabout way, to illustrate the point, the submission is this on a proper reading of the Act, all that the legislature required from an applicant was to place a full disclosure of all the relevant facts before the Amnesty Committee and all that the legislature required and still requires of the Amnesty Committee is to grant amnesty for any delict or offence connected to that particular incident based on those particular relevant facts, and Chairperson with great respect, it is iniquitous to say the least, to expect from either the legal representatives or members of the Amnesty Committee to go and sit down and try to determine each and every single offence or delict which may have been perpetrated on the facts of any particular incident. We submit Chairperson, that it would be the most proper order in all cases, for the Amnesty Committee to make, to say the applicant is granted amnesty, if you are satisfied with the other requirements of the Act that they have been complied with, that the applicant is granted amnesty for any delict or offence committed by him in regard to this incident and then Chairperson, to identify that incident so that it can never be said as Commissioner de Jager was afraid it might be, to say for an applicant to say I got amnesty where in fact he did not. Now there is one further aspect that relates to this, you may say to me Chairperson, but then in every case where this might happen in future, the Court might have to decide on the facts what we gave amnesty for, well, the answer to that is a very simple one. If the Attorney-General on an order such as the one which I have just suggested to be the correct order, wants to charge any applicant who had obtained that amnesty, it is for him to come and prove, to show that the applicant did not obtain that amnesty. Chairperson, if at the end of the day the Court is then compelled to go and look at the facts to determine for itself what was meant by the Amnesty Committee when it granted the order, well, then so be it Chairperson. Then so be it. Just lastly Chairperson, returning to the order handed down in Cronje's amnesty decision, a number of matters immediately occur to you which have never been dealt. One of the things is that he did not get any amnesty for any delict for example. Surely Chairperson, that could never have been the intention of the legislature to expect from you sitting as you do in every single application, to have to go and suffer the burden of determining exactly each and every delict. One can think of dozens of reasons ...

CHAIRPERSON: That is precisely Mr Visser, why we have asked you to please tell us what you want, what your amnesty application is for and if we look at your application at page 162, you will see that all you needed to do was to ask for an order in those terms.

MR VISSER: Chairperson, it is question of establishing the principle here. Is it expected of an applicant and his legal advisor and in fact of yourself to specify each and every delict and each and every offence?

CHAIRPERSON: Look at your order Mr Visser, page 162. I am not saying you should specify anything. Please look at what you are asking for and tell me if that does not cover your argument precisely?

MR VISSER: Mr Chairman ...

CHAIRPERSON: You are asking for amnesty for any offence or unlawful deed based on his connection with the murder of Goodwill Sikhakane, finished.

MR VISSER: Chairperson, that is the only principle which I wish to try and establish, is that that is all that is expected of you to consider, and all that is expected ...

CHAIRPERSON: And that is what the applicant or legal advisors should come and ask for. And that is what we are asking you to tell us what you want.

MR VISSER: Yes Chairperson, but - I don't want to belabour the point, but I haven't, I have taken up the time, perhaps may I just round it off. One has the situation Chairperson where a number of other offences, if this is accepted by you, that is the end of the matter Chairperson, because that is all I want to ask you to do, is to accept that this is the proper way in order for an order to be asked for and to be granted. If you tell me now that you are satisfied with that, that is the end of the argument Chairperson.

CHAIRPERSON: I think that is sufficient thank you Mr Visser.

MR VISSER: That would then conclude my argument Mr Chairperson, I would then ask for amnesty for Gen Steyn for any act, for any delict or offence committed by him in regard to the death of Mr Goodwill Colleen Sikhakane on the date mentioned in the papers, thank you Chairperson.

MR CORNELIUS IN ARGUMENT: I will be brief, Mr Chairperson, thank you. Mr Chairman, three requirements need to be satisfied and it is my submission that my clients both the second applicant Britz and the third applicant, Swart, conformed with the requirements of the Act laid down in Section 20(1)(a) as far as their applications are concerned. They have testified to that affect as well and they have fully complied with Section 18 as well. As far as full disclosure is concerned, which is also a requirement, it is my submission that both applicants have fully complied with that relevant prescription and it is clear that they were credible witnesses, they were, especially Mr Britz was quite severely cross-examined and it is clear that he was a credible witness in all relevant aspects, as well as Mr Swart. They were basically the footsoldiers who carried out the instructions. Mr Britz in a way was in a bit of a more authoritative position, but it is clear that he carried out the instructions which came from a higher authority. Thirdly the, if the offence was committed with a political motive. It is clear that they were acting in the cause and scope of their duties with their employer. I cannot elaborate

more than Your Honour, Chairperson's judgement in the matter of the Khotso House, Cosatu House bomb explosion where you analysed the Mkhize and Martin's decision as well as the decision of Veltman and Mall and the estate Swanepoel decision fully, and it is quite clear that we have here to do with two footsoldiers who were acting in the cause and scope of their duties, with their employer. They might have deviated in small aspects from their original instructions, but as it is covered by the decision of Swanepoel, it is quite clear that that still falls clearly within the cause and scope of their duties with their employer, the South African Police. They were clearly acting on authority, there can be no doubt about that either. They were clearly acting in their minds on a subjective test against the political struggle. They thought they were acting against the ANC and they were in fact protecting the government of the day at that time. As I reiterate, they acted bona fide in the objective of countering and resisting the struggle. It is clear also that both my applicants did not receive any bonus of any nature whatsoever, they did not do it with any pecuniary gain in mind and it is also clear that they did not have any motive or hate or any of that type of feeling against the deceased, Goodwill Sikhakane. Therefore I ask as far as Mr Britz is concerned, for amnesty in his participation in the murder of Goodwill Sikhakane, also known as Neville, as well as his participation in gaining Mr Sikhakane illegal entry into the Republic of South Africa, obviously transgressing certain laws in that respect, thirdly as far as his possible possession of an illegal firearm fitted with a silencer, which is also illegal, and the ammunition is concerned, we would request amnesty for that.

CHAIRPERSON: Was this the Makarov?

MR CORNELIUS: This is the AK47.

CHAIRPERSON: Wasn't there evidence he had a Makarov pistol?

MR CORNELIUS: There was something referred to a Makarov, I recall that as well, so that will include the Makarov pistol Mr Chairman. The obviously following the elaborate and very detailed argument of my learned colleague, Mr Visser, for any possible delict which may flow from his actions. As far as Mr Swart is concerned, he would request amnesty for his participation in the murder of Goodwill Sikhakane, the illegal possession of a firearm, silencer and ammunition, of the AK47 and possibly the Makarov, the Makarov is not as far as Swart is concerned, I don't think, he didn't know about it at all, and any possible delict. Both applicants obviously are applicants as described in Section 20(2)(b) and 20(2)(f) possibly of the Act. That concludes my argument Mr Chairman.

CHAIRPERSON: (Microphone not on)

MR CORNELIUS: I understood so Mr Chairman, it would include the Makarov as well as far as Britz is concerned, thank you Mr Chairman.

MR NEL IN ARGUMENT: Thank you Mr Chairman, I am even going to be more brief than that, especially in the light of the fact that I took the liberty of preparing a written argument which I am going to ask the Committee to give an exhibit, it will be Exhibit E. In this document Mr Chairperson, I deal fully with under the heading "General", my client's legal position. I have also included a portion of the mental condition of Mr Larry John Hanton, I also have a document which I would like to hand in in conjunction with the written Heads of argument, which is a letter from a psychologist, which was sent to me, to my office on the 20th of August, which will be Exhibit F if I may and it is in respect of these Heads of argument that I ask for this Committee to favourably consider granting Larry John Hanton amnesty for the murder of Goodwill Sikhakane or any other offence that might relate to this incident. If I may hand these up, I will hand this in at the conclusion of the hearing if it pleases the Committee.

MR LAMEY IN ARGUMENT: Thank you Chairperson. Chairperson, a list has been prepared in relation to the offences that can be deduced from the facts as earlier required by the

Committee. Chairperson, it is my submission in short that Mr Nortje's position as one of the subordinate officers below Mr de Kock, his position is not different from that of Britz or Swart and that he had all reason to believe at the time that he received instructions, based on what he was told by Mr de Kock, that this was an instruction from Head Office and that it was an instruction which by nature had to be carried out as a result of a political risk that the victim posed for the Durban Security Branch. Chairperson, it is my submission that Mr Nortje's application comply with the provisions of the Act, specifically Section 20(2)(b) or at least also Section 20(2)(f) and that it was clearly also from the outset, he was inspired by the, first of all the instruction that he received and then secondly also the motive about the reasons that were given to him and that he had knowledge of at the time. Clearly in his position, from his vantage point he was not in a position to have more than that information and as we have heard before the Committee by Gen Steyn, there were actually also more to it about Sikhakane than Mr Nortje would have known. It is my submission that at least what he knew was sufficient for a political objective if one just looks objectively at what potential danger there lay with a person who threatened to disclose or who had possible knowledge to disclose about the disappearance of those ANC MK people who were involved in Operation Vula. If one cast your mind just a little bit back, one can recall how much Operation Vula was for political purposes also used by the previous government in order to gain some moral high-ground during the negotiation process. Chairperson, one could further imagine in my submission that had this information been disclosed, there would have been a great loss to that ground that they gained at the time. Chairperson, there is just one aspect and that is the bonus that Mr Nortje received, it is my submission that this was a matter after the fact. He could never have been inspired for personal gain when he received instructions to accompany the other members for this task. If I read the meaning of the Act Chairperson, it says it excludes any act committed by a person who acted for personal gain. By that I read by implication that the action of the person or the offence must have been inspired by, or motivated by personal gain, and this is clearly not the case. The fact of the matter is I think, it just is indicative of also full disclosure, the fact that Mr Nortje has disclosed this in the way that he did. It is my submission that he complies with all the requirements for amnesty. As the Committee pleases.

MR WAGENER IN ARGUMENT: Jan Wagener, Mr Chairman, as in previous applications, Gen Engelbrecht does not formally oppose any of the present applications before you, Mr Chairman. He merely disputes parts of the evidence. In that sense I was

instructed to appear here on his behalf, to protect his interests. Mr Chairman, the evidence of Gen Steyn is quite clear, he and Taylor had discussions about the problems concerning Mr Sikhakane and this eventually led to the stage where he, Gen Steyn, decided that Sikhakane had to be eliminated. Thereafter he duly instructed Taylor to proceed with the operation. Mr Chairman, Gen Steyn was quite clear that he did not ask for instructions or permission from anyone, not from Security Head Office, not from Gen Engelbrecht. He in fact went even further and said that he has never done that in any other matter, for which he is applying for amnesty. To a degree Mr Chairman, he is corroborated by Taylor who also makes no reference in his application, that previous authority had been obtained from a higher office than Gen Steyn. Mr Chairman, the version of Mr de Kock which is denied by Gen Engelbrecht in so far as he, Engelbrecht, is implicated by Mr de Kock, de Kock's own version Mr Chairman, is that before the operation he had a discussion with Engelbrecht where only reference was made to a problem in Natal and the furthest Mr de Kock could go was that he assumed that Engelbrecht knew this was about Sikhakane and the planned murder of Sikhakane. After the operation, according to the version of Mr de Kock, he reported back to Engelbrecht, but once again in vague terms that the problem of Natal had been solved. In cross-examination he wasn't even sure whether the name of Sikhakane was mentioned, although he said that he thinks so and that is what he remembers, but he wasn't sure. Mr Chairman, reference was made to two directives of Security Head Office, early directives of 1980, 1981 which called upon all Security Branch Commanders that should they require the services of Vlakplaas, the way they should go about, they should formally request authority via the Head of C-Section and only once that has been given, could Vlakplaas be deployed to the different areas of our country. Mr Chairman, I submit that those directives is totally irrelevant to the present proceedings. Mr de Kock conceded that those directives only referred to legal operations and in the case of illegal operations as was the murder of Mr Sikhakane, these procedures would definitely not be followed in terms of the written requests and so forth, but it would merely go by word of mouth, as was testified. We also heard the concession of Mr de Kock that in a number of incidents where he was involved in crimes for which he has been asking for amnesty, he did so on his own initiative, without the authority of his immediate seniors. Mr Chairman, based on that, based on the evidence presently before you, I therefore submit that concerning Gen Engelbrecht, no negative finding ought to be made by you in any sense. Thank you.

MR SCHOLTZ IN ARGUMENT: Thank you Mr Chairman. Mr

Chairman, I don't propose to address the Committee on the applications of the first, second and third applicants, that is de Kock, Britz and Swart. Mr Chairman, as far as the fourth applicant, Nortje is concerned, I simply wish to submit that he acted for personal gain and should therefore not be granted amnesty. It is my submission that it makes very little difference whether you received the remuneration before or after the act was committed. The fact is that he did receive it in connection with this act. It is also significant Mr Chairman, that he was the person who did the dirty work, he is the actual one who pulled the trigger, and the question is, is this a pure coincidence or is this, was he given this incentive as a result of the part that he played in the commission of the offence.

Mr Chairman, with regards to the other applicants Hanton, Taylor and Steyn, it is my submission that the Committee should approach their evidence regarding the double-agency of Sikhakane and his visit to Swaziland extremely carefully. Mr Chairman, there is in the first place the clear discrepancy, a glaring discrepancy between the evidence of de Kock and that of Steyn regarding the reason for this operation. De Kock says there was a simple threat by this askari to walk over to the ANC if he was not permanently appointed in the police, Steyn on the other hand denies completely that he at any stage discussed the matter with de Kock or anybody else. But Mr Chairman, the point that I want to emphasise is the procedure which was followed after it is alleged that it became clear that Sikhakane was a double-agent. That relates to the fact that he was transferred to Greytown at a stage after he was suspected of being a double-agent, in fact after it was confirmed that he was a double-agent. Mr Chairman, if this was so, then it is highly improbable that he would have been transferred to Greytown, that he would have been permitted to walk around in Greytown in circumstances where he could have disclosed his knowledge, more particularly so in the light of the allegations that he was abusing alcohol and neglecting to come to work.

Mr Chairman, if the Committee finds that the allegations of being a double-agent and his going to Swaziland are untrue, then of course the matter of full disclosure comes up and it is submitted that on that basis, amnesty should not be granted to Hanton, Taylor and Steyn who were obviously involved in fabricating this evidence regarding Sikhakane. Those are my submissions, Mr Chairman.

CHAIRPERSON: Thank you.

ADV STEENKAMP: I have no submissions to add, thank you Mr Chairman.

MR VISSER IN FURTHER ARGUMENT: Mr Chairman, I see

you are ready to rise, may I enquire whether we might be allowed a brief reply to what we have heard now, being thrown at us by way of objection to the applications, Mr Chairman.

CHAIRPERSON: Is it necessary Mr Visser, what do you want to raise?

MR VISSER: Chairperson, I will be no more than two minutes. May I first of all draw your attention, you can time me Mr Chairman, may I first of all draw your attention to the regulations made, laid down on the 5th of February by this Committee, under your Chairmanship Chairperson, to say that where there are objections, such should be communicated to the applicants and the grounds for the objections should be set out so that they could be dealt with during the application. None of that has been done, and technically there is no objection before you, but be that as it may Chairperson, the grounds of the attack upon Hanton, Taylor and Steyn rests on the assumed, the assumed non-existence of the visits to Swaziland as well as the, an apparent clear discrepancy between de Kock and Steyn, none of which exists. Chairperson, there is no evidence before you to contradict the evidence of all these witnesses, and with great respect that is the end of my reply to the attack Chairperson.

CHAIRPERSON: We will take time to consider our decision and that completes this hearing. I thank all you gentlemen for your co-operation during the course of the hearing and I presume I will be seeing some of you in Pretoria on Monday.

HEARING ADJOURNS

 
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