DAY: 20

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CHAIRPERSON: Good morning to you all. We want to convey our humble apologies for not having been able to start timeously. We had arranged that we would commence at ten o'clock, unfortunately Mr Motata was delayed in court.

KIMPANI PETER MOGOAI: (s.u.o.)

MR MOGOAI: Thank you Chairperson.

MR LAMEY: Madam Chair, if I may interrupt, there is a request again that the gentlemen remove their jackets for today if it is possible.

CHAIRPERSON: Yes.

MR LAMEY: Thank you Madam Chair.

CHAIRPERSON: Mr Du Plessis, do you have any questions to put to Mr Mogoai?

CROSS-EXAMINATION BY MR DU PLESSIS: Yes, thank you Madam Chair. Mr Mogoai, how did it come about, please explain how did it come about that you had to go to Piet Retief?

MR MOGOAI: I was working at Head Office, under Stratcom Unit in the Intelligence Services, under Brig McIntyre. I don't remember the day, he called me and informed me to prepare myself for three days to four, to a week. I have been living with Mr Beeslaar. He did not tell me where we were going.

CHAIRPERSON: I am sorry Mr Mogoai, we are not getting any translation.

INTERPRETER: Apologies, Chairperson.

CHAIRPERSON: Is there a technical problem?

INTERPRETER: It is solved, the microphone was off.

CHAIRPERSON: Yes.

MR DU PLESSIS: Mr Mogoai, just go back a little bit and carry on from where you said you received an order from Brig McIntyre. Would you please continue from there?

MR MOGOAI: The arrangement was made that I should meet Mr Beeslaar at Wachthuis so that I would be able to live with him. I was not told where we were going. It happened on that particular day, I met Mr Beeslaar, the day which I am not able to remember, then we left. We went to Piet Retief.

MR DU PLESSIS: Very well. Mr Mogoai, I asked you this specifically because as it appears to me on page 40, as I read your statement, you were first contacted by Mr Beeslaar because you put that first in the paragraph and then you say afterwards, you received instructions from Brig McIntyre to go along with Beeslaar. Shall we accept that you firstly received instructions from McIntyre and then you went with Beeslaar?

MR MOGOAI: That is correct Chairperson.

MR DU PLESSIS: And your evidence is that you drove along with Mr Beeslaar to Piet Retief?

MR MOGOAI: That is correct Chairperson.

MR DU PLESSIS: Very well, because you have heard Mr Beeslaar's evidence that he said that as far as he can recall, he drove by himself. What do you say about that?

MR MOGOAI: I don't know whom I went there with, but I know that I went with Mr Beeslaar.

MR DU PLESSIS: Very well, can you recall anything about a rugby match that Mr Beeslaar had to go and watch?

MR MOGOAI: No Chairperson, I am not able to recollect that point.

MR DU PLESSIS: Very well, because you see Mr Beeslaar testified that when they arrived there at Piet Retief, along with Mr Pienaar and went to friends just outside Piet Retief to watch rugby before they continued onwards to Moolman, do you know anything about that?

MR MOGOAI: No Chairperson, I don't know anything about the rugby match. If it happened, it happened in my absence.

MR DU PLESSIS: Very well, Mr Mogoai. You agree with me that there is no reason why you would tell lies and there is no reason why Mr Beeslaar would tell lies, is that not so?

MR MOGOAI: That is correct Chairperson.

MR DU PLESSIS: Therefore either you are mistaken or Mr Beeslaar is mistaken?

MR MOGOAI: I would not agree that one of us is making a mistake. I would say one of us is not able to recollect.

MR DU PLESSIS: That is what I mean, let me just put it to you as such. You understand what I mean, one of you, one of the two of your memory is failing you? Is that correct?

MR MOGOAI: That is correct Chairperson.

MR DU PLESSIS: Very well, and do you then agree with me that it is possibly your memory and, or it is possibly Mr Beeslaar's memory failing him?

MR MOGOAI: I would not say it is the failure of my recollection, I remember very well that I went with him there.

MR DU PLESSIS: Very well. Mr Mogoai, the interrogation that had taken place at the house before he was taken to Josini dam, Mr Mngomezulu, may I just understand your evidence correctly, do you agree that he had been slapped there during that interrogation, but he was not severely assaulted there, or what do you say?

MR MOGOAI: I agree Chairperson.

MR DU PLESSIS: Do you also agree or do you know of Mr Beeslaar's evidence with regard to - maybe I should leave that. Madam Chair, I have no further questions, thank you.

CHAIRPERSON: Mr Williams?

MR WILLIAMS: Thank you Madam Chair, I've got no questions.

CHAIRPERSON: Mr Lamey? Oh, that is your client, sorry. Mr Prinsloo?

CROSS-EXAMINATION BY MR PRINSLOO: Thank you Madam Chair. Mr Mogoai, you have heard the evidence of Mr Pienaar as well as that of Mr van Dyk that Mr van Dyk had only called Mr Pienaar from his office to come into Moolman where the deceased had already been and was then interrogated, did you hear that?

MR MOGOAI: I heard that.

MR PRINSLOO: Do you agree with that evidence?

MR MOGOAI: I would not dispute nor agree with that, because I do not know when did he leave. I did not monitor his movements.

MR PRINSLOO: What I am putting to you is when he arrived at Moolman, that is Mr Pienaar, was the following morning, when Mr Mngomezulu, the deceased, had already been at Moolman where he had been questioned, do you agree with that?

MR MOGOAI: Please rephrase your question or repeat your question.

MR PRINSLOO: I will do that. According to Mr van Dyk as well as Mr Pienaar, Mr van Dyk contacted Mr Pienaar the following morning, the morning after the deceased had already been abducted from Swaziland and had requested Mr Pienaar to come to Moolman, in order to assist with the interrogation of the deceased. Do you understand the question now?

MR MOGOAI: Yes, I understand the question. According to my knowledge, I saw Mr van Dyk with Mr Pienaar on that very same day and Mr Beeslaar, but I do not remember the other person's name. That is when he - my response is over, you can continue.

CHAIRPERSON: Are you suggesting or are you actually saying that you saw Mr Pienaar on that day of the arrival of Mr Mngomezulu at Moolman?

MR MOGOAI: That is correct Chairperson.

MR PRINSLOO: What I am putting to you is that the following morning, Mr van Dyk contacted Mr Pienaar from his office to come to Moolman. He saw him at his office and asked him to come to Moolman to assist with the interrogation. Do you agree with that?

MR MOGOAI: I don't have knowledge regarding that because I was not present when van Dyk went to that office.

MR PRINSLOO: Sir, did you see Mr Pienaar during the evening or during the day at Moolman?

MR MOGOAI: Your Honour, I saw him several times. I cannot be precise as to whether it was during the day or in the evening, but I saw him several times. I do not understand whether was it Moolman or not, but it was just outside Piet Retief, because I do not know that area well. I saw him timeously there.

CHAIRPERSON: When did you first see him?

MR MOGOAI: I saw him for the first time on that evening when Mr Mngomezulu arrived.

CHAIRPERSON: At night?

MR MOGOAI: Yes, it was at night.

CHAIRPERSON: Thank you Mr Prinsloo.

MR PRINSLOO: Thank you Madam Chair. Mr Mogoai, your answer to the honourable Chairperson was that you could not recall whether it was during the day or in the evening, is that correct?

MR MOGOAI: That is correct.

MR PRINSLOO: It would then seem as if you are uncertain whether it was in the evening or in the day?

MR MOGOAI: It was in the evening, Your Honour.

MR PRINSLOO: I have already made the statement to you, I will continue with another aspect of Mr Schoon, that there at the farmhouse, close to Josini, he arrived there in the evening and had then interrogated the deceased, to you agree with that?

MR MOGOAI: I would like to make mention of this before I can respond to this question. Mr Schoon, I did not remember him at all. It is actually the first time that I can recognise him now, therefore I cannot recall as to when did he arrive there at that time. Therefore I cannot precisely say when did he arrive, because I did not recognise him and until when I saw him in these proceedings.

CHAIRPERSON: But do you recognise him as a person who was there at Josini?

MR MOGOAI: I cannot recollect seeing him anywhere before.

CHAIRPERSON: Thank you Mr Prinsloo, you may proceed.

MR PRINSLOO: Thank you. Mr Mogoai, Mr Pienaar testified that he did not see Mr de Kock at Moolman, what is your comment?

MR MOGOAI: I do not know as to where was he at that time when I saw Mr de Kock, therefore I cannot dispute the fact that he did not see him.

MR PRINSLOO: And the same applies at the farmhouse at Josini and there Mr Pienaar also did not see Mr de Kock, do you have any comment to that?

MR MOGOAI: I would respond in the same manner like I did with the previous question. I saw him and the fact that I saw him, does not necessarily mean that he should have seen him as well, but I saw him.

MR PRINSLOO: No further questions, thank you Chairperson.

CHAIRPERSON: Thank you Mr Prinsloo. Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Mr Nel?

CROSS-EXAMINATION BY MR NEL: Thank you Madam Chair. Mr Mogoai, I just want to put one thing to you. From your evidence I heard that you said that Mr Mngadi, my client is Mngadi, not Mogadi, but Mngadi, met you in Piet Retief on the

day of your arrival there, with his kombi. I have taken that point up with Mr Mngadi, he does not dispute that, but he simply says he cannot remember that, that is the only thing I wanted to put to you.

MR MOGOAI: Your Honour, I will humbly say that I do not dispute that because there were two kombis and the other one was driven by Mngadi and the other one was driven by Mr Koole. Therefore I would not dispute what he is saying. There were two kombis and two different drivers.

MR NEL: Thank you Madam Chair, I've got nothing further.

CHAIRPERSON: Did you understand however, Mr Mogoai, what was being said by Mr Nel? Mr Nel says that Mngadi does not remember what you have alleged on page 40, paragraph 4, that on your arrival in Piet Retief, you accompanied Mngadi, Mbelo, Nzimande amongst others to Moolman in a kombi.

MR MOGOAI: Those are the people that I met for the first time when I was taken to that base. It was a caravan like house that I was taken to. Those are the people that I left with to that place. If I was in their company, then Mr Mngadi was the driver, because Mr Mbelo and Nzimande were not driving.

CHAIRPERSON: Yes. You are through with your questioning Mr Nel?

MR NEL: I am through, thank you Madam Chair.

CHAIRPERSON: Mr Ramawele?

MR RAMAWELE: Just one submission. Mr Mogoai ...

CHAIRPERSON: We won't allow you to submit at this stage, we will allow you to ask a question.

MR RAMAWELE: I've got no questions then, thank you.

CHAIRPERSON: Yes. Mr Kgasi?

CROSS-EXAMINATION BY MR KGASI: Thank you Madam. Mr Mogoai, I am only interested in the process of interrogation. You said Mr Mngomezulu was taken into a room, which was candle-lit and had two beds, is that so?

MR MOGOAI: That is correct Chairperson.

MR KGASI: Was it further your testimony that you were called by one white officer to come and ask questions?

MR MOGOAI: It was not only one person who called me, everyone kept on calling me timeously to come and interrogate.

MR KGASI: An impression has been created that you were the chief interrogator, is that correct?

MR MOGOAI: I would say that I was just called timeously, but I do did not know that that gave me status of being the main interrogator, but I do not see it that way.

MR KGASI: In which language then did you interrogate Mr Mngomezulu?

MR MOGOAI: As I have already mentioned yesterday Chairperson, I was just mumbling and mixing languages, because I did not know the Seswasi language, I was just mixing Zulu and Xhosa. I was just talking you know, the ordinary language that is spoken in townships.

MR KGASI: Do you know Zulu?

MR MOGOAI: I try, but I do not know it that well.

MR KGASI: What about Xhosa?

MR MOGOAI: I also try, but sometimes I could always use words from the language not knowing what actually they mean.

MR KGASI: It was your testimony that if Mr Mngomezulu's answers were not satisfactory, he would be slapped and kicked, is that so?

MR MOGOAI: That is correct Chairperson.

MR KGASI: Tell me Mr Mogoai, in that as you said you were just mixing Zulu and Xhosa, did your message come across to Mr Mngomezulu, your questions?

MR MOGOAI: Sometimes I would say that he did not understand, but I cannot be certain about that, but most of the time he was not responding.

MR KGASI: May it be because he did not understand your language?

MR MOGOAI: There is that possibility, Your Honour.

MR KGASI: And tell me, at that stage when you were interrogating him, was he blindfolded?

MR MOGOAI: Yes, he was blindfolded with a white cloth.

MR KGASI: As you have said earlier in your testimony that there was a time when the cloth was removed from his face, is there a possibility that he might have seen you?

CHAIRPERSON: There was never a time when the white cloth was removed from his face, it would fall during the assaults.

MR KGASI: That was a wrong choice of words, Madam, may I rephrase the question?

CHAIRPERSON: Yes, you may.

MR KGASI: Thank you. Mr Mogoai, as you have testified that during the assault, the cloth that he was blindfolded with, would sometimes fall off, is there a possibility that he might have seen you then?

MR MOGOAI: I would say Chairperson, that I do not think that he could have seen anyone or identified anyone, because whenever that cloth fell, he would hide his face, and he was terrified hiding his face, because he was scared of being beaten again. At that moment, the cloth would be replaced again immediately.

MR KGASI: Now tell me, when was the last time you saw Mr Mngomezulu?

MR MOGOAI: It was in the morning.

MR KGASI: Do you still remember his state?

MR MOGOAI: He seemed to be in a dizzy state, or rather, he had fainted and he was leaning against the wall and resting on the bed and he was just motionless, but just moaning.

MR KGASI: That morning when you last saw him, was it the very same morning when you were ordered to leave?

MR MOGOAI: That is correct Chairperson.

MR KGASI: Mr Mogoai, do you perhaps know the reason why you were ordered to leave?

MR MOGOAI: No sir. I think it was because we were not needed there any more, because they might have decided to pursue the matter in a different way regarding Mr Mngomezulu. As to whether they were going to continue with the interrogation, I did not know, but that is what I think.

MR KGASI: What do you mean they intended pursuing the matter in a different way?

MR MOGOAI: I say that they might have decided to interrogate him further, but I was not sure as to what they were going to do with him further.

MR KGASI: The time when you were ordered to leave, who remained behind?

MR MOGOAI: I did not see them well, because they were inside. The person I remember seeing is Mr Beeslaar. I was not able to identify others who were inside the house, because they were inside the house and we were outside.

MR KGASI: All right, thank you Madam, I have no further questions.

NO FURTHER QUESTIONS BY MR KGASI

CHAIRPERSON: Thank you Mr Kgasi. Mr Malan?

MR MALAN: Mr Mogoai, I would just like to go back to your recollection of Mr de Kock's presence. If I understand your evidence correctly, you say that Mr de Kock arrived and you saw him arriving there with his vehicle, is that correct?

MR MOGOAI: No Chairperson, I did not state that I saw him arriving with his car. I saw him after he had arrived, but I did not see him arriving with his car.

MR MALAN: And you saw him after he arrived there, but this was because you saw him on two occasions and you saw him the second time when he walked in while you were busy interrogating the deceased, the opportunity when he asked you "can you extract anything from this man", is that correct?

MR MOGOAI: That is correct Chairperson.

MR MALAN: Those were the only two times when you saw him? Where did you see him for the first time? Was this at Josini or was it at the place close to Piet Retief?

MR MOGOAI: For the first time I saw him at the place near Piet Retief.

MR MALAN: Very well. Did he speak to you when you saw him there for the first time?

MR MOGOAI: For the first time, he did not speak with us.

MR MALAN: And the second time, he only walked in and he asked you if there were any successes, he struck the man in his genitals and said he would be okay later to answer, and he walked away again?

MR MOGOAI: He arrived, then he enquired as to whether we were succeeding with the interrogation, then I informed him that we were failing. Then he said he would help Mr Mngomezulu to remember, he went near him and hit him on the genitals.

MR MALAN: I would just like to take you to page 41 of the Bundle, paragraph 8 of your statement. There you say -

Do you see that?

MR MOGOAI: I do Chairperson.

MR MALAN: So according to your statement, it would appear that de Kock did speak to you the first time because he gave you that order? He joined you and said Mngomezulu had to be taken away?

MR MOGOAI: I understand what is written there, but I want to respond to your question in this way. That word "sê" in Afrikaans, I was trying to mean that we were informed. We were delegated by him, it was myself, Chris and Joe Koole and Mbelo, not that he was directing this instruction to me as a person, personally, but as a group.

MR MALAN: So how do you know it was delegated by him and why did you mention de Kock as the acting person there, is there a reason for that?

MR MOGOAI: I am not saying that he was speaking to me directly as a person, when he arrived, he saw that there as a confusion, then he gave an instruction that we should move there and that instruction didn't come from him directly, to me, or to that group. I am not able to remember who relayed that instructions which came from Mr de Kock to us.

CHAIRPERSON: May I interpose Mr Malan? If that is your version, Mr Mogoai, why then did you proceed in response to a question with regard to the instructions or orders obtained in relation to the act, offence or omission for which you seek amnesty? At paragraph 11(b), page 43 you again specifically says "the instruction to remove Mngomezulu from Piet Retief to Josini, you and you received from Mr de Kock?"

MR MOGOAI: Chairperson, on that point, when the instruction came to us, it did not come directly to us from the person who gave that order. It was relayed to us that a certain person says this should happen?

CHAIRPERSON: I understand that, but why is it reflected in your application as you having received such an instruction from de Kock if that is not what had happened? If I understand the thrust of your evidence, there hasn't been a suggestion that things were relayed by any person concerning Mr de Kock. You either observed on your own or Mr de Kock spoke to you about certain things. I haven't understood the totality of your evidence with regard to you placing Mr de Kock at the scene as having impinged upon anything having been said by a third party. It was either from your observation of Mr de Kock's presence or what Mr de Kock said to you personally at the scene. This is how I have understood the totality of your evidence in so far as Mr de Kock's presence at Moolman and Josini was concerned.

MR LAMEY: Chairperson, with all respect, could we just separate the situation from Moolman and Josini because we are busy with the situation at Moolman as I understand at this stage. His evidence in this regard is there are differences as to what he observed in connection with Mr de Kock in those two instances.

CHAIRPERSON: I don't see your problem Mr Lamey and I don't think Mr Mogoai is experiencing a problem with regard to what we are putting to him. If he is experiencing such a problem, we would appreciate if he brings us into that particular problem he is experiencing, so that we can be of assistance to him. Mr Mogoai, are you experiencing any problem with regard to what has been put to you?

MR MOGOAI: Yes, there is a problem as it has been explained Chairperson in regard to the instruction which came from Mr de Kock as it is explained that there is no third person. We were instructed directly by Mr de Kock as it appears on the statement. That is how I am able to explain, I have no other way to explain it. After he had arrived, there was an explanation that the confusion should cease which was happening there about the interrogation and the assault, without order. That is where he said that confusion should cease. After that, we learnt that we have been delegated that we should go to Josini. The way it is written on my statement, that is how I explain it.

MR MALAN: Mr Mogoai, let me just return to this, I just want to tell you and I am simply speaking out of my own impressions, I don't think that this is of the utmost relevance in terms of your own application, but it could be very important for Mr de Kock with regard to his application, and it may be that we will have to make a decision and find whether or not Mr de Kock was present. You state in your paragraph 7, and this is still at Moolman, the place which was situated near Piet Retief, that Mngomezulu refused to say anything, do you see that?

MR MOGOAI: Correct Chairperson, I do.

MR MALAN: You also told us that the first interrogation, and this is as per your viva voce evidence, it wasn't really an interrogation, it was more of an assault, which lasted for approximately 15 to 20 minutes, you had no instructions, you did not know what to ask and nobody had told you anything at that stage. You simply assaulted him? Can you recall this?

MR MOGOAI: I do, Chairperson.

MR MALAN: Very well, then you also stated in your evidence that you only saw de Kock upon two occasions, you saw him when he arrived there, but there was no conversation between you and him, can you recall that you told us this? That this was the first occasion upon which you saw him and I must also tell you that my impression of your evidence was that this took place at Josini and not near Piet Retief, but let us just accept that you intended to say that it was near Piet Retief. Can you recall that you told us that you saw him and that you didn't speak to him, nor did he speak to you?

MR MOGOAI: Chairperson, you have mentioned many things, so I am not able to find out where we are now. May you please rephrase your question.

MR MALAN: Let me just tell you something before the time. I do not want you to explain your affidavit, I want you to tell me truthfully what you recall. Do not return to what has been written and attempt to justify or explain it, I want you to tell me what you recall. I will put it to you again, you stated that you saw de Kock only upon two occasions, you saw him when he arrived and if I understood you correctly, then this would have been at Moolman, the place near Piet Retief. Can you recall that you saw him arriving there? Can you really recall this?

MR MOGOAI: I did not see him arriving, I saw him after he had arrived. I don't know when did he arrive, but I saw him after he had arrived.

MR MALAN: But then I don't understand why you needed to refer to his arrival, I must be very blunt with you about that. Of course you couldn't have seen him before his arrival, but you stated that you saw him at the place near Piet Retief, is that your evidence?

MR MOGOAI: I did Chairperson, I saw him.

MR MALAN: And did he speak to you there?

MR MOGOAI: No Chairperson.

MR MALAN: And you told us that you saw him only once at Piet Retief, did you see him more than once there or may I have misunderstood you with regard to Piet Retief?

MR MOGOAI: I saw de Kock, when you are a little bit outside Piet Retief, he came to the house where Mr Mngomezulu was brought to. Then for the second time, I saw him at Josini the following day, in the morning. Those are the two occasions where I saw Mr de Kock which I remember very well.

MR MALAN: You cannot recall that he spoke to you at the house near Piet Retief?

MR MOGOAI: No Chairperson.

MR MALAN: Very well. And then at a stage you received an order there to go to Josini, which you then carried out and you assumed that the order would have come from Mr de Kock, is that how we should understand your evidence?

MR MOGOAI: That is how I understood.

MR MALAN: You cannot recall who gave you this order?

MR MOGOAI: I am not able to recollect Chairperson.

MR MALAN: Very well. Then just to be completely certain, at Josini itself, the only occasion upon which you saw Mr de Kock there was when he walked into the room where you were with Mr Mngomezulu, there was no other occasion upon which you saw him there?

MR MOGOAI: Yes, that is correct Chairperson.

MR MALAN: Thank you Chairperson, I have nothing further.

CHAIRPERSON: Mr Motata?

ADV MOTATA: Thank you Madam Chair, just one. Mr Mogoai, did you see visible injuries on Mr Mngomezulu while he lay there motionless or unconscious or for instance when the white cloth fell whilst he was assaulted, could you see any visible injuries?

MR MOGOAI: I did see Chairperson. I saw the injuries on the face, on the hands and then on the forehead. He was swollen on the hands and even on the body. Yes, he had some injuries even on the body.

ADV MOTATA: Swollen eyes or a swollen eye, did you see a swollen eye?

MR MOGOAI: He was swollen all over the face, it is not only an eye, but the whole face was swollen.

ADV MOTATA: Could you attribute those injuries to any specific person who assaulted him?

MR MOGOAI: Yes, they were seen, that is because of the assault.

ADV MOTATA: Since you were all assaulting him at the same time?

MR MOGOAI: Please repeat your question sir?

ADV MOTATA: Since you all assaulted him at the same time, that is Mngomezulu?

MR MOGOAI: That is correct Chairperson.

ADV MOTATA: Now just briefly and in general, because you were directed as an interpreter to ask him questions, do you recall what you were asked to ask him?

MR MOGOAI: In short Chairperson, I was instructed to ask him about their discussion, his discussion with the senior officers of the PAC which he met them in Manzini. And then again as to whether does he have knowledge as to whether the PAC wanted to return to Swaziland.

ADV MOTATA: Thank you Madam Chair, I've got no further questions. Thank you Mr Mogoai.

CHAIRPERSON: Mr Mogoai, when you were instructed to put questions to Mr Mngomezulu, where were other black members?

MR MOGOAI: They were around there Chairperson, they were present.

CHAIRPERSON: I take it at that stage all of you were in that house? The people that you have mentioned, Mr Mbelo, Mr Mngadi, Moses Nzimande amongst others were with you at that time?

MR MOGOAI: Yes, we were all there present at that time, Chairperson.

CHAIRPERSON: And this request was conveyed to you at the house which you have described in your papers as being like a caravan type of a house, is that so?

MR MOGOAI: No Chairperson, at Josini.

CHAIRPERSON: To clear my confusion, when you first arrived in Piet Retief, did you spend the night in Piet Retief or did you leave for Josini?

MR MOGOAI: We left for Josini at that very same night.

CHAIRPERSON: Prior to your departure, was Mr van Dyk present in Piet Retief?

MR MOGOAI: Before we left for Josini, I do not recall whether he was there or not. I cannot verify whether he was present or not.

CHAIRPERSON: And to your recollection, was Mr Pienaar there before you departed for Josini?

MR MOGOAI: The time that you are referring to, are you referring to minutes before our departure or what, can you explain the time that you are referring to here?

CHAIRPERSON: Whether it be minutes before your departure, was Mr Pienaar around where you were in Piet Retief, at any given stage?

MR MOGOAI: I cannot recall that any more. He says that he was present that night, and he explained that Mr Mngomezulu was a PAC member, but as to whether he was there when we left, but he was present. We were there in the kombi with Mr Mngomezulu.

CHAIRPERSON: Are you saying he was present or not?

MR MOGOAI: Yes, he was present, but I do not know whether he left with us for Josini, Chairperson.

CHAIRPERSON: You got instructions to travel with Mr Beeslaar from Mr McIntyre. Did Mr McIntyre tell you who you would meet when you arrived at the place that you were to be taken to by Mr Beeslaar?

MR MOGOAI: No, he did not explain anything to me. He just told me that I should get in touch with Mr Beeslaar, because I would be leaving with him for a few days, but he did not give me any further details.

CHAIRPERSON: Did he suggest at that stage, that Mr Beeslaar would be the one to tell you what you would do on arrival at the place that you were to be taken to?

MR MOGOAI: He didn't explain anything Chairperson, he just said to me I am leaving with Mr Beeslaar, he didn't give me any further details as to Mr Beeslaar will give me further information or not. He just told me that I should be ready to leave with Mr Beeslaar.

CHAIRPERSON: When you arrived in Piet Retief, did Mr Beeslaar say to you "you are now part of this operation and you will have to participate in the interrogation"?

MR MOGOAI: Not at all Chairperson, he told me nothing.

CHAIRPERSON: Why did you then accept an order from a person that you have not been told you would be instructed by when you were requested to put questions to Mr Mngomezulu?

MR MOGOAI: Your Honour, as an askari I regarded all white officials as my seniors. I took instructions from all of them, because they regarded me as their subject, I had no choice.

CHAIRPERSON: Thank you. Mr Lamey, do you wish to re-examine?

RE-EXAMINATION BY MR LAMEY: Thank you Chairperson. Mr Mogoai, there in Moolman you said that Mr de Kock did not speak to you directly, is that correct?

MR MOGOAI: That is correct Chairperson.

MR LAMEY: Did you overhear him speaking?

MR MOGOAI: No, I didn't overhear him.

MR LAMEY: What is the basis for your conclusion that the instruction came from Mr de Kock that the person should be moved to Josini, why did you come to that conclusion?

MR MOGOAI: I assumed that he was the highest ranking officer that was present there.

MR LAMEY: So that is the basis for your assumption?

MR MOGOAI: That is correct Chairperson.

MR LAMEY: Okay.

CHAIRPERSON: Isn't it your earlier evidence Mr Mogoai, that you were told by a third person that Mr de Kock had given such an instruction that this person must be moved to Josini? I am now getting confused with this version you are now giving?

MR MOGOAI: I said that Chairperson, but this question that has just emanated now, he is asking me whether did I hear or did I assume, but I am just simply trying to respond to his question.

CHAIRPERSON: But your evidence earlier on was that you were told by a third person that Mr de Kock had given such an instruction, it wasn't because he was the senior person there and then you assumed that because of his seniority, the instruction must have come from him? This is what you were told by somebody else?

MR MOGOAI: I agree with what you are saying Madam Chairperson, but it is just that Mr Lamey is just confusing me a bit now with his questions.

MR LAMEY: I am sorry about that, that was, my intent was actually the opposite, I will try and rephrase the question. When you received the instruction to take Mr Mngomezulu to Josini, is it your evidence that a third person conveyed this instruction, but you cannot recall who that third person was?

MR MOGOAI: That is correct Chairperson.

MR LAMEY: Did that third person say that Mr de Kock gave that instruction?

MR MOGOAI: I think he said that. I assume that he said that, but I cannot recall this person.

MR LAMEY: No, I am not talking, I am not concerned whether you recall the third person, I am just concerned if you could recall what the third person said in this regard. It brings me back to the reason, the question, the reason why you came to the conclusion that Mr de Kock gave the instruction for Mngomezulu to be removed to Josini dam. That is why I am asking the question.

CHAIRPERSON: Is it not going to create more confusion for him, Mr Lamey? Don't you think we have enough in relation to what you are trying to pursue further?

MR MOGOAI: I just want to - there must have been a reason for the conclusion or the assumption, and I just want to clarify that in re-examination Chairperson, and that is what I want to do.

CHAIRPERSON: Notwithstanding the evidence that is already before us with regard to another person having told him that Mr de Kock had given that kind of an order?

MR LAMEY: As it pleases you Chairperson, I will leave it there. Mr Mogoai, then during the examination on Mr Mngomezulu, did Mr Mngomezulu at any stage when you questioned him, indicate that he does not understand the question?

MR MOGOAI: No, he never told me that he does not understand. Most of the time, he was not responding to any questions put to him.

MR LAMEY: Was the impression by everyone present, including you, that he is not co-operative?

MR MOGOAI: I cannot clearly respond to that question, I cannot say that that was just the general feeling, but I myself, I noticed that he was not determined to cooperate, that is what I personally observed.

MR LAMEY: Okay, very well. Mr Mogoai, and then you have indicated to me, this is not following from, this is not re-examination Chairperson, it is just Mr Mogoai wants to make a personal address to the family and also the other applicants, and he has prepared something himself in this regard. Could he be afforded an opportunity to?

CHAIRPERSON: Yes, he is granted such an opportunity.

MR LAMEY: Thank you Chairperson.

MR MOGOAI: Thank you Chairperson. I will try to use English if the Chairperson allows me to.

CHAIRPERSON: Yes, you may proceed Mr Mogoai.

MR MOGOAI: Chairperson, I firstly want to emphasise my feelings in this hearing, in two phases. The first phase deals with us. By us I mean myself and my former colleagues at Vlakplaas, especially those who are present or who have been present in this hearing. My second phase will deal with my feelings towards the whole issue, towards the family. I have been saddened during this hearing to realise once more that the spirit of distrust that prevailed in Vlakplaas, is still lingering on our minds even today. Equally, I am optimistic that an anchor of reconciliation that persists here should to even further than to be reconciled with those we hurt, but should also be extended among ourselves as former colleagues. I therefore take this opportunity remorsefully to ask for forgiveness from the family of the late Mr Mngomezulu and the community at large, about my sinful and wasted years of impunity. Then lastly Madam Chair, I hope that my impression upon the Committee during my testification, was not contrary to this realisation. Thank you Madam Chair.

CHAIRPERSON: Thank you Mr Mogoai. You are excused as a witness.

ON RESUMPTION:

CHAIRPERSON: Mr Nel, are we going to hear the evidence of Mr Mngadi?

MR NEL: Madam Chair, I am going to be very brief, as he has dealt with the issue in an extensive supplementary affidavit. If you would like me to proceed now, I am ready Madam Chair.

CHAIRPERSON: Yes. What language is he using, Mr Mngadi?

MR NEL: Mr Mngadi will be speaking Zulu, Madam Chair. Madam Chair, could we just be afforded one second, my friend has just indicated that he wants to make certain adjustments to the microphones. Thank you Madam Chair.

MZUZU AUBREY MNGADI: (sworn states)

CHAIRPERSON: You have been sworn in, you may take your seat now.

EXAMINATION BY MR NEL: Thank you Madam Chair. Mr Mngadi, you are an applicant in these proceedings, and your application is found in the bundle, on page 148 up and until page 154, is that correct?

MR MNGADI: That is correct.

MR NEL: Except for the correction which I am going to make, which appears on page 150, do you confirm your application as being true and correct?

MR MNGADI: That is correct.

MR NEL: On page 150 you state in the first sentence or the second sentence under "Nature and Particulars" -

Is it not so that you were under the direct command of Capt van Dyk and not Capt Pienaar?

MR MNGADI: That is correct, that was a mistake.

MR NEL: And we have heard the evidence of the other applicants and it seems as if it must be a mistake on your part, that Capt Pienaar never went into Swaziland?

MR MNGADI: That was a mistake.

MR NEL: Mr Mngadi, you have also made a supplementary affidavit which was signed by yourself at Pietermaritzburg on the 20th of September 1999, am I correct?

MR MNGADI: That is correct.

MR NEL: The Committee has indicated to us that it is not necessary to go through such a supplementary affidavit, because that is the purpose of such an affidavit, and I am not going to deal extensively with this affidavit, except for a few corrections. Apart from those corrections which I will make, do you confirm the contents of your supplementary affidavit as being correct?

MR MNGADI: That is correct.

MR NEL: If I may refer you to paragraph 27 which is on page 16, according to your paragraph there, it seems as if you recall that the person who we now know is Mngomezulu was placed into Mr van Dyk's vehicle, but that is contrary to the evidence that was heard here today, in fact, or not today but during the hearing, and it seems as if Mngomezulu was placed in the kombi of which you were the driver. Is it possible that you could have been making a mistake when you said that he was placed in van Dyk's vehicle?

MR MNGADI: That is correct, that was a mistake as well, because it was in the evening, and it has been a very long time since this thing happened.

MR NEL: Also can I refer you to page 18, paragraph 34 where you stated that after the operation in Swaziland, Mngomezulu or this person, was taken to a house at Leeuspoort. It seems that once again you made a mistake or cannot remember that this person was taken to another place at Piet Retief, which we know now was the caravan place?

MR MNGADI: Looking at this testimony here, a mistake happened, I was not remembering everything as I ought to, but I then rectified that mistake later. Would you please accept the rectification of this mistake as it were.

MR NEL: Is it also so that during even our consultations, you indicated that you do even still today, do not remember the fact that Mngomezulu was taken to this place near Piet Retief?

MR MNGADI: That is correct indeed. I was not recalling this quite well or should I say, at all.

MR NEL: Mr Mngadi, on page 170 of the Bundle, Mr Nofomela, also an applicant in these proceedings, states that you received a reward of R300-00 for your participation in this operation, do you agree with that?

MR MNGADI: I dispute that. We did not receive any reward.

MR NEL: Did you in fact receive any reward for your participation in this operation?

MR MNGADI: I did not receive any reward.

MR NEL: There has been evidence, especially from Mr Koole that you took part in the assault on Mr Mngomezulu. Throughout our consultations and what I have put to the other applicants is, you say that you never took part in the assault. Is it not so that if you did take part in the assault on Mr Mngomezulu, you would have asked for amnesty for that?

MR MNGADI: I would do that indeed.

MR NEL: Were you driven by any spite or malice in taking part in this operation?

MR MNGADI: No, I was not spiteful, I had nothing against him.

MR NEL: Mr Mngadi, there is one other last aspect. At the time you were a new member at Vlakplaas, am I correct?

MR MNGADI: Yes, I was still new and I was not quite familiar with the procedures in that place.

MR NEL: And your Overall Commander was Col de Kock?

MR MNGADI: That is correct.

MR NEL: Was Col de Kock at Piet Retief or Josini or wherever during this operation?

MR MNGADI: He was not there, I did not see him.

MR NEL: Mr Mngadi, are you then asking for amnesty for any offence which might flow from your participation in this operation and also any delict which might stem from your participation in this operation?

MR MNGADI: That is correct, that is why I submitted my amnesty application, because I am involved in this matter, even though I did not lay my hand on Mr Mngomezulu.

MR NEL: Thank you Madam Chair, that is the evidence.

CHAIRPERSON: Thank you Mr Nel. Mr Hattingh?

MR HATTINGH: Thank you Madam Chair, I have no questions.

CHAIRPERSON: Mr du Plessis?

MR DU PLESSIS: I have no questions, Chairperson.

CHAIRPERSON: Mr Lamey? Mr Williams?

MR WILLIAMS: I also have no questions, Madam Chair.

CHAIRPERSON: Mr Lamey?

CROSS-EXAMINATION BY MR LAMEY: Just here and there Chairperson, thank you. Mr Mngadi, the informer was in the vehicle, I refer to paragraph 23 of your supplementary statement, page 15. Can you recall clearly whether he remained the whole time, in the vehicle, or was he not the person that, as Mr Koole testified, who would actually show and indicate the subject, Mr Mngomezulu, point him out during the abduction?

MR MNGADI: Yes, there was this informer, he was left behind by Mr van Dyk and myself and the informer remained behind, looking after the vehicle.

MR LAMEY: What was the purpose of the informer going with?

MR MNGADI: The purpose thereof, as far as I understood it, is that Mr van Dyk and the informer had already pointed out the area and he then brought him back, so that he could be with us, and there was also one other person who knew Mr Mngomezulu's household.

MR LAMEY: So are you saying that the informer did go out with Mr van Dyk to point out the person?

MR MALAN: No Mr Lamey, that is not what he said.

CHAIRPERSON: That is not what he said.

MR MALAN: He said they had scouted the area, they came along because he knew the area and they could point out the area. He didn't say they ever left the kombi.

MR LAMEY: Well, did they get out of the vehicle to point out the place where he was staying?

MR MNGADI: They had already done that with the informer, because we only arrived at the time when we met him. The informer came out of his vehicle, to come into our vehicle, the kombi.

MR LAMEY: Oh, I see, so there was a stage that the informer was not in your vehicle?

MR MNGADI: That is correct.

CHAIRPERSON: How do you know that Mr Mngadi?

MR MNGADI: I know that because Mr van Dyk at the time of our arrival and parking there, the informer left his vehicle and came to the vehicle in which I was sitting. I had received an instruction to the effect that I should look after the vehicles. That is the time at which the informer came to our kombi. I therefore have no knowledge as to when they had gone out to the area.

CHAIRPERSON: To reconnoitre the area? You have no knowledge as to whether the informer had pointed out the area earlier on?

MR MNGADI: As far as I am concerned, they had already carried out the reconnoitring. The house had already been pointed out. That is at the time which the, or should I say after which the informer was brought to me.

CHAIRPERSON: Mr Lamey?

MR LAMEY: Now, how would the members, I understand that you remained behind in the vehicle with the informer after he pointed out the area, how did the other members know which man to take and from which place?

CHAIRPERSON: Isn't that an unfair question, Mr Lamey? To start with, it is not his evidence that the informer was pointing the place to him, he was following Mr van Dyk who was leading the way. That is his evidence.

MR LAMEY: All right, let me just get to the point here. From Mr Koole's vantage point, he was involved in the abduction and his recollection is that the informer pointed the person out, who they should abduct. He says there was firstly an indication of a wrong place, and then they found the right house. Do you dispute that at all?

MR MNGADI: I was not there when they got lost.

CHAIRPERSON: He is referring to Koole's evidence that the informer came out of their vehicle so that he could point out Mngomezulu?

MR MNGADI: That was a mistake that Mr Koole made, because the informer remained in the vehicle with them.

MR LAMEY: If you say the informer remained with them, what do you mean by that?

MR MNGADI: He remained in the vehicle with me.

MR LAMEY: How would Mr Koole and the other black members that actually took this person, how would they know who to take?

MR MNGADI: There is one other person who knew Mr Mngomezulu, his name is Mr Nzimande, Moses Nzimande, he is deceased.

MR LAMEY: Are you then saying that Mr Koole has confused Mr Nzimande with the informer?

MR MNGADI: That is indeed so.

MR LAMEY: Prior to that, the informant did - did he just indicate the area or did he indicate the house where Mr Mngomezulu stayed?

MR MNGADI: I have no knowledge to that effect, because the informer was with Mr van Dyk.

MR LAMEY: Okay. Then I just want to ask you about what you stated in paragraph 35 where you stated -

What is your meaning regarding that last sentence "I thought that he was the main interrogator"?

MR MALAN: Mr Lamey, was that not also the evidence of your own applicant, that he is quite happy to have been seen as the main interrogator, because he took the active role?

MR LAMEY: Yes, but there is in my impression in that evidence, a great measure of relevancy to that statement, relative...

MR MALAN: Then please proceed, I don't see it, but proceed then please.

CHAIRPERSON: I think it is fair for you Mr Lamey, to find out if Mr Mngomezulu can respond to why he thought Mr Mogoai, if Mr Mngadi can respond to why he thought Mr Mogoai was the main interrogator.

MR LAMEY: Sorry Chairperson, I have just expressed myself wrongly when I talk about relevancy, I talk about relativeness. You know the relativeness with regard to this concept, and that is actually what I have tried just to establish.

CHAIRPERSON: Yes.

MR LAMEY: I know that Mr Mogoai testified that he had a prominent role, relative to the others, but I just want to clarify this with him. What is your meaning with that, Mr Mngadi?

MR MNGADI: He was the older person and very active in asking questions. I therefore assumed that he was the one delegated to conduct the investigation of Mngomezulu.

MR LAMEY: Okay, so you say delegated to ask questions to Mr Mngomezulu. But delegated by his superiors to do that, is that correct?

MR MNGADI: Yes, yes, he was the one who was asking questions most of the time.

MR LAMEY: Okay.

CHAIRPERSON: May I interpose Mr Lamey? As far as you are concerned, when Mr Mogoai asked Mr Mngomezulu questions, among the whites, would you say there were those who were in the forefront, explaining to Mogoai what kind of questions to pose?

MR MNGADI: I only went in to that room once, that is the interrogation room, that is when I observed this.

CHAIRPERSON: Did you observe that there were whites telling Mogoai what kind of questions to ask?

MR MNGADI: Yes.

CHAIRPERSON: Thank you, proceed Mr Lamey?

MR LAMEY: Mr Mngadi, you were a junior member at that stage of Vlakplaas, is that correct?

MR MNGADI: Yes, I had just arrived.

MR LAMEY: Were - at Moolman during the interrogation, well you have said that you cannot recall that, it is possible that it was so, let me then just talk about Josini, during the interrogation at Josini, were you the whole time present during the interrogation, were there times that you were out and around, doing some other tasks?

MR NEL: With respect Madam Chair, the evidence was that he only entered once, that is what Mr Mngadi indicated, he was not there all the time.

MR LAMEY: Yes, I just want to go further than that, where he was, if he was not there.

MR MALAN: Then ask him that question.

MR LAMEY: What would you do if you were not present during the interrogation?

MR MNGADI: I was in another house with the informer because my assignment was to stay with him in another room.

MR LAMEY: If you say that Mr de Kock was not at Josini, you say it because you personally did not see him there?

MR MNGADI: I did not see him.

MR MALAN: Sorry Mr Lamey, on this point, Mr Mngadi. If you look at paragraph 33 of your statement, on page 18 of your supplementary statement, you there say that after you had passed through the border, which is paragraph 32, and paragraph 33 you say -

Do you see that?

MR MNGADI: Yes, I see that.

MR MALAN: Was it this informer that you had to take care of at Josini, in the house?

MR MNGADI: Your Honour, this has happened a long time ago. Here the meaning was that when we split, that is when they went to cross the border, I met them on the other side of the border gate, the Gulela border post. There was a mistake again here because you know, it has been a long time since this thing occurred, please bear with me.

CHAIRPERSON: You say -

MR MNGADI: There was a group of them when they left, and I only met them on the other side of the border, and they were with other members. Other members went through the border post, and others they crossed through the border fence.

MR MALAN: Mr Mngadi, in paragraph 33 you say, and I just quote these words at the end of the first line -

Do you see that?

MR MNGADI: Yes, I see that, that was a mistake.

MR MALAN: Did you see the informer again or did you not see the informer again?

MR MNGADI: Yes, I did see the informer again. I did see the informer. My assignment was to look after him.

MR MALAN: For how long did the informer stay with you?

MR MNGADI: When or should I say the time when it was instructed that we should go back to Piet Retief, I took the informer into a vehicle with other members and along the way, in Pongola, I dropped him off, so that he could go on his own.

MR MALAN: Where did you drop him off?

MR MNGADI: I dropped him off at Pongola, in town.

MR MALAN: Who gave you instructions to drop him off?

MR MNGADI: The instruction did not come directly, the one person who relayed an instruction, was Mr Koole to the effect that now we can go back to Piet Retief, taking along the informer whom we had to drop along the way, so that we dropped him at Pongola.

MR MALAN: Thank you Mr Lamey.

MR LAMEY: So, at Josini, my impression is from your evidence, that most of the time you were assigned to look after the informer, is that correct?

MR MNGADI: Yes, that is correct.

MR LAMEY: Thank you, I've got no further questions, Chairperson.

CHAIRPERSON: I thought maybe you would actually have better instructions, Mr Lamey, about the question of the informer, from Mr Mogoai, his presence at Josini?

MR LAMEY: At Josini? Yes, may I just take instructions there, thank you. Chairperson, Mr Mogoai says he hasn't got any knowledge of an informer.

CHAIRPERSON: He does not have knowledge of an informer having been present at Josini?

MR LAMEY: No.

CHAIRPERSON: Don't you want to put that to Mr Mngadi?

MR LAMEY: Mr Mngadi, I understand your evidence that you had to keep this informer in another house, is that correct?

MR MNGADI: No, I mean in another room, the house had several rooms.

MR LAMEY: Yes. Now, Mr Mogoai, may I just get further instructions here from Mr Mogoai Chairperson, I just want to ...

CHAIRPERSON: You are acting for both Mr Mogoai and Mr Koole, isn't it?

MR LAMEY: Yes, yes. Mr Koole is unfortunately not present here, he had a doctor's appointment as far as I understand.

CHAIRPERSON: Yes. How long do you think it would take you to take instructions?

MR LAMEY: Just a minute Chairperson, thank you. Mr Mngadi, I just want to put it to you, Mr Mogoai says he has no knowledge of an informer being at Josini and he hasn't seen any person who he thought could have been an informer.

MR MNGADI: He was present.

MR LAMEY: Thank you Chairperson.

CHAIRPERSON: Thank you Mr Lamey? Mr Prinsloo?

MR PRINSLOO: I have no questions, thank you Madam Chair.

CHAIRPERSON: Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Mr Ramawele?

CROSS-EXAMINATION BY MR RAMAWELE: Just one question, thank you. Mr Mngadi, it is your testimony that at the time when the deceased was abducted, the informer was in your vehicle, is that so?

MR MNGADI: That is correct.

MR RAMAWELE: I just want to put it to you that Mr Nofomela will testify that the informer pointed out the place and the deceased and the deceased was subsequently abducted, the informer was not in your vehicle at that time.

MR MNGADI: I was with the informer all of the time in the vehicle. One other person in our company, or one other person who could have helped them out was Mr Nzimande.

MR RAMAWELE: In other words you are saying that, you are saying that the informer was inactive at the time of the abduction of the deceased?

MR MNGADI: That is correct.

MR RAMAWELE: I've got no further questions, thank you.

CHAIRPERSON: Mr Kgasi?

CROSS-EXAMINATION BY MR KGASI: Thank you Madam. Mr Mngadi, it appears to me that you have spent quite a considerable time with this informer, is that so?

MR MNGADI: Would you please explain from what time, first of all I was with him in the vehicle, that is at the time when they came, when they went to arrest Mr Mngomezulu, and there is this second time that is the time when I was with him in the house, on the farm, Leeuspoort.

MR KGASI: Okay, thank you. You keep referring to this person as an informer, do you perhaps know his name?

MR MNGADI: I don't know his name, I did not ask him.

MR KGASI: Is there anyone - I am sorry, you don't know, is it your answer that you don't know the name of this informer?

CHAIRPERSON: Yes, it is his answer.

MR MNGADI: That is correct.

MR KGASI: All right. And was it further your testimony that you believed that Mr Nzimande is the one who pointed Mr Mngomezulu out?

MR MNGADI: That is correct.

MR KGASI: Now, Mr Mngadi, in your opinion, this informer, what was his role after all?

MR MNGADI: His role was to accompany Mr van Dyk, show him the place where Mr Mngomezulu resided.

MR KGASI: Only that?

MR MNGADI: I know not of any other role.

MR KGASI: Now, I would also like to go to your answer where you said, where you denied receiving any financial benefit out of this operation. My question would only relate to why would Mr Nofomela implicate you if that is not so?

MR MNGADI: He must be mistaken, because I did not receive any money. As a police, we were not expected or required to accept such kind of reward.

MR KGASI: Is it further your testimony that you did not take part in the assault and interrogation of Mr Mngomezulu?

MR MNGADI: That is correct.

MR KGASI: Now tell me, at the time when you and other black members of this interrogating team left, did you see Mr Mngomezulu, tell us his state by then?

CHAIRPERSON: As him the first question first. Did he see Mr Mngomezulu the time shortly before their departure?

MR KGASI: That is correct, you may answer, Mr Mngadi.

MR MNGADI: I did not get into the house. The only one time that I went into the house was when I was requested by Mr Koole who wanted me to explain to him the names of places.

MR KGASI: At the time, that only time when you entered the house, did you see Mr Mngomezulu?

MR MNGADI: That was the time at which I saw him. I cannot explain in full, because it was obvious that it was Mr Mngomezulu who was wanted.

MR KGASI: I am getting a little confused here. Can you repeat your answer?

MR MNGADI: When I went in there, there is only one person who was there, and that is the only person who was being questioned. It transpired to me that it could be Mngomezulu.

MR KGASI: The question Mr Mngadi was, did you see Mr Mngomezulu when you entered the house?

MR MNGADI: Yes, I saw him.

MR KGASI: And what was his state then?

MR MNGADI: There were some indications on his face, that he had been beaten up.

MR KGASI: And what indications are those?

MR MNGADI: He was pale and he had pale lips, an indication that he had been slapped.

MR KGASI: Any visible injuries except a pale skin?

MR MNGADI: I did not really concentrate on that, I had been there only for a short while, and I went out. I had been asked in by Mr Koole.

MR KGASI: But surely Mr Mngadi, if you can notice a pale skin, you can as well might have noticed other injuries.

ADV MOTATA: Grey skin.

CHAIRPERSON: Grey?

MR KGASI: Yes, Mr Mngadi, if you could have noticed a grey skin, surely you could have noticed whether he had injuries or not?

MR MNGADI: I did not spend a long time in there, I went in and explained to Koole and then I left.

MR KGASI: And further, for that brief period that you saw him, was he blindfolded?

MR MNGADI: When I entered, I did not see any cloth around his eyes. Whether they had removed it or not, I have no idea. You see, I was not in the room where the interrogation was taking place, I was in another room.

CHAIRPERSON: Would you try to answer the question without elaborating. When you entered, was his eyes blindfolded or not?

MR MNGADI: No, he was not blindfolded. I did not see this cloth at the time when I entered the room.

MR KGASI: I take it that the answer is he was not blindfolded?

CHAIRPERSON: Yes, that is his answer.

MR KGASI: Thank you Madam, I have no further questions.

CHAIRPERSON: Mr Mngadi, you are talking about Koole here, is he the one who said you should come in and assist with interpreting?

MR MNGADI: Koole requested me to give him names of places, I don't know in connection with what, and I told him such and such a place is to be found where, wherever.

CHAIRPERSON: Was it himself who was interrogating Mr Mngomezulu at the time?

MR MNGADI: There were many of them. Koole asked me that and I explained to him as a person who spends most of the time in Josini and I went out. I had been assigned to look after this person.

CHAIRPERSON: Did you have any in depth knowledge about Josini, apart from the rest of the people?

MR MNGADI: I was working at Josini.

CHAIRPERSON: Yes. Mr Malan, do you have any questions to put to Mr Mngadi?

MR MALAN: I just want to refer you Mr Mngadi, to your paragraph 36, on page 19 where you say, when you were called in to assist with this interpretational problems, you "noticed that the arrested person was indeed Mngomezulu." Did you know him from before?

MR MNGADI: At the time when I was at Josini, there are these small photographs, the ones that you would find affixed against the wall, and when I saw him at the time, back in my room, on recollecting, it occurred that that was the person whose photograph I saw in the office in Josini.

CHAIRPERSON: As you explained in paragraph 40?

MR MNGADI: Yes.

CHAIRPERSON: And paragraph 41?

MR MALAN: I have read paragraphs 40 and 41, I want to make sure, did you recognise him only from the photo or had you ever before seen him in person?

MR MNGADI: I had not met him in person, I only saw the photograph of him, until I saw him in person on the day of his arrest.

MR MALAN: When you went out on this mission, you knew that you were looking for this same Mngomezulu?

MR MNGADI: I did not know, I only learnt when I was informed by Mr van Dyk, upon arrival. He told me that we were going to Swaziland for an operation, and upon arrival, I also got this from an informer when I enquired, I would not have enquired more than I did, because that would be an offence. That is when I learnt that that was Mr Mngomezulu's household. It occurred to me that that was the person that was being sought.

MR MALAN: Just for my clear understanding, when you were informed by van Dyk that you were going out to abduct or arrest as you stated, Mr Mngomezulu, you already had a picture in mind as to exactly what he looks like, because of the photograph then, or did you not know then what Mr Mngomezulu would look like?

MR MNGADI: I had no idea how he looked like.

MR MALAN: Only when you saw him in person, did you realise that he was the person on the photograph, is that your evidence?

MR MNGADI: Yes, that is correct. Even though the photograph showed him in his younger age, but yes, it was him.

MR MALAN: Thank you. This is really the reason why I am asking you this question, because then he would obviously not have been blindfolded as you have been giving evidence, otherwise you would not have remembered the photograph? You are sure he wasn't blindfolded?

MR MNGADI: Yes, he was not blindfolded when I entered the room.

MR MALAN: Thank you. Thank you Chair.

CHAIRPERSON: Mr Motata?

ADV MOTATA: I've got none, Madam Chair. Thank you.

CHAIRPERSON: Mr Nel?

RE-EXAMINATION BY MR NEL: Just one issue, thank you Madam Chair. Mr Mngadi, page 18, I think it has been cleared

up, but just if we can make sure, page 18, paragraph 33, when you dealt with not seeing the informer again, do you specifically as you did during consultation, refer to at the border?

MR MNGADI: One other thing that I would like to point out in front of this Committee, to date I had not seen him ever again.

CHAIRPERSON: That is not the question. The question pertains to that which you had already said in paragraph 33 that after you had split, you never saw the informer again.

MR MNGADI: That was a mistake Ma'am.

CHAIRPERSON: I am still continuing. Your legal representative wants to know that are you saying here you never saw the informer at the border?

MR MNGADI: No. My intention here was that after we had dropped him off at Pongola, I never saw him again, that is what I wanted to say.

CHAIRPERSON: Mr Nel?

MR NEL: Just lastly, if I may just try to clarify this maybe just for myself, in paragraph 33, is it your intention to say that you did not see him cross the border, but you did meet him again on the other side of the border, with the other members?

MR MNGADI: Yes.

MR NEL: Thank you, I have nothing further.

CHAIRPERSON: Mr Mngadi, you are excused as a witness.

MR MNGADI: Thank you Chairperson.

ON RESUMPTION:

CHAIRPERSON: Mr Ramawele?

MR RAMAWELE: Thank you Chair, we are ready to proceed and Mr Nofomela will testify in Xhosa.

CHAIRPERSON: Xhosa?

MR RAMAWELE: Yes.

ALMOND BUTANA NOFOMELA: (sworn states)

CHAIRPERSON: You may be seated, you are fully sworn.

EXAMINATION BY MR RAMAWELE: May I proceed? Thank you. Mr Nofomela, is it correct that you have made several applications for amnesty, for amnesty, including this one, which we are busy with today?

MR NOFOMELA: That is so Chairperson.

MR RAMAWELE: Is it correct that in this amnesty application, it is found on page 169 until page 171?

MR NOFOMELA: That is so Chairperson.

MR RAMAWELE: Is it further correct that you confirm the contents of your written amnesty application, except that there are certain portions where you would correct at?

MR NOFOMELA: That is so Chairperson.

MR RAMAWELE: Is it further correct that at the time of the occurrence of this incident, you were a Sergeant stationed at Vlakplaas?

MR NOFOMELA: That is so Chairperson.

MR RAMAWELE: Now, relating to this incident, from Vlakplaas when you went on a mission, on this particular incident, do you remember from Vlakplaas, where did you go?

MR NOFOMELA: From Vlakplaas we went to Piet Retief.

MR RAMAWELE: What were you supposed to do in Piet Retief as you left Vlakplaas?

MR NOFOMELA: We were just being called to go and work in Piet Retief, to go and patrol the area, which was just normal duties and to check on people who were working for organisations like the PAC and ANC.

MR RAMAWELE: Can you recall who were the members from Vlakplaas who went to Piet Retief with you, or whom you know went to Piet Retief?

MR NOFOMELA: I cannot recall them clearly, but the ones that I can clearly recall are Thabelo Mbelo who is Johannes Mbelo, Koole, Jeffrey Bosigo, Petrus Mogoai, Chris Mogopa, Aubrey Mngadi. The rest I cannot clearly recall the names.

MR RAMAWELE: What about Paul van Dyk?

MR NOFOMELA: He was present and he was our leader, our Commander.

MR RAMAWELE: What about Thabo Makage?

MR NOFOMELA: Yes, he was also present.

MR RAMAWELE: You then left for Piet Retief?

MR NOFOMELA: That is correct sir.

MR RAMAWELE: Where did you then arrive, in Piet Retief, where did you go?

MR NOFOMELA: We went to the Escom sub-station at Moolman, where there was caravan like houses, and that was our base.

MR RAMAWELE: And as you were there, what happened?

MR NOFOMELA: I cannot recall the day precisely, but Mr van Dyk called me and Mngadi and Koole and Mbelo and he told us that there was something that we had to do, which was to go and abduct Mr Mngomezulu. Whether he mentioned the name or not, but I just heard the name later, but I learnt at the stage that he was being referred to as a PAC member. That is the order that we got from Mr Paul van Dyk.

MR RAMAWELE: When were you supposed to go and abduct Mr Mngomezulu, because we know it is now Mr Mngomezulu, when were you supposed to go and abduct him?

MR NOFOMELA: I cannot confirm that, at what stage were we told and when were we supposed to do it, but as soon as we got the order, we followed the order and we went. He gave us somebody who would show us the directions or will point out the place and the person, on our arrival there. The one person that I had forgotten that he was present is Moses Nzimande, but having heard the evidence given here, it is now that I recollect that he was there as well.

MR RAMAWELE: I see. The person you are talking about, was given to you by Paul van Dyk. Are you talking about the informer?

MR NOFOMELA: Yes, that is the informer Chairperson.

MR RAMAWELE: And did you then go to abduct the deceased?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: Do you remember how many of your members went with you?

MR NOFOMELA: I cannot explain it precisely, step by step, but what I can clearly recall is that we went through the fence, not through the border post. It was in the evening. I was with Mbelo and Koole and Nzimande and the informer. On our arrival there, we went into another house, the informer knocked and nobody responded, and then he said, "this is the wrong house", and then we proceeded to another house, and when we got - but at the gate there were a lot of dogs, somebody came outside and sat at the stoep, on the stoep, and we entered into the house, because this informer was next to me. Although the dogs were being destructive and we, he kicked the dogs and he pointed out the man which was Mr Mngomezulu, who came outside. He came out of his house, that is when I approached him with a firearm and pointed him in his face.

MR RAMAWELE: Where was Mr Mngomezulu at the time when he was pointed out by the informer?

MR NOFOMELA: He was standing at the doorstep, the dogs were barking and because of that, he emerged from the house. The informer was walking next to me and I was, the others were kicking the dogs and the informer pointed him out "there he is standing on his stoep", and he was actually looking in our direction.

MR RAMAWELE: Do you know at that stage, where Mr Mngadi was?

MR NOFOMELA: He was not with us at that time, he was in the car.

MR RAMAWELE: Do you know with whom he was in the car?

MR NOFOMELA: Yes, I know.

MR RAMAWELE: With whom was he?

MR NOFOMELA: He was alone sir.

MR RAMAWELE: The informer pointed out Mr Mngomezulu and what happened?

MR NOFOMELA: Thereafter I pointed him with the firearm and I asked him to accompany us. I don't remember what he said when he responded, but he was resisting. That is when I slapped him. I do not remember who joined in, we grabbed him, I hit him once more and we dragged him out of the stoep and out of his yard and we left with him. This did not happen very quickly, because he was resisting and the dogs were charging as well. Some were busy kicking the dogs, and we were busy with him. I saw one of us, one of us who was absent in our group, and I realised that he was inside the house, he had remained inside the house. I don't remember whether was it Moses or not, when I went back into the house, I asked him what was happening, he said to me "he was searching for any firearms". He had a lamp that would just be used with paraffin and a cloth, a torch like lamp. I did not know as to what was he busy doing, but he explained to me that he was searching for any firearms that was present, but I told him that the dogs are making a noise outside, so it is best that we go away. We ran outside and we found the others who were hiding around the house.

MR RAMAWELE: What happened to the lamp?

MR NOFOMELA: I do not know what happened to that lamp, but the way I put it underneath the bed, it could have caused a fire damage, it could have burnt down the house.

MR RAMAWELE: Can you tell the Committee why you put it under the bed?

MR NOFOMELA: What I had in mind honestly, was to actually burn that house down.

MR RAMAWELE: I see. And then you then went away with Mr Mngomezulu?

MR MALAN: Sorry, just before you proceed. Did you indeed burn the house down?

MR NOFOMELA: I do not have proof as to whether that house burnt down or not.

MR MALAN: Thank you.

MR RAMAWELE: You then left the scene with Mr Mngomezulu? You then left the scene with Mr Mngomezulu?

MR NOFOMELA: That is correct sir.

MR RAMAWELE: Explain to the Committee, from leaving his house, where did you go, where did you put him, etc, etc?

MR NOFOMELA: Mr Mngomezulu was resisting as I have previously mentioned, and therefore we had to beat him up thoroughly, I played a role in that. I cannot actually mention who beat him where, but some of the people who were in my company, did beat him, because he was not walking when we were walking across the fence when we were crossing the border line, we had to lift him on our way.

MR RAMAWELE: Were you travelling on foot?

MR NOFOMELA: That is correct, we were on foot, sir.

MR RAMAWELE: Proceed.

MR NOFOMELA: After having crossed the border through the fence, I do not remember whether we jumped the fence or crawled underneath, we met Mr Mngadi who was driving in a car. He was waiting for us, I don't remember exactly where precisely, but we found him, and we went into the car, but the informer left with Mr van Dyk. Our car was being driven by Mr Mngadi and we were following Mr van Dyk's car.

MR RAMAWELE: Thank you, proceed.

MR NOFOMELA: We arrived at a certain house which looked very deserted, we were told that we must carry him into the house, we were instructed by Mr van Dyk. There were other white men who were there, I do not recall their names, and we did as we were instructed. After having put him in the house, I do not recall exactly what happened to him, but what I recall is that I saw Peter Mogoai present there and he was asking questions during the interrogation.

MR RAMAWELE: Did you participate in the interrogation yourself?

MR NOFOMELA: Not at all Chairperson.

MR RAMAWELE: At this deserted house, did you participate in the assault?

MR NOFOMELA: I never had any contact with him after having carried him into the house, but if I can recall clearly, Mr van Dyk sent me to go and get Chris Mogobo who was a PAC member, who had a lot of knowledge about this man. At that time, he was at our base at Piet Retief, so I had to go and pick him up from there. I am not sure whether did I go and pick him up on that very same day or the following day.

MR RAMAWELE: But eventually you did go and fetch Chris?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: What happened further?

MR NOFOMELA: We were asking him questions, me, myself and Mr Mngadi. We were most of the time after having brought Chris Mogobo. What I was busy doing, I was being sent around by Mr van Dyk on errands like going to buy food, or sometimes he would sent Mr Mngadi.

MR RAMAWELE: I see. Just to come back to the night of the abduction, after having taken the deceased into the house, do you remember what role you played, just after he had been put inside the house, do you remember what role you played?

MR NOFOMELA: There is nothing else that I did more than the fact that I had to go and pick up Chris Mogobo and buying food. I had nothing to do with him after having brought him into that house.

MR RAMAWELE: And after you had brought him inside the house and subsequently went to fetch Chris, did you see Mr Mngomezulu after that? Did you see him at any stage after you had put him inside the house?

MR NOFOMELA: I remember when I was being called by Mr van Dyk to go to Piet Retief, I entered the house and I found him sitting on the floor. I saw him sitting on the floor, but I was just busy talking to the person who gave me the message and a day after I was there, I went back to Piet Retief, to join other askaris who were busy patrolling in that area.

MR RAMAWELE: Do you know why you had to go back to Piet Retief to join the askaris?

MR NOFOMELA: There were many askaris in Piet Retief, I think we arrived with three kombis, but the people who were in charge at that time, was Mr Mngadi and Koole and Mbelo, but I got instructions that I must go and see if there is anyone who was in charge during our absence.

MR RAMAWELE: Having gone to the askaris, did you have anything to do with the, anything to do with Mr Mngomezulu after that or was it the last time that you had anything to do with the deceased?

MR NOFOMELA: That was the last time I saw him or had anything to do with him.

MR RAMAWELE: So in short you are saying this is what happened about the abduction and killing of Mr Mngomezulu?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: At the time of the abduction of Mr Mngomezulu, as you said already, you were a Security Police officer, stationed at Vlakplaas and you were a Sergeant as you have already said?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: When you went to, when you went to abduct the deceased, what did you believe, did you think that it was justified for you to do so?

MR NOFOMELA: I believed that what I was doing, was lawful given the situation that was prevailing at that time in South Africa and the circumstances under which I worked in C1 Section at Vlakplaas, which was fighting against activists because we were under the impression that these people will overthrow the government and at that time, what I did at that time, I believed sincerely that it was lawful. I also believed that I was fighting against people who were opposing the State.

MR RAMAWELE: I see.

CHAIRPERSON: Mr Ramawele, I see you are now dealing with his political motivation, are you now through with the evidence?

MR RAMAWELE: I am through, but I am just going to come to his written application.

CHAIRPERSON: Yes, I thought you would do that before you proceed to give us details about his political motivation.

MR RAMAWELE: I am sorry, Madam Chair, I will come straight to that. Mr Nofomela, in your written application which is before the Committee, you say that you participated in a team which comprised of Maj de Kock, Lt van Dyk, Aubrey Mngadi, Warrant Officer Koole and one Christopher Mogobo. Today you haven't mentioned Maj de Kock? What is the reason?

MR NOFOMELA: Chairperson, Mr de Kock there are a lot of things in which I participated in under his orders, or his command. The reason why I am not mentioning him today, it is because there was a time when I was listing all the things that I was applying for amnesty for, and my legal representative at that time, did not have enough time to try and dissect all the things and the time period in which they happened. Therefore there is this mistake that I have done, and I therefore caused a confusion in terms of what have I done under Mr de Kock's command, but honestly at that time, he was not there, to give me instructions pertaining to this issue of Mr Mngomezulu.

MR RAMAWELE: Again relating to Mr de Kock, you mentioned that he said that the man had to be killed, in fact you mentioned later that the man had been killed. Is that the position or what is the position?

MR NOFOMELA: Even that, it is a mistake Your Honour, because there was an incident that took place in Chesterville where he told me that the people were going to be killed, therefore that was an error in my evidence. It was not true.

MR RAMAWELE: I see. Further on in your statement, you say that after the incident, Mngadi, Koole and yourself received a reward of R300-00, did you receive any reward from Mr de Kock after this incident?

MR NOFOMELA: That is not correct sir, I got no reward. It is because of, there are occasions when we got rewards, but in this particular occasion, I did not get a reward, but this I picked up when I went through consultation with my legal representative. This is when we picked up this error.

MR RAMAWELE: And it is also so that you are saying that the deceased from the place where he was abducted, he was taken to Pongola and not between Pongola and Piet Retief?

MR NOFOMELA: It is because that some of the time I would be buying the food from Pongola or most of the time I was buying the food from Pongola, that is why I had the confusion that we were at Pongola, but if anyone can tell me that it was not Pongola, I would not dispute that, because they might be knowing the area better than me.

MR RAMAWELE: And you also said from an answer from the Chair, that in fact you did not set the house alight, but you just left a lamp underneath a bed?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: At the time when you made this application, was your recollection of these events, still very fresh?

MR NOFOMELA: I did not recall everything exactly, I would explain by saying that when I was supposed to write an application regarding some of these incidents, there wasn't sufficient time and therefore the legal representatives were not keen to represent me because they were not sure as to whether they were going to be paid or not. This led to the fact that I could not have enough time to sit down and draft my application, and therefore this has led to a lot of discrepancies in my applications.

MR RAMAWELE: And in fact during consultation, you indicated that one of your legal representatives apologised to some Committee that because of the insufficient time that they had with you in consultation which led to certain discrepancies?

MR NOFOMELA: That is so Chairperson. Mr de Wet or Marais who was representing me in front of the Committee in Johannesburg, I think it was in 1997, he did apologise to the Committee because there wasn't sufficient time for our consultation and therefore there might be errors that might emanate in my application.

MR RAMAWELE: Did you, when you went over to Swaziland to abduct the deceased, were you motivated by any malice on your part to do so?

MR NOFOMELA: Not at all Chairperson.

MR RAMAWELE: I see that in your application, that you are applying for amnesty for offences kidnapping, assault and arson, is that true?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: In your experience as a member of Vlakplaas, if a member is kidnapped for purposes of obtaining information from him, and that person does not provide information, do you foresee the possibility that that person might be killed?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: Was it also the case in this particular instance when Mr Mngomezulu was abducted, do you foresee that if he does not provide information, that he might be killed.

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: So you are also applying that also that in the offences for which you apply for amnesty, that murder also be included there, not so?

MR NOFOMELA: That is correct Chairperson.

MR RAMAWELE: That is the evidence, Chair.

CHAIRPERSON: Thank you Mr Ramawele. Mr Hattingh?

MR DU PLESSIS: Madam Chair, may I just perhaps request, I have no questions for this witness, and I have to make some arrangements, because I see the matter is going to be far longer today than I thought. If I could be excused for a few minutes please.

CHAIRPERSON: We are about to adjourn Mr du Plessis.

MR DU PLESSIS: Oh.

CHAIRPERSON: For lunch. Mr Hattingh, do you mind if we start your cross-examination after lunch, it is almost one o'clock?

MR HATTINGH: Not at all, Madam Chairperson.

CHAIRPERSON: Yes, we will adjourn until ten to two.

COMMITTEE ADJOURNS

ON RESUMPTION:

CHAIRPERSON: Mr Hattingh, do you have any questions to put to Mr Nofomela?

MR HATTINGH: Thank you Chairperson, I have no questions for Mr Nofomela.

CHAIRPERSON: Mr du Plessis?

MR DU PLESSIS: I have no questions, Chairperson.

CHAIRPERSON: Mr Williams?

MR WILLIAMS: I've got no questions, Madam Chair.

CHAIRPERSON: Mr Lamey?

CROSS-EXAMINATION BY MR LAMEY: Thank you Chairperson. Mr Nofomela, are you sure that Mr Mogoai left together with the group from Vlakplaas or is it the case that you just saw him and you recall his presence at some stage?

MR NOFOMELA: As I have already said Chairperson, I cannot recall clearly all the people that went with me to Piet Retief from Vlakplaas, but I did see him at Piet Retief and at that time, after having abducted Mr Mngomezulu.

MR LAMEY: You saw Mr Mogoai at Piet Retief, after he was abducted from Swaziland?

MR NOFOMELA: I cannot say after the abduction, but I remember seeing him at Piet Retief, he was there. As to how he got there, I do not know sir. I cannot confirm that.

MR LAMEY: Mr Mogoai has testified that Mr Mngomezulu was brought to a place near Piet Retief, before he was taken to a place near the Josini dam. It seems to me that you have from the context of your evidence, you say that he was taken from Swaziland to the place near Josini dam. Is it possible that if we assume that the duration was perhaps short, or Mngomezulu's duration at the place near Piet Retief was short and he was thereafter taken to the Josini dam, that that could be a possibility which you have forgotten about?

MR NOFOMELA: I never saw him at Piet Retief sir, I have a problem if you mention Piet Retief. If you say that he was taken to Piet Retief, I have a problem.

MR LAMEY: Well, in your initial statement, you mentioned that he was taken to a farm in Pongola and Piet Retief, on page 170. Can you recall a place by the name of Moolman?

MR NOFOMELA: That is where we were residing sir, whilst we were at Piet Retief, we were based at Moolman.

MR LAMEY: Is it your recollection that he was taken directly from Swaziland to the place near Josini dam and nowhere else prior to that?

MR NOFOMELA: That is, what I am saying that from where Swaziland, we went to this place ... (tape ends) ...

MR LAMEY: What is this place that you are referring to?

MR NOFOMELA: I believe that it was Pongola, but I said that if there is anyone who can come with a counter-evidence, I would not dispute that, but it was definitely not Piet Retief.

MR LAMEY: Okay, let us forget about Piet Retief exactly, could it have been a place some distance of ...

MR MALAN: Mr Lamey, the witness has made it clear that he knows of Moolman, and he is adamant that he wasn't taken to the place where they resided, which was Moolman. Your question should be direct whether it is Moolman or not?

MR LAMEY: Chairperson, my difficulty is also that Mr Mogoai talks about a caravan house, he didn't talk about Moolman, he said he also didn't know the area well. That is why I refrained from talking about Moolman specifically. If - is it possible that he was taken to a place some distance from Piet Retief, before he was taken to another place near the Josini dam?

MR NOFOMELA: It did not happen, because I am the one who abducted him and after having abducted him, he was not taken to Piet Retief, therefore that is not true. It is possible that he might have been taken to that other place that I do not know, thereafter, but myself, after having abducted him, I took him to the place that I have mentioned.

MR LAMEY: But you referred to a place, a farm between Pongola and Piet Retief?

MR NOFOMELA: I amended that part because I thought this place was Pongola, but not between Piet Retief and Pongola.

MR LAMEY: Forget about Piet Retief, the town Piet Retief, is it possible that he was taken to another place before he was taken to the farm at Josini dam? I just want to know whether ...

CHAIRPERSON: His evidence has been so pointed Mr Lamey on this issue, I think he has already said he was taken to this place, he cannot remember, it is between, it is the only place where this person was taken to. Can you take it further than that?

MR LAMEY: As it pleases you Chairperson. Mr Nofomela, I just want to put it to you that you are making a mistake in this regard and the reason for this mistake is as a result of the time period and that you have forgotten about this. I am just putting that to you, I will argue it further. In Swaziland, you said that you put this lamp under the bed, is that correct?

MR NOFOMELA: That is correct sir.

MR LAMEY: Did you decide to do that on your own?

MR NOFOMELA: That is correct sir.

MR LAMEY: There were no instructions in that regard?

MR NOFOMELA: That is correct sir.

MR LAMEY: Did I understand your evidence that this place where Mr Mngomezulu was kept and interrogated, that you were also not the whole time present?

MR NOFOMELA: Please repeat your question.

MR LAMEY: Did I understand your evidence correctly that as this place where Mr Mngomezulu was kept and interrogated, that you were not the whole time present?

MR NOFOMELA: That is correct sir, I was not there all the time.

CHAIRPERSON: You had to do errands for Mr van Dyk?

MR LAMEY: Sorry, I beg your pardon, Chairperson.

CHAIRPERSON: He had to do errands for Mr van Dyk.

MR LAMEY: Thank you Chairperson, I've got no further questions.

CHAIRPERSON: Mr Prinsloo?

CROSS-EXAMINATION BY MR PRINSLOO: Thank you Madam Chair. Mr Nofomela, you have heard the evidence of Mr Pienaar that he had been requested to come to Moolman the following day, after the abduction of the deceased, where he assisted with the interrogation, did you hear that?

MR NOFOMELA: Yes, I heard that.

MR PRINSLOO: Do you dispute that evidence or not?

MR NOFOMELA: I don't have that knowledge.

MR PRINSLOO: Madam Chairperson, I was requested by Mr Nel to put two questions on behalf of Mr Mngadi, Mr Nel approached you in chambers on this basis, I will put two questions with your leave, Madam Chair.

CHAIRPERSON: Yes, though we were told it would be one question.

MR PRINSLOO: I won't change chairs, I will just sit here.

CHAIRPERSON: Yes.

MR PRINSLOO: Thank you Madam Chair. Mr Nofomela, I would just like to put a question to you or I would like to make a statement to you on behalf of Mr Mngadi, his legal representative has already departed, he had other obligations, Mr Mngadi denies that the informer was taken out of the minibus to point out a house or a place, he only pointed out the area where the deceased lived, what do you say about that?

MR NOFOMELA: How would I know if he pointed the house in my absence, he was with me when he pointed out the house.

MR PRINSLOO: He denies that aspect that he went to point out the house, what is your comment to that?

MR NOFOMELA: If he is disputing that, disputing his presence in the operation of the abduction, what was the purpose of him going there if he had to sit in the car? He might have just as well stayed behind.

MR PRINSLOO: Thank you, no further questions, Chairperson.

CHAIRPERSON: Thank you Mr Prinsloo, on your behalf and on behalf of Mr Nel. Ms van der Walt?

CROSS-EXAMINATION BY MS VAN DER WALT: Mr Nofomela, you worked for a long time in the Police Service, is that correct?

MR NOFOMELA: That is correct sir.

MS VAN DER WALT: And you know the Police Service made use of informers?

MR NOFOMELA: That is correct Chairperson.

MS VAN DER WALT: And you know that informers had to be protected at all costs?

MR NOFOMELA: That is correct Chairperson.

MS VAN DER WALT: I put it to you that it is for that reason that a policeman would never disclose his informer to common people.

MR NOFOMELA: Please explain when you say ordinary people, what are you referring to?

MR NOFOMELA: The public.

MR RAMAWELE: Madam Chair, can my colleague just indicate whether this was the position on this particular day, that police officers on this particular day wouldn't have disclosed the identity of that informer or is she just talking in the general?

CHAIRPERSON: Are you referring to a general situation Ms van der Walt, that an informer would not ordinarily be disclosed to members of the public?

MS VAN DER WALT: My cross-examination gets to a point about which I am making the statement, but I just wanted to know whether he knows how an informer is dealt with or managed. May I continue?

CHAIRPERSON: Yes, I think it is because Mr Nofomela does not understand the ambit of the question.

MS VAN DER WALT: I will repeat the question. What I have put to you is that a police officer would never disclose his informant to a normal person in the public, do you know about this?

MR NOFOMELA: That is correct Chairperson.

MS VAN DER WALT: I put it to you that Mr van Dyk testified that the informer did not point out Mr Mngomezulu, he remained in the vehicle when the abduction had taken place?

MR NOFOMELA: I disagree with that, because I was there, I am the one who went with the informer, along with the other people I have mentioned, to do the abduction.

MS VAN DER WALT: Mr Nofomela, if the informant had gone along, you testified that the dogs were barking and there were other people outside, then this informer's identity would have been disclosed and then his life would have been worthless?

MR NOFOMELA: Who would he be revealed to, because he just pointed out the person that we were looking for? There were no other people, I did not mention that there were other people we met from the house, it was only the person that we were looking for.

MS VAN DER WALT: No further questions, thank you Chairperson.

CHAIRPERSON: Mr Kgasi?

CROSS-EXAMINATION BY MR KGASI: Thank you Madam Chairperson. Mr Nofomela, if I heard you correctly you said as the dogs barked, Mr Mngomezulu came out and stood at the doorstep, is that so?

MR NOFOMELA: That is correct sir.

MR KGASI: And that you pointed him out with a gun and that is when the assault ensued?

MR NOFOMELA: That is correct sir.

MR KGASI: Now let me - tell me then, you made reference of one Chris Mogobo whom you were sent to go and pick up, what happened to him?

CHAIRPERSON: Is it relevant to our proceedings, Mr Kgasi?

MR KGASI: Your Honour, I will retract that question if it is not relevant.

CHAIRPERSON: I am asking you whether it is relevant. It is for you to tell me whether that information would be relevant for us to decide whether amnesty should be granted or not.

MR KGASI: Your Honour, I must have pointed out that it is for my curiosity.

CHAIRPERSON: Yes.

MR KGASI: Thank you Your Honour, I have no further questions for the witness.

CHAIRPERSON: Thank you. Mr Malan?

MR MALAN: I just want to make sure Mr Nofomela, did you pass the border in any of the vehicles when you went to abduct Mr Mngomezulu?

MR NOFOMELA: I am not certain as to how did we enter that country, but what I am certain about is when we came back, we went via the fence, not through the border post.

MR MALAN: Let me then ask this question, did you travel in any vehicle within the area of Swaziland on the way to the abduction?

MR NOFOMELA: That is so sir.

MR MALAN: And after you had abducted him, you brought him back over Swaziland territory, back to the border?

MR NOFOMELA: That is correct sir.

MR MALAN: Thank you. Thank you Chairperson.

CHAIRPERSON: Mr Motata?

ADV MOTATA: Just a follow up on that. Mr Nofomela, from the house, did you walk back with the victim, back to the border or fence or you rode in a vehicle where you got up and jumped the fence?

MR NOFOMELA: What I can recall Chairperson, is that after having abducted him and we were carrying him, we walked up until where we got to the border fence, and we jumped the fence or we crawled it, and then we found Mr Mngadi in a car and Mr van Dyk, the other side of the border.

ADV MOTATA: I know this is a long time ago. Is this house or kraal of Mr Mngomezulu, far from the South African border?

MR NOFOMELA: I cannot explain, it was my first time going there, but we did not walk for a long time before we reached the border fence.

ADV MOTATA: Thank you Mr Nofomela, thank you Madam Chair, I've got no further questions.

CHAIRPERSON: Thank you Mr Motata. Mr Nofomela, did you cross the border with the informer?

MR NOFOMELA: That is correct Chairperson.

CHAIRPERSON: Was the informer with you when you went to the house that you cannot remember where it was between Pongola and Piet Retief?

MR NOFOMELA: The time we were coming back with Mr Mngomezulu, we were with the informer, and after having crossed the border, the informer went into Mr van Dyk's car, and we and Mr Mngomezulu, we drove with Mr Mngadi's car and we followed each other.

CHAIRPERSON: Were the interrogation of Mr Mngomezulu took place, was the informer in that house?

MR NOFOMELA: I would not say that Chairperson, because I do not know what happened thereafter because all I had to play a part with was to make sure that this person enters the house and the moment I left the house, I do not know what happened thereafter.

CHAIRPERSON: If there was evidence that the informer was in that house, you wouldn't dispute that, would you?

MR NOFOMELA: I would not dispute that because I did not see the informer, its whereabouts.

CHAIRPERSON: Thank you. Mr Ramawele, do you wish to make any re-examination?

MR RAMAWELE: None, thank you.

CHAIRPERSON: Thank you. Mr Nofomela, you are excused as a witness.

MR NOFOMELA: Thank you Chairperson.

CHAIRPERSON: Are we in a position to proceed with legal argument without taking a break, Mr Hattingh, will you commence?

MR HATTINGH IN ARGUMENT: Thank you Chairperson. Once again I am going to be very brief. Mr de Kock testified that he was requested to assist with the abduction of Mr Mngomezulu, he received the request from Mr Schoon. Mr Schoon confirmed that. This evidence in dispute here was whether the request was made telephonically or from ...

MR PRINSLOO: Madam Chair, may I be rude, I have forgotten to hand in Heads of argument on behalf of Mr Nel. I don't want to interrupt Mr Hattingh, but I think it may be fair. He may want to refer to it if necessary, he left them with me and requested me to hand them to you. Maybe with your leave, I will hand them up to the Committee, if you don't mind Madam Chair.

CHAIRPERSON: Yes.

MR HATTINGH : May I proceed in the meantime Chairperson.

CHAIRPERSON: You may Mr Hattingh.

MR HATTINGH : Thank you. It matters very little in my respectful submission as to whether the request was made telephonically or otherwise, the fact of the matter is that Mr de Kock received a request for assistance from Mr Schoon, he discussed the matter with his Commanding Officer, Brig Schoon, who authorised him to render the assistance as requested by Mr Schoon. Therefore he clearly acted within the course and scope of his employment as a policeman and of the former government and his actions fell squarely within the ambit of Section 20(2)(b).

CHAIRPERSON: (b) and (f)?

MR HATTINGH : And (f) for that matter, yes Chairperson. It is clear in my submission that when he received the request from Mr Schoon, he was told why it was necessary for Mr Mngomezulu to be interrogated, he was informed that they had information that he was involved as a political activist. He also said that he came across his name in Security reports as a matter of course, and therefore I submit that he has clearly established his political motive. Chairperson, the only possible issue, I submit that he has made a full disclosure, and the only possible question on which you could possibly find that he did not make a full disclosure, is on the evidence of Mr Koole and Mr Mogoai, where they said that he was personally present. I submit with the greatest respect that these two gentlemen are mistaken. I don't have to put it any higher than that, I don't have to ask you to disbelieve them, it is sufficient for me to say that they are mistaken and that you should accept Mr de Kock's version. All I have to do Chairperson, briefly is to refer you to page 24 of the Bundle and that is in respect of Mr Koole's evidence at page 24, paragraph 8, he says -

That clearly means Mr de Kock as well, he arrives and we all stayed there. If you look at the affidavit of Mr Mogoai, page 41 ...

CHAIRPERSON: During his viva voce evidence he then stated that Mr de Kock did not spent the night there?

MR HATTINGH : He contradicted, yes, and he also contradicted his evidence by saying that Mr de Kock did not assault Mr Mngomezulu at Moolman, whereas in that same paragraph, it is stated -

CHAIRPERSON: And assault?

MR HATTINGH : Yes, and he contradicted this in his viva voce evidence. I can briefly come to Mr Mogoai at page 41, once again paragraph 8 he says -

There he clearly creates the impression that de Kock arrived, that he participated in the interrogation as well as the assault, whereas in his viva voce evidence, he says de Kock arrived and merely asked whether they were able to obtain any information from him and upon being told that they had been unsuccessful so far, he walked up to Mr Mngomezulu, hit him in the testicles and then departed. If we look at the objective probabilities Chairperson, I think you have all learnt to know Mr de Kock as a person through various applications for amnesty that he has brought before you. The expression contra naturam suam springs to mind here, it is totally contrary to Mr de Kock's nature, to arrive there and not to take over the command, if they had been unsuccessful at that stage, not to take over the interrogation, and to participate in the assault. You didn't sit in the Maponya matter, but in the Maponya matter, Mr de Kock testified that Mr Maponya was abducted and he was assaulted, and he Mr de Kock, participated in the assault. Mr Malan sat in that matter, and he will recall that he made a clean breast of his participation in the assault, he even admitted that he used teargas in the process of assaulting Mr Maponya. In another matter, where a person had also been interrogated, I am just trying to remember his name, it was at Marble Hall, Mr de Kock also arrived and participated in the assault and the interrogation of the witness. Why would Mr de Kock deny it if he had done so, here. He made application for many incidents in which he was involved, many incidents as terrible as this one, if not worse, and he made a clean breast of his involvement in those incidents, and there is no reason why he would not have said so in this particular incident, and why he would not ask for amnesty for his conduct, if indeed, he was there. What is certain Chairperson, is that Mr de Kock, being Mr de Kock and being the sort of person that he was, would not simply drive from wherever he was, we don't know, at some stage he was at Moolman and then suddenly in the night, at night time, he arrives at this place, at Josini, walks in, asks a simple question "have you been able to elicit any information from him", hits him in the private parts and then walks out again and gets into his car and drives off. It is so improbable that it simply cannot be accepted, Chairperson. I ask you therefore to find that Mr de Kock was not at either Moolman or Josini and that he never participated in the assault or the interrogation of Mr Mngomezulu and that you should therefore not find that he did not make a full disclosure in as much as he hasn't disclosed his involvement at Moolman and Josini as testified to by Messrs Koole and Mogoai.

CHAIRPERSON: Yes. What do you make of paragraph 8?

MR HATTINGH : Paragraph 8 of ...

CHAIRPERSON: Of Mr Mogoai's affidavit?

MR HATTINGH : Is that at page 41 Chairperson?

CHAIRPERSON: That is at page 41 as well, where it would appear that Mr de Kock gave them instructions to remove Mr Mngomezulu to Josini, and this is subsequently done by Mr Mogoai and Mr Mbelo and Mr Mbelo gave evidence and he did not put Mr de Kock either at Moolman or at Josini?

MR HATTINGH : Yes, or at Josini? In fact these two gentlemen are the only ones now who puts him there. Even Mr Nofomela no longer says so, he says he made a mistake. I submit Chairperson, that there are so many witnesses, it is Mr de Kock, it is Mr van Dyk, it is Mr Pienaar, it is Mr Schoon, it is Mr Beeslaar, it is Mr Mbelo, Mr Mngadi and Mr Nofomela, eight people who didn't see Mr de Kock there, they are the only two people who saw him there. I submit that you simply cannot accept that evidence and I accept you therefore to accept Mr de Kock's version and to find that he merely agreed to render assistance and that he was subsequently informed that the person died under interrogation and that his body was destroyed.

CHAIRPERSON: For which acts would you say he should be considered for amnesty?

MR HATTINGH : I submit therefore that he should be granted indemnity Chairperson, for - well, broadly speaking, any crime or delict flowing from the abduction, interrogation and killing of Mr Mngomezulu, more specifically the crime of being an accessory to murder and defeating the ends of justice, and possibly being an accessory to the crime of destroying the body of the late Mr Mngomezulu. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Hattingh. May I start with either you Mr Prinsloo or Ms van der Walt?

MS VAN DER WALT: I will start.

MR WILLIAMS: Sorry Madam Chair, may I request that I be given an opportunity to submit my Heads or to argue now and be excused from this meeting now?

CHAIRPERSON: Yes. Will you mind Ms van der Walt, if we gave him an opportunity to start first, because he has to leave before half past two?

MR WILLIAMS: That is correct Madam Chair.

CHAIRPERSON: That is if your submission would not be longer than 30 minutes.

MR WILLIAMS IN ARGUMENT: I promise it won't be, it would be two minutes. Thank you Madam Chair. Madam Chair, briefly, pertaining to my client, the following are common cause, firstly Mr Mngomezulu was actively involved in either the PAC or the ANC, and he actively assisted with the infiltration of members of the liberation movements. No evidence was adduced to gainsay or controvert the evidence of the applicants in this regard. Neither was that evidence attacked by the Attorney acting on behalf of the family. Number two, Mr Schoon requested Mr de

Kock to apprehend the victim in order to establish how many people had infiltrated the Republic through his link, where the location was, and where arms caches were located and possibly also to try and turn Mr Mngomezulu into an agent of the State. The third common cause, at the time of the incident, Mr de Kock was the Overall Commander of applicant Mbelo and he directly or indirectly gave the command which led to the direct, or which gave rise to the applicant's participation in this event. It is also noteworthy that the applicant's erstwhile Commander, namely Mr de Kock, accepts responsibility for the conduct of Mr Mbelo.

CHAIRPERSON: In particular Mr van Dyk who says that he was in command of the operation?

MR WILLIAMS: I don't catch what you are saying Madam Chair.

CHAIRPERSON: I am saying the person who is really accepting responsibility for Mr Mbelo is Mr van Dyk, who was the Ground Commander of Mr Mbelo for this operation?

MR WILLIAMS: That is correct Madam Chair. And then acting on the direct order of his Commander, Mr Mbelo participated in the abduction and torture of Mr Mngomezulu. I want to submit that the applicant had explicit, alternatively implied authority, to commit the acts as aforesaid and it is also submitted that he acted within the course and scope of his duties as a Vlakplaas policeman. Then the applicant also stated that he did not know what happened to Mr Mngomezulu afterwards. The applicant testified that his memory regarding the incident, is weak, and that he did not have the benefit of refreshing his memory either through documentation or through discussions with other applicants before he filled in his amnesty application. He accordingly conceded that he could have been mistaken with regard to various facts or statements which he made in his application. Madam Chair, he also stated that certain incidents simply escape his memory. It is my respectful submission that this does not retract from the requirement of full disclosure and that the applicant's version is in fact a bona fide version. It has in fact never been suggested by any of the parties that his version is not a bona fide one and I therefore then request that the Committee finds that he had made a full disclosure. In conclusion I want to submit that the applicant's conduct in abducting and torturing Mr Mngomezulu for the purposes for which they did it, is a political act, or are political acts, associated with political objectives, which were committed during the course of the conflicts of the past. I also want to submit with respect that the applicant had made a full disclosure as required by the Act. The incident occurred either 13 or 14 years ago, and it would not be reasonable to expect of an applicant to remember every minute detail of the incident. In this respect, it would be reasonable to expect participants or applicants, to differ in their recollection of events. However, the material facts pertaining to the applicant's application, are borne out by all of the applicants, namely that Mr Mngomezulu was abducted, he was tortured for a particular motive, which relates to a political objective. It is further submitted that the applicant does not attempt to hide his participation in this incident to the Amnesty Committee and that he was completely honest and open about his role and the role that other played. In fact it had never been suggested by any of the parties present, that he had not been truthful about his role in this incident. Lastly, it is clear from the record that the applicant did not act for personal gain, he did not act out of malice, ill-will or spite and in fact, he did not receive a monetary or other reward for his participation in this incident. I will therefore respectfully request Madam Chair, that the applicant be granted amnesty.

CHAIRPERSON: For what Mr Williams?

MR WILLIAMS: In respect of any offence or delict which can be inferred from the facts which was adduced, in support of his application, including murder, Madam Chair.

CHAIRPERSON: You may be excused.

MR WILLIAMS: Thank you Madam Chair.

CHAIRPERSON: Ms van der Walt?

MS VAN DER WALT IN ARGUMENT: Thank you honourable Chairperson. I would just like to present the crucial points in Mr van Dyk's evidence to you initially, because I want to argue that the course of the events from the time when Mr de Kock gave Mr van Dyk the instruction to execute the operation, are not in dispute. Mr van Dyk has also testified that he received the instruction and that those persons who executed the operation with him, fell under his command and that he then also accepts the responsibility for the conduct of those persons. What is in dispute and the criticism which has been lodged against Mr van Dyk, Mr Pienaar and Mr Schoon, is the fact that their affidavits are basically the same and that they are represented by the same legal team. Then more specifically it pertains also to the aspect where Mr van Dyk in his application on page 87, the third paragraph states that a decision was taken by him, Pienaar and Gert Schoon to not interrogate the person any further and take this person back to the Swaziland border. I wish to submit to you that with regard to this aspect, Mr van Dyk in his verbal evidence has elaborated and then I also wish that the evidence of Mr Schoon, with regard to this aspect, be considered. I would like to submit to you that Mr Schoon was vehement in his evidence with regard to this point as to why he decided to take the person across the border. It is so that Mr van Dyk did not state in his application the dispute which existed among the three persons with regard to what had to be done with Mr Mngomezulu. My argument is that his version with regard to this point, ought to be accepted. That there was a dispute is confirmed by all three, but they are not attempting to disguise anything. If at an earlier or a later stage, they had killed Mr Mngomezulu, why would they not have told the Committee this in their applications, because they are applying for the murder of Mr Mngomezulu and to attempt to disguise something like this in such a manner, does not make any sense whatsoever. Whether they had shot him or strangled him or whether he had still been alive, which I will argue with you at a later point, they would have stated this before you. I am only speaking on behalf of Mr van Dyk. They were mistaken in not telling you that there was a dispute with regard to what was going to happen to Mr Mngomezulu, but ultimately they decided to take him over the border as per Mr Schoon's evidence. The question arose with regard to what would happen if he was taken across the border, what would the effects have been if he had been taken across the border alive, and I do not wish to argue on behalf of Mr Schoon, but I would like to point out to you that his explanation regarding this, ought to be accepted, with regard to what he thought would happen, if the man was taken across the border. Then Mr van Dyk continues and Mr van Dyk did not attempt to disguise his share in the assault of Mr Mngomezulu, he told you that he gravely and brutally assaulted Mr Mngomezulu with a baton. He also stated where on his body, on his back and on his head. If he had wanted to disguise his share in this at all, he would have remained silent, but he testified in front of you that he did indeed assault the person, and he made appropriate reference to this. Mr Beeslaar confirms in his verbal evidence that these persons did indeed turn off to Mr Schoon's home. He was not present and he does not know what took place there, therefore it is impossible for him to assist the honourable Committee with regard to that point. Mr van Dyk told you that once they arrived there, they lifted the canvass and saw that Mr Mngomezulu was dead. With regard to this point, Mr Beeslaar told you that Mr Mngomezulu was placed in a drum there on the farm, at the old farmhouse, and this was never put to anyone of the applicants. It cannot be argued that it was not necessary, it was absolutely vital to put this to the applicants so that the applicants could respond to this, and they did not have that opportunity. The first word which the applicants heard about this, was when Mr Beeslaar gave evidence about this, and by that stage the applicants had already testified before you. Mr Beeslaar was represented by an Advocate and an Attorney and it was not put to the applicants. It was completely fatal for Mr Beeslaar's case, but to continue, Mr van Dyk told you that they went to a point on the beach. With regard to this aspect, Mr Beeslaar also in his evidence before you stated that before the incident, a reconnaissance was undertaken in the no-go area where missiles were tested and fired. There is evidence before you that this aspect with regard to the beach, right next to the missile testing area, it was a forbidden area, regular persons were not permitted access to that area. There can be no reason why initial reconnaissance would have to be undertaken, because Mr Schoon testified that he knew the area very well and that there were explosions taking place there, because it was a missile testing area. It wouldn't have created any suspicion if there was an explosion on the beach, but the evidence before you indicates that it was a no-go area, that no one else had access to the area. What is important is the fact that if one studies Mr Beeslaar's application, his written application, no mention whatsoever is made of any such reconnaissance. He states that they were patrolling and with the greatest of respect, I wish to argue before you that there is a vast difference between stating regularly that there was patrolling taking place or if it is put to you that a reconnaissance was undertaken in order to determine whether or not there were persons present so that it would be secure to launch an explosion on the beach. Once again, this aspect was not put to the applicants. With respect, it can never be argued that it was not of significance. It was of the utmost significance to put this to the applicants and to Mr van Dyk especially the one whom I represent, so that they could respond to this. Surely at the end of a case with verbal evidence, such drastic allegations and such drastic discrepancies with Mr Beeslaar's evidence cannot be marginalised. I wish to argue before you with respect, that that aspect of the evidence is a story which Mr Beeslaar has fabricated during this hearing, because otherwise his legal representative would have put this to the applicants. I wish to point out to you that even when he was under cross-examination, he added a further aspect, that he thought that they were there where the entrance was to this Sodwana area, something which was completely out of the blue, there was never any mention of such a visit to the entrance of Sodwana. Mr van Dyk told you that once they had realised that Mr Mngomezulu had passed away, they took another decision to destroy the body. Mr Schoon as well as Mr van Dyk told you that at that stage they felt that this would be the best decision, as opposed to their initial decision when he was still alive, the decision to take him over the border. Now they had decided to blow up the body.

MR MALAN: I beg your pardon, wasn't the decision not to do that? Didn't Schoon decide that?

MS VAN DER WALT: At the end of the day they would have gone along with it, even though they differed. But then the decision was made to blow up the body, and they went to the beach with the quantity of things as to which Mr Schoon testified about.

Once again they arrived at the no-access area, they drove in two vehicles and I wish to argue that no person would drive up to a certain point with that mass, the 25 kilograms together with all the other pieces of equipment which were required, park the vehicle and then walk a distance of one and a half kilometres with all those items in hand, along with a person who they were going to kill according to Mr Beeslaar. With respect, it simply doesn't make any sense. Why didn't they simply take their vehicles, drive to a point, unload the items at that point along with Mr Mngomezulu, prepare everything, return the vehicle way from the point where the explosion was to take place and then detonate the explosives? That would make much better sense?

What really does not make sense with regard to Mr Beeslaar is that according to his own evidence, these persons parked the two vehicles. He himself told you that when they parked there, the moon rose. With respect, this is on the east coast, there are no buildings which could create any shadow, the moon rises, it is on a beach, with respect if he tells this honourable Committee that he could not see that these persons were carrying that quantity of things.

I would like to argue that what he states there cannot be true and that is is as Mr van Dyk testified that they left Mr Beeslaar and Mr Willemse at that specific point and that Mr van Dyk told them to ensure that no vehicle ... (tape ends) ... further with Mr Mngomezulu.

The next aspect has to do with what Mr van Dyk told you with regard to whether Mr Mngomezulu was already dead or whether he was not dead. With respect, I wish to argue that the only evidence before you and with respect, the only evidence which cannot be contradicted, is the fact that Mr Mngomezulu at that point, was already dead, and Mr Beeslaar's evidence with regard to this, cannot be accepted. It is inconceivable to think that someone would quite peacefully walk along with people whom he knew would kill him and he had been assaulted to such an extent.

If the honourable Committee would just look at Mr Mogoai's evidence, with regards to the assault on Mr Mngomezulu, it must have been a very grave assault. According to Mr Mogoai, when he saw him for the last time, he was unconscious.

Mr Schoon testified that he saw that this man had suffered tremendously and various applicants have testified that he was seriously assaulted. Why then would this man be walking along with the persons who had assaulted him to such an extent, he would see that they were carrying all these items, it is impossible that something like that could have happened. Mr Beeslaar is the only person who has testified to that effect and his evidence is utterly weak with regard to this point.

With regard to Mr van Dyk, he states that they went up to a point and there Mr Schoon, who was the demolitions expert, set the explosives on the body and the explosives were detonated. Upon the following day, they returned to examine the area for any remains and they found nothing.

With regard to Mr Beeslaar's evidence in contradiction to his written affidavit, he wanted to tell the Committee that before the reconnaissance, the decision was already made that Mr Mngomezulu would be blown up, as he put it. That can never be correct and this also was never put to any of the applicants naturally. Mr Beeslaar contradicted himself with regard to this point, but I made notes and upon re-examination Mr du Plessis said to him "you didn't know how he would be killed or at least how he would be eliminated", and then he answered "no", but in his cross-examination and during his evidence-in-chief, he stated that it had been discussed that he would be blown up. Just with regard to that aspect, his evidence can certainly not be accepted. And furthermore, it is significant that this decision to blow him up, according to Mr Beeslaar, must have been made before Mr Schoon arrived at the scene where he interrogated him, and that would mean that Mr Schoon would direct a request at Mr de Kock that he wanted to interrogate the man, even before he had the opportunity to interrogate Mr Mngomezulu, they had already decided that they were going to blow him up. With respect, that does not make any sense.

There may be criticism and I concede that, with regard to Mr van Dyk's evidence, when it comes to the fact that they wanted to take the man over the border and that this was not thoroughly presented to you in his written affidavit, but I wish to submit to you that if you find any criticism with regard to this, you ought not to find that he did not make a full disclosure of relevant facts. If he had killed the person in any other manner or if the person was still alive.

I will argue that he would have stated so but with other applications, you have heard the evidence that it is very difficult to blow up a living person. There has been evidence before you that these persons were shot or killed in some or other manner and I want to argue that I think that it would be impossible to blow up the body of a person or kill a person with explosives if he was still alive, because this person would never remain still if 25 kilograms of explosives were draped all over him.

I wish to submit to you that if Mr van Dyk or any of the other applicants had killed him in any other manner, they would have told you so. If I recall correctly Mr Schoon's evidence was that it was gruesome for him to blow up the body and if he had killed him, he would have known this. The same goes for Mr van Dyk, who had absolutely no reason to conceal anything from you. I wish to submit to you that he had indeed made a full disclosure of all the relevant facts and I wish to submit to you that he has indeed convinced you that he fulfils to the requirements of the Act and that you consider his application and grant him full Section 20(2)(b) or (f) amnesty with regard to any offence which may emanate from the abduction of Mr Mngomezulu, the death of Mr Mngomezulu because Mr van Dyk stated unequivocally in his evidence that he foresaw that with such an assault on a person, because he himself testified that he hit the person over the head with a baton, various times, he then foresaw that this person due to the assault may have died. Furthermore that he requests amnesty for the desecration of the body, defeating the ends of justice or any other offence which may emanate from his actions, as well as any delictual accountability which may emanate from this matter. If there is anything that you would wish to question me about, I will attempt to answer your questions.

CHAIRPERSON: Thank you Ms van der Walt. I am tempted to give Mr du Plessis an opportunity to reply. It is a little complexed situation in that we still have Mr Pienaar and Mr Schoon to whose submissions Mr du Plessis may also wish to reply to. Mr du Plessis, how would you prefer to do it, do we give Mr Prinsloo an opportunity to make his submissions in respect of his applicant before you can reply to Ms van der Walt’s submissions?

MR DU PLESSIS: Madam Chair, I believe that the gist of the argument cannot differ very much from Ms van der Walt's argument, I have the argument which I want to place before you and I do not think that it would, that I would be able to take the argument further if I hear argument from Mr Prinsloo, so I would really appreciate it if you would give me the opportunity to argue now.

CHAIRPERSON: Yes.

MR DU PLESSIS: If it does not inconvenience anybody else.

MR PRINSLOO: No objection, Madam Chair.

CHAIRPERSON: Thank you, yes.

MR DU PLESSIS IN ARGUMENT: I am indebted to Mr Prinsloo and yourselves, Madam Chair. I have prepared Heads of argument, may I beg leave to hand it up to you. I had given copies to some of my colleagues, Madam Chair, some of my colleagues have not received copies yet, and I am sorry for that. I have one copy short, I am sorry. Madam Chair, I am not going to deal with the Heads of argument in detail, may I just address you on the issues quickly. The way I see the dispute we have here is we have one version on the one hand, of the three witnesses, van Zyl, Pienaar and Schoon.

CHAIRPERSON: Van Dyk?

MR DU PLESSIS: Van Dyk, I beg your pardon, and Mr Beeslaar. Now to a certain extent, those versions overlap, those versions overlap really until the time when they testify Mr Mngomezulu died, except for one instance, and that is the question could he walk to the bakkie when he was loaded onto the bakkie or not.

In respect of the differences between their versions, the differences really arise from the period after the death to what happened on the beach. How do you deal with this, that is the question, that has been the question in a few amnesty applications? How does one deal with this? Do you decide the one version is correct, the other version is wrong which means that either the three of them should receive amnesty and then Mr Beeslaar shouldn't, or the other way around.

Now, Madam Chair, that is why I am making the point I am making, if you decide that there is on a balance of probabilities, some truth in what Mr Beeslaar testified about what happened from Schoon's house in Josini, onwards to the beach, then you have a situation that you have to come to the conclusion that the other three did not make a full disclosure.

If you decide that the evidence of Mr Beeslaar during that period is in all probability not correct, because he has a faulty memory and you will see in his application that it is clear that his memory has a problem and if you read the psychological report, you will see that he has a memory problem. If that is the case, you don't necessarily have to reject Mr Beeslaar's application, if you accept the application of the other three because if you accept their version to be correct, then everything Mr Beeslaar testified, which corresponds to their versions, responds to their version, and there wouldn't be one fact that he did not disclose to you. The only difference is Mr Beeslaar says a lot of other things extra and the question is what do you do with those things?

As I say if you decide that that is true or there is a probability of truth in that, then the others did not make a full disclosure. If you decide there is no probability of truth in that, then those three must have made a full disclosure, and Mr Beeslaar have made a full disclosure of the facts you find, did happen.

What I have done in the Heads of argument is, and I am not going to take you through each and every paragraph Madam Chair, I have elicited in cross-examination each of these points, dealt with them on the probabilities, because I knew that was going to be the essence of this matter.

What are the improbabilities of the version of Pienaar, Schoon and van Dyk and I have highlighted all the points which I concentrated on during cross-examination, to give you an indication what in my submission, are the improbabilities of their version.

In my submission, at the end of the day, if you look at all the improbabilities, in respect of their version, you have to come to the conclusion that on the balance of improbabilities, what Mr Beeslaar testifies, are correct, especially in respect of how this person died.

Madam Chair, the one question which is unanswered here is, why is there this big difference, why is there this big difference, and if you look at the two sets of applicants, you have to ask yourself the question why? And you also have to ask what is the difference between the two applications.

CHAIRPERSON: I no longer want to ask, Mr du Plessis, I have been asking that question ever since the hearing started. Now you have to provide an answer.

MR DU PLESSIS: Yes, that is what I am going to address to you now, Madam Chair, and there is an obvious answer to this.

If you read Schoon, van Dyk and Pienaar's applications, you will see that nothing is said in the written applications about having acted intentionally, nothing. Those applications in my submission, Madam Chair, have been drawn to such an extent that one can always turn around on those facts and say that he died negligently. We never had the intention, we never had dolus eventualis, we never accepted the fact that he may die, we never thought he would die. One can easily on those versions when you have to testify and elaborate on it, testify to that direction. What is this Madam Chair, this is an attempt to try to get amnesty, but if we don't, we don't really make an admission in the written papers. This was drawn at a stage when there were no amnesty application judgements and nothing else, nobody knew what was going to happen with the amnesty process.

Now these applicants found themselves here, at this hearing, in the position that they have to adhere to that version, and that is why you have all these improbabilities in the version, and that is the reason why you have this strange happenings that Mr Beeslaar testified about, which these people say they just deny because they have to deny it now. That is the one point, Madam Chair.

The other reason, the other reason may be and I am speculating, may be the way this person died. If he died on the beach and not in the bakkie, nobody knows how he died, and it may be that he died in a way that would be out of proportion totally to the political motive sought. It may be that he may have been blown up in the sea, because explosives like that can blow up in water. It may be that he was treated in the most cruel fashion possible, and in stead of coming clean on that, we rather just keep quiet about that and tell half of the truth and don't talk about the rest, and the only hitch in this whole plan with respect Madam Chair, was Mr Beeslaar because they never contacted him. Their evidence was clear that they applied for amnesty before he applied for amnesty. He contacted them, they said to him "well, they don't know anything about that", they didn't even say they had already applied for amnesty, they said, van Dyk said he was not going to apply for amnesty, that is what Beeslaar heard. Pienaar said he did not remember this, but in the meantime they have already applied for amnesty as my learned friend, Ms van der Walt pointed out in the cross-examination of Beeslaar. Their applications were before Beeslaar's application. That is very strange, why wouldn't they say to him, why wouldn't they contact him? Because he didn't know how the person died on the beach. They knew they had to concoct the story and then at the end of the day, they had to take a gamble on Beeslaar and hopefully he wouldn't apply for amnesty. They said we won't apply for amnesty and the other one says "I don't remember", maybe Beeslaar won't apply for amnesty.

CHAIRPERSON: May I interpose?

MR DU PLESSIS: Yes, Madam Chair.

CHAIRPERSON: They before they applied for amnesty, decided that they were now going to concoct some version about the abduction and the killing of Mr Mngomezulu, wouldn't that be a compelling reason to get in touch with Mr Beeslaar?

MR DU PLESSIS: Well, it may be, except if they didn't trust him, except if they didn't trust him. Except if they didn't know, they didn't know if he would agree and we are just speculating now, but they didn't know if he would agree to this? They didn't know, and may I just point out one fact and I don't know if that is important Madam Chair, Mr Beeslaar was represented by myself and Mr Brits at that time, and we were really standing alone in this whole process at that time. We were standing alone, we didn't have the support at that time of Mr Wagener and any of the other groups of applicants that you have heard amnesty applications from. There is a very real possibility if you look at the probabilities, that they may have felt Mr Beeslaar could not be trusted because Cronje and everybody else had participated totally in the process at that stage, and had already given testimony in respect of the first hearings. That is a real possibility Madam Chair, and that is why I submit to you that on behalf of Mr Beeslaar, one cannot even determine a motive to lie, why would he lie about these happenings afterwards on the beach and he saw the man walking, why would he lie? The only possible reason could be his memory, and that I concede, but then you have to find that he either lied or his memory was faulty on, did the man walk to the bakkie, did the man walk on the beach, did they do reconnaissance in the missile area, did he hear afterwards that he was eliminated on the beach?

On all those issues, you have to find that he is either lying or his memory is not serving. In my respectful submission Madam Chair, to decide between those two versions, you have to look at the probabilities, and then you have to ask motives. Why would the one version differ so much from the others? You would have to determine who had what motives? That in my submission, would be the determining factor in this application. If you at the end of the day decide on the probabilities, for those three applicants, then as I have stated, Mr Beeslaar should then receive amnesty together with them. The only question is why does Mr Beeslaar raise these things and in my submission, if you look at the improbabilities of this other version, you have to come to the conclusion that there is some truth in what Mr Beeslaar says about what happened after the Manzini.

ADV MOTATA: May I just ask this, Mr du Plessis, before we come to the enquiry you are suggesting we should, shouldn't we first start from do we know how he died, because that is the question which is worrying me. Then I've got to analyse the evidence of the five, forget Mbelo and the rest, van Dyk, Pienaar, Schoon and Beeslaar and say "hi, had they told me how this man died", because wouldn't that be part of full disclosure irrespective whether he died a grizzly death or what, do we know how he died before we can go into the nitty-gritty of now analysing the probabilities and improbabilities.

MR DU PLESSIS: May I answer you on the point of view of Mr Beeslaar? Mr Beeslaar wasn't present when the tarpaulin was lifted at the house of Mr Schoon, when it was detected that the man was dead, neither was Mr Beeslaar present on his evidence, at the beach, when the man died. There can be no criticism levelled against Mr Beeslaar for not having told you how this man died.

If one looks at that, however, if you decide, if you come to the conclusion that you don't know how the man died on the evidence of all the parties, if you look at everybody's evidence, that would obviously affect the other three applicants, but in respect of Mr Beeslaar, it will still not affect his evidence, because on both versions, he would not be in a position to tell you how the man died. He would be in a position to tell you what he remembered of everything surrounding the death, and that he did do so, and in my submission, he either did that fully, or if he was mistaken about the second period, from Josini onwards to the beach, then he did it fully in respect of the period beforehand, if you find on the version of the other three applicants.

In my respectful submission, Madam Chair, Mr Beeslaar, on all arguments from whatever direction you want to argue, Mr Beeslaar did make a full disclosure to you. The only question you have to decide is how are you going to deal with the choice between, or how are you going to deal with Mr Beeslaar's evidence about what happened to this man after they stopped at the house at Josini, Mr Schoon's house.

You will have to decide, are we going to accept Mr Beeslaar's evidence or are we going to reject his evidence on that basis? If you cannot accept or reject it, then Mr Motata's argument comes in. If you cannot accept it or reject it, you don't know what the situation is, then the question arises do you know how this man died and if you are at that stage, then you cannot make any finding against Mr Beeslaar, because that is not a fact that he could have placed before you on any version. Madam Chair, in a nutshell that is my argument.

May I just address one point, the probabilities of the walking on the beach. The evidence was that it was "skemer", so it was late afternoon, it was getting dark. In my submission it is probable that they would have tried to find a place which was suitable to blow this person up. If you drive on the beach at that time of night, it may have been, I don't know what the conditions were, but it may have been more difficult to find a suitable place, than to walk in that regard. That is the only submission I want to make in respect of that, and why they walked away.

CHAIRPERSON: Even though Mr Schoon was quite familiar with the place?

MR DU PLESSIS: Yes, but I mean it is a beach, Madam Chair, it is a beach, so the question is where was he blown up? It may be that they wanted to look for rocks to hide behind when the explosion goes off.

CHAIRPERSON: To identify a particular spot?

MR DU PLESSIS: Correct, and it would have been easier to identify a spot by walking along the beach, than by driving along the beach. Madam Chair, but I have no further submissions, you will see in the Heads of argument, I dealt with the probabilities issue and I therefore ask for amnesty for Mr Beeslaar for all the offences listed on page 136 and I think I mentioned it should, assault with intent, should be added to the list. It is being accessory after the fact, murder, assault and all other offences.

CHAIRPERSON: We noted the amendment you made at the commencement of Mr Beeslaar's application.

MR DU PLESSIS: Thank you Madam Chair. I don't know if you want to hear me on anything.

ADV MOTATA: I may just apologise through you Madam Chair, I did not read your Heads and I asked questions which are dealt with in your Heads, thank you.

MR DU PLESSIS: Thank you Mr Motata. Madam Chair, may I be excused at this moment? I am in your hands.

CHAIRPERSON: I think you must listen to Mr Prinsloo's argument.

MR DU PLESSIS: All right, as it pleases you.

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO IN ARGUMENT: Thank you Chairperson. Chairperson, with respect, I wish to argue before the Committee firstly that the deceased with the abduction, had already been assaulted, that he was further assaulted at Moolman and that he was further assaulted at the farmhouse and it is clear according to the evidence, that he was grievously assaulted and there was evidence from Mr Mogoai, from Mr van Dyk, Pienaar and other witnesses, and Mr Schoon, who comes in saying "this man suffered tremendously" according to his observation of the deceased, when he interrogated him. Under the circumstances, if one looks at the affidavit which was made by Mr Beeslaar, it does not seem that there was such a serious assault after all, but what is significant is that Mr Beeslaar had a very minor share in this matter. His reason for his involvement after so many years, must be considered by the Committee. Furthermore the Committee should consider Mr Beeslaar's poor memory. According to his application Mr Beeslaar denies that he used any liquor, but the evidence given by Pienaar as well as Schoon indicates that he was drinking. This aspect cannot be omitted. Why Mr Beeslaar will not admit to it, whether it is the course of time or whether he will not admit that he was drinking while on duty, whatever the reason may be, only he will know. If one considers ...

CHAIRPERSON: It wasn't Mr Pienaar, nor Mr Schoon's version that they saw Mr Beeslaar drinking?

MR PRINSLOO: That is correct Madam Chair, with respect they didn't testify to the effect that they saw him consuming liquor, but that he was under the influence of liquor. That was the evidence of Pienaar and Schoon.

CHAIRPERSON: And Schoon?

MR PRINSLOO: Not that they saw him consuming liquor, that is correct Madam Chair, with respect. It is further significant Madam Chair, that Mr Beeslaar, for his reason or participation in the interrogation of Mr Mngomezulu, he cannot recall, he said he slapped him, he doesn't even know the reason as to why he slapped him and I respectfully submit Madam Chair, that that in itself already indicates the role Mr Beeslaar played in this matter. What Mr Beeslaar recalls is them going on a patrol of some sort, the reason he advanced for that, I respectfully submit is highly improbable. As to whether Mr Beeslaar is confusing a patrol for something else, because the reasons he advance for the so-called patrol, I respectfully submit, Madam Chair, in having regard to the fact that Mr Schoon was completely conversant, he knew the area well, he lived there for a long time, he patrolled that area, and he knew Sodwana, all those places. I respectfully submit why would he go along and patrol that particular area? At the time when Mr Beeslaar alleges that they patrolled, I respectfully submit, it is highly improbable. It appears from Mr Beeslaar's evidence, that he was confused as far as that was concerned, because he said the patrol took place prior to Mr Schoon interrogating Mr Mngomezulu. I respectfully submit Madam Chair, it must be taken into account that Mr Schoon had a direct interest to interrogate Mr Mngomezulu. I respectfully submit that it is highly improbable that Mr Schoon, with his experience in the manner he testified, the knowledge he had with regard to Mr Mngomezulu and what he required from Mr Mngomezulu, that he would at that stage already consider to reconnoitre the area in order to find a place to kill Mr Mngomezulu or to blow him up, whatever. It appears from what Mr Beeslaar wants the Committee to infer, that there was a preconceived idea to blow him up, knowing he was still alive at that particular spot, and why would Mr Schoon, Mr Pienaar and Mr van Dyk in any way tell Mr Beeslaar, they were going to kill him, at that stage, if no decision was taken and he was still being interrogated at that stage.

Having regard to the fact as to the role Mr Beeslaar played according to his evidence at a later stage, there would have been no reason for Mr van Dyk, Pienaar and Schoon to inform Mr Beeslaar as to their plans, if they had such plans at that stage.

MR MALAN: Excuse me Mr Prinsloo, did you say why would they tell him that they had plans to kill him, if there was no decision yet taken - according to the version, there was never an intention to kill him?

MR PRINSLOO: I respectfully submit Madam Chair, as to when they took that decision, with regard to the version of Mr Beeslaar, that is my submission, at that stage, there could not have been such a decision at that stage or any intention by anyone at that stage, otherwise that intention could have been formed by somebody already when they kidnapped him in Swaziland and brought him out. I respectfully submit that would be putting the cart before the horse. There was a process of interrogation, there was a particular motive for interrogating this man, there was a motive for getting information from him. I will respectfully submit nobody can at that stage, unless they would say they visualised this or that, I respectfully submit, they could not have said that, until they have interrogated him and what the response would have been.

I respectfully submit it cannot be said that every person that is kidnapped, would ultimately be killed. There were a number of people kidnapped, there are applications that will be before the Committee, there are other applications where people were kidnapped and they weren't killed.

MR MALAN: Sorry, I beg your pardon, Mr Prinsloo, sorry, I cut you off. I think I got your answer. Just on this point you say there are a number of examples of people having been kidnapped and not killed, but do we have one example of a person abducted, across border, and placed back without any results?

MR PRINSLOO: Madam Chair, I respectfully submit, to my knowledge, there is none before an Amnesty Committee, because I am not involved in all the applications, but if we look at some of the people that were kidnapped, and people that returned to various places outside the border of South Africa, that were subsequently killed by the ANC, because they were suspected of being informers or whatever, and particularly I respectfully submit the explanation which Mr Schoon gave, is an acceptable and a probable one, that being that if a person is re-introduced in the area, and the ANC was aware of the fact that he was in the hands of the police, they would immediately start asking questions.

CHAIRPERSON: But in this case, do we have evidence that the ANC was aware that Mr Mngomezulu had been abducted?

MR PRINSLOO: I respectfully submit Madam Chair, it was on the basis if Mr Mngomezulu was returned to the area where he originated from and if anyone would have asked him "what happened to you" and he would have said "I was in the hands of the police and they assaulted me", would the ANC then have believed outright that he was telling the truth, why was he released by the police if they had him in their possession, knowing that the police was inclined to kill people, there was always speculation about this, there was always accusations levelled, there were people, I respectfully submit Madam Chair, that were in custody and then for some reason or other, disappeared, escaped or managed to escape or an escape which was merely hedged by the police and there were many questions asked by the ANC with regard to such explanations offered by the police. Ultimately the truth came out as to what happened, but I respectfully submit that the explanation which Mr Schoon gave, his evidence rather, is apparent that it was a reasonable explanation, that the ANC may have believed that.

CHAIRPERSON: Yes, I accept that, because it has happened and the police were at times responsible for planting that kind of information to the ANC, to make a person seem to be a double agent. In this case, do we have evidence that the ANC already was aware of Mr Mngomezulu's abduction by the Security Police?

MR PRINSLOO: I respectfully submit Madam Chair, it didn't develop to that stage, so I could only speculate as to what the ANC would have believed, but on the probabilities as to what Mr Schoon believed, what he bona fide believed, he said he also had in mind, if he was returned to Swaziland and if he went and complained about the assault upon him by the South African Police, how would they then be able to investigate this matter? It is an issue between two countries?

Having regard to the fact that it may have been an international incident, and those have happened, there have been explanations by countries at various stages. They would have denied any involvement. How far would this have developed, Mr Mngomezulu could never have come to South Africa and testified against them, because I respectfully submit Madam Chair, that is a known fact. Whenever witnesses were called in the past, that testified in cases where those people were known members of the ANC or members of MK, they never came into the country to testify. For instance in the matter of Ebrahim, Mr Kasrils, Mr Nkadimeng and the Deputy President testified in London in that particular trial, they never came to South Africa, it was by commission. I respectfully submit it would never have developed to that stage as far as an assault is concerned.

Madam Chair, his explanation was further if he was left on the other side as a dead man, then it would have been a different matter entirely. Madam Chair, before I develop to that stage, it must be taken into account as to Mr Schoon's evidence. He said he interrogated Mr Mngomezulu during that evening, he then realised that he was not going to succeed on that evening, and the following day he was again interrogated. He never assaulted him, but he had been assaulted according to his evidence, what he deducted from the condition of Mr Mngomezulu.

I respectfully submit Madam Chair, that there is nothing to gainsay to the contrary as far as the evidence of Mr Beeslaar is concerned, that would support his version that when Mr Mngomezulu was taken away, that he was not severely assaulted. He never went with them to the police station as Mr du Plessis already submitted to the Committee, when the canvass was lifted, and when Mr Mngomezulu was taken away.

I respectfully submit in the Heads of argument, Mr du Plessis is arguing or submitting with respect, that the only probability is that he went there to get explosives, they never killed this person. Madam Chair, I respectfully submit if one looked at the further evidence, they were waiting at a particular spot and this is not disputed. They met and drove away from there and when Mr Beeslaar and them met up at the particular spot from where they decided they would part company, look at the evidence of Mr Beeslaar at this point. What does he do? He is totally passive, he sits in the vehicle because it is cold. If he had any duty whatsoever to keep guard, or to do anything at that stage, and not even enquiring what happens. Look at his evidence, look at his application. With respect I submit Madam Chair, he does not even admit to a crime, because he does not even say he associated himself in his application, with the killing of this person. If one reads at page 140 ...

ADV MOTATA: Viva voce-ly?

MR PRINSLOO: I beg your pardon? In his viva voce evidence in cross-examination and what was put, but on the basis that he puts here, I respectfully submit that if one looks at his application, it is vague, and I respectfully submit the reason being that he was under the influence of alcohol.

MR MALAN: Sorry Mr Prinsloo, does he not say in his written application that he knew all along that the person would be killed, and he went along? He said "I knew he would be killed", and he says later again "I knew already that he would be killed", but he goes with them, he accompanies them. Isn't that association?

MR PRINSLOO: I am not disputing that he associated himself, Madam Chair.

CHAIRPERSON: As a principle?

MR PRINSLOO: As far as the evidence is concerned, as a whole, but if one looks at his evidence, the submission I want to make, if one looks at his version, and his application, which is a vague one, as to the involvement, he says "the person got off, walked away with them." He doesn't give any detail with respect, Madam Chair. He does not talk about a drum being on the vehicle, he does not give any detail with regard to that. His memory must have failed him, I respectfully submit, because it is a fact, I respectfully submit, that this particular person was ultimately blown up. He was killed by some way, I don't know, but he was blown up and the reason for the killing, I respectfully submit was already dealt with by Mr Hattingh and the evidence, and detail given by Mr Schoon, and there could be no doubt as to the motive for killing this person.

As to how he was killed, I submit with respect Madam Chair, having regard to the severe assault, having regard to the fact that he was then transported to this particular police station on the back of a vehicle, under a canvass, and the fact that he did not receive any medical attention, and the evidence of Schoon, van Dyk and Pienaar that he died as a result of the assault, they are not shying away from that, nobody, none of them ever took the trouble to take him to a doctor. Nobody gave him any treatment. Pienaar as well as van Dyk admitted they assaulted him.

CHAIRPERSON: But are we quite clear as to why he died?

MR PRINSLOO: I respectfully submit Madam Chair ...

CHAIRPERSON: Can it not also be said that he died of suffocation?

MR PRINSLOO: Madam Chair, I respectfully submit as to the cause of death, that he was on the back of a vehicle, if he did suffocate, that is also a probability, coupled with the fact that he was severely injured in the assault, that could have contributed to his death. That is a probability I respectfully submit, a very strong probability. With regard to Mr Pienaar who said it was hot. Mr Beeslaar on the other hand said it was cold. Having regard to the fact that the place, Josini, it is a very hot place.

CHAIRPERSON: Yes, and then from Mr Schoon's evidence also, he says that this is a very hot place?

MR PRINSLOO: That is correct Chairperson.

CHAIRPERSON: And he is very familiar with the place?

MR PRINSLOO: That is correct Madam Chair. Madam Chair...

ADV MOTATA: But however, it worries me that if we look at the route to either the police station or Mr Schoon's house, that the intention when they left Leeuspoort was to turn him over to Swaziland. But they wanted to attempt en route to turn him over, surely they should have seen the state in which he was, that - was it a possibility that he would survive the journey or that this person, we cannot talk to him because there is also evidence before us that when he was at Leeuspoort, other evidence, that he was in a coma already?

CHAIRPERSON: Twice?

ADV MOTATA: That is the biggest problem, we could accept that he probably suffocated and all that, but if you look at the evidence too, they say "no, no, we wanted to turn him over, but before we take him over to Swaziland for the other consequences, we wanted to via Schoon's place or the police station and see if we couldn't turn this man over", then if they had realised because I don't think I have that kind of version before me, that he was so badly assaulted that he would not survive even if he had not been blown by explosives, that is my biggest problem.

MR PRINSLOO: Madam Chair, I respectfully submit if one have regard to the evidence of Mr Schoon and also have regard at the time when he came into this whole affair, Mr Schoon's version that he arrived that evening, when he was already assaulted and he gave his reasons to what he wanted to achieve by interrogating this person, and what he did the following day, and he realised, that is his version, that as a result of this assault, it was not going to help anything to assault him further and his approach was to deal with it in a different way. He said there was a remote chance if he had taken him and he could turn him as an informer, he would, he said a remote chance, he would rather do that instead of killing someone. I respectfully submit Madam Chair, one must look at this ...

CHAIRPERSON: No, he never had the intention to kill him in any case, whether he would have succeeded or not to turn him around, he never had an intention to kill him.

MR PRINSLOO: Mr Schoon had no intention to kill him?

CHAIRPERSON: Yes.

MR PRINSLOO: That is correct Madam Chair.

CHAIRPERSON: He had an intention to make him cross the border, so whether he had succeeded or not to turn him, it was his decision to make him cross the border?

MR PRINSLOO: That is correct Madam Chair, he would take him to cross the border, but I respectfully submit Mr Schoon said he associated himself with the fact that the man was assaulted, he never gave him any medical assistance and he foresaw that possibility and this, I respectfully submit with regard to the argument of Mr du Plessis, with regard to negligence or dolus eventualis, if you have in your possession a man that was severely assaulted and on top of that a policeman, and you don't give him any medical attention, then you must foresee as a real possibility that he would die, at least dolus eventualis would be present, it would be murder not to give him medical attention, to leave him in the veld somewhere to die, and not to assist him in any way. There could be no argument I respectfully submit other than it being murder, on that particular basis. The fact - if one takes only Schoon's version that he would take this man in a bad state and would leave him at Maxpass and he would die there, he would be guilty of murder on his own version by not giving him any medical attention, only in the hope that someone finds him there or he would go to a kraal nearby. I submit Madam Chair, that he must have considered as a possibility that he could die as a result of that. One must not loose sight of the fact that it is really Schoon who is the one that says "no, this man is going to be taken back to Maxpass, we've got now a problem, he is severely assaulted" and one can never say that Schoon was part and parcel of that plan to assault him prior to this, but when he found him, he was in an assaulted state, because (indistinct) only came at a later stage.

MR MALAN: With all due respect, is all the evidence not showing that he was taken out at the request of Schoon, whereas Schoon in his written application starts off saying "I got an order from van Dyk to pitch at a certain place" and he only makes the concession that Mr de Kock may well be right that he put that request, but he does not say that he remembers having put such a request.

MR PRINSLOO: I respectfully submit Madam Chair, he says he cannot recall that he made a telephonic request, but that he did concede that he made the request, but he emphasised the fact that he wanted to speak to Mr Mngomezulu. There is no getting away from that.

CHAIRPERSON: Yes ...

MR PRINSLOO: He is not shying away from that.

CHAIRPERSON: He didn't say that in his written application.

MR PRINSLOO: I beg your pardon, Madam?

CHAIRPERSON: Mr Malan's difficulty is that that was not disclosed in his written application, that evidence was led viva voce.

MR PRINSLOO: That is correct, I submit, Madam Chair, he starts at the point when he became involved as far as the interrogation is concerned. He should have, I concede that.

CHAIRPERSON: Yes, he starts off ...

MR PRINSLOO: He should have given more detail.

CHAIRPERSON: He starts at a point where he is, he receives an instruction from Mr van Dyk and he sees this unknown black person and the impression that he creates in his written application is that he knows nothing about the request which he had conveyed to Mr de Kock, an important request to have this man abducted because of the important information that he wanted to extract from him.

MR PRINSLOO: I respectfully submit Madam Chair that the application is scanty in that way, but Mr Schoon's evidence ...

CHAIRPERSON: And very misleading?

MR PRINSLOO: Madam Chair, I respectfully submit that one cannot objectively say that he intentionally attempted to mislead. If one looks at his evidence, he gave very detailed evidence and he was cross-examined at length, and he made concessions.

CHAIRPERSON: Yes.

MR PRINSLOO: And he gave the detail I respectfully submit, it has been a problem, I respectfully submit, Madam Chair, in numerous applications where it does not have all the detail that it requires, where the point starts, and it could well be when it was drafted, it started at a particular point, instead of giving more detail and canvassing other issues.

CHAIRPERSON: Yes.

MR PRINSLOO: But I respectfully submit Madam Chair, at the end of the day, that is what the Committee must consider. All the evidence that is placed before the Committee, what does Mr Schoon say? If one looks at it objectively with all the evidence before the Committee, then with regard to his particular involvement, then clearly it indicates that he was the one that was still hoping that he could turn this man, to find some way out apart from killing him. But the fact remains that he died and he associated himself with the death of that person. He said himself, he repeated that a few times, "I would be guilty of murder", he said I would be guilty of murder" and he is not trying to shy away from that. I respectfully submit Madam Chair, the crucial point arises when they arrived on the beach and that is where Mr Beeslaar comes in, apart from this reconnoitring and all that which there was already an address to you Madam, is the fact, the detail that is provided now by Mr Beeslaar, he is absolutely vague about this, as to why he would be taken for a walk, as to why they would carry all that stuff, 25 kilograms of explosives and a man who according to the evidence, was a very stubborn man who was resisting all the time.

Can one, I respectfully submit, imagine knowing that, that you would take him off the vehicle whilst you have in your possession and available to you a 4x4 vehicle? Why would you do that, it does not make sense, I respectfully submit, Madam Chair. According to Mr Beeslaar, there was moonlight.

The most probable version is he was driven to a particular spot and then it was detonated from a distance, because the equipment was available for that purpose according to the evidence of Mr Schoon. There is nothing to the contrary. Mr Beeslaar says later on, he says in his application that he inferred that he was blown up. How would that person have been killed? He says they went away and were back within an hour, walked there, he does not hear an explosion and bear in mind, Madam Chair, he had to keep observation. With respect, if he was looking in that direction alongside the beach, he surely must have seen the explosion, because he was alert to that. He says he knew they were going to eliminate him. Then he must have been concerned about that and he is so vague about this, he does not give any detail whatsoever. He was indeed unable to give detail. He said "I cannot comment" on a number of occasions, and "as far as I can recall", and I respectfully submit Madam Chair, that as far as Mr Beeslaar is concerned, it is apparent that he's got some difficulty with his memory and in his enquiries at a later stage as to whether people made application or not, I respectfully submit Madam Chair, that he had doubt in his mind, he wanted some assistance to refresh his memory, but I don't want to speculate about that, but why does he do that? That is a very strange particular approach. I think everyone was in the dark, likewise these three applicants did not have the assistance of Generals or anyone else, they were on their own as well. I don't think, I respectfully submit, much turns on that, Madam Chair. But in fairness to Mr Beeslaar, and which is not contradicted, is his background, his problem he's got and with regard to that, it is my submission that the Committee must take that into account. What the Committee has is a fact that Mr Mngomezulu met his death on the beach on that day, at least, he was blown up. Mr Schoon says he was killed, he died at least as a result of what he suspects, the assault, he was under the tarpaulin, but he was dead at the police station, at the office of Mr Schoon. That is the evidence of van Dyk and Pienaar, three witnesses, Madam Chair and my respectful submission is that there can be no doubt that he died when he was at the police station, and the problem arises only with the evidence of Mr Beeslaar, and in the circumstances, Mr Beeslaar associated himself when he was blown up. There was a political motive, and in those circumstances I submit, that including Mr Beeslaar and the three applicants, I don't want to speak on behalf of Mr du Plessis, but (indistinct) that is here, should be granted amnesty. As far as Mr Pienaar is concerned, and Schoon, I respectfully submit they knew that Mr Mngomezulu was kidnapped from Swaziland, that he was illegally detained by them, he was assaulted. They themselves admit to assault, Mr Schoon did not perpetrate an assault, but he knew he was assaulted, and did not provide any medical assistance to him, he did not report that and furthermore he died later, and my submission would be, I respectfully submit, that amnesty ought to be considered on the basis of kidnapping, at least on a conspiracy basis, secondly assault upon Mr Mngomezulu.

I submit Madam Chair, the fact, if they admit to murder, the assault would fall away, because it is a continual act until he died, and they foresaw the real possibility that he would die on the basis of dolus eventualis, the very least culpable homicide, my submission would be murder and then that he was later blown up, possession of the explosives by Mr Schoon, Pienaar and van Dyk who associated themselves with that possession for an illegal purpose. It cannot be said that they possessed it legally and later on the desecration of his body, that must be taken into account, defeating the ends of justice for not reporting this particular issue.

I respectfully submit Madam Chair that both applicants comply with Section 20(2)(b) and 20(2)(f). If there is anything else, I would attempt to answer the questions.

I may just, there is one issue which I did not mention, but I don't think it is really relevant, the rugby game, I don't think that is important because there is no evidence from Mr Beeslaar, I forgot about that, that he knew at that stage that the man was going to be abducted or not, that is by the way, thank you Madam Chair.

CHAIRPERSON: Yes. There is only one aspect which is troubling me from the evidence of both Mr van Dyk and Mr Beeslaar, and that is how Mr Beeslaar got to Piet Retief. I think this is not your problem.

MR PRINSLOO: Thank you Madam Chair.

CHAIRPERSON: It is actually Ms van der Walt's problem. I forgot about that, if I recall the evidence given viva voce by Mr van Dyk, it was that he came with Mr Beeslaar.

MS VAN DER WALT: That is correct.

CHAIRPERSON: The reason was that there was a shortage of personnel at Vlakplaas and that is why even though Mr Beeslaar was an Administrative Officer, he was brought into this team which was coming to do something far much more than just administrative work, whereas the evidence of Mr Beeslaar is completely different. He says that he travelled alone to Piet Retief and it wasn't because he was there to make a shortfall in terms of the personnel that Mr van Dyk wanted, he was there to attest to some documentation concerning the informer that he had to attest to. I am just troubled by these very inconsistent versions with regard to how he got and why he was in Piet Retief. I should have put it to you Ms van der Walt, as well as to Mr du Plessis.

MS VAN DER WALT: May I respond to that?

CHAIRPERSON: Yes.

MS VAN DER WALT: I think that if one observes the operation which was executed there by the members of Vlakplaas in its entirety, then one ought to accept the version of Mr van Dyk because there is no reason why he would be lying to you with regard to the fact that Mr Beeslaar went with him and that they were at Vlakplaas together, and that he went with the purpose of filling up the shortage of manpower because the whole operation had to do with Mr Mngomezulu. What I find strange and I did not cross-examine on that because I felt that it might not be as important, is that Mr Beeslaar would go with an askari or a person who had been turned, he would go to obtain the particulars about the person, but there is no evidence that there was ever really such a person. There is no evidence that he was ever away from Moolman to fulfil those duties of his or that he was away from Leeuspoort in order to carry out any other duties. According to his own evidence, he was simply there all the time, if I understand his evidence correctly.

CHAIRPERSON: No, he wasn't there all the time. His evidence was that he was not there all the time, he did go out to attend to such documentation or the processing of a certain document with regard to an informer or informers.

MS VAN DER WALT: Oh, then I am incorrect. Then I would like to argue that you accept Mr van Dyk's version that he went with him for that objective.

MR MALAN: But then shouldn't one read this against the background of the other evidence that this was one of the regular three week Vlakplaas deployments? Mr Beeslaar's evidence is that he was there for a week and then he returned?

MS VAN DER WALT: That is possible, I cannot take it any further.

MR MALAN: May I just ask you about something else, because I still have the one problem and that would be the evidence of Mr Schoon which is then substantiated by the other two applicants, van Dyk and Pienaar which states -

Secondly or alternatively I would look for messages, the man who was loaded onto the bakkie was either in a coma or unconscious according to the evidence, although Mr Schoon says that he was not certain, but the other two state that he was either in a coma or he was unconscious. With these motives in mind to interrogate and replace him, they drove with an unconscious man under a tarpaulin sheet, stopped the vehicle, lifted the sheet, saw that he was dead, lowered the sheet and then fetched the explosives with which to get rid of him, that is the evidence and everyone of them was asked "how did you know that he was dead" and everyone said "we didn't touch him, we could see". What does one do with such evidence, how does one discern the difference between someone who is in a coma or someone who is dead, simply by lifting a sheet of tarpaulin and having a look?

MR PRINSLOO: With respect honourable Chairperson, it was Schoon's evidence, a decision in his own mind, to possibly interrogate the man further at Josini, he says there was a minor possibility. This is not an aspect that he says he shared with the others, it was his decision, he decided at that stage what was going to take place, not the other two. He stated that he would rather do this instead of killing the man. With respect honourable Chairperson, furthermore it is the evidence of Schoon that after they had lifted the tarpaulin and determined that he was dead, they decided collectively that they would blow him up.

MR MALAN: My question Mr Prinsloo is, how does one explain that one can see the difference between a man in a coma or a man who is dead by simply lifting up the sheet?

MR PRINSLOO: I beg your pardon Chairperson, according to the evidence of the three, if I have understood it correctly, they saw that he wasn't breathing and Schoon said that this man appeared to be dead. He has testified that he had seen many corpses in his experience and from his experience, this person appeared to be dead. He wasn't breathing, that is what he saw there. Medically speaking, with respect from my side, I cannot say that I have the expertise to say what the difference is between a person in a coma and a person who is dead, but his evidence is that the man wasn't breathing. I cannot tell you whether a person in a coma is capable of breathing regularly.

MR MALAN: I can understand that Pienaar and van Dyk would not question Schoon's diagnosis, because they wanted to get rid of him as well, according to their own evidence, but I still find it very difficult to understand that Schoon can say that he had the experience which enabled him to distinguish between a person who was in a coma and a corpse, simply by looking at the person.

MR PRINSLOO: It goes somewhat further though Chairperson, Schoon's evidence is that when he had the person on the beach where he prepared the explosives, it was very clear to him there that the man was dead. The man was taken along and unloaded from the bakkie, placed in a position to be blown up and then according to that evidence, they were satisfied that he was indeed dead.

CHAIRPERSON: I have a problem still Mr Prinsloo, the determination is made just by looking at a person and they then conclude that he must have died. There is no attempt to try and do something to indeed confirm whether their observation is correct, they don't try to pour water over him to see whether he would be revived by that process and as a policeman, he surely must know better?

MR PRINSLOO: I respectfully submit Madam Chair, how often doesn't it happen when people are at the scene of an accident, then they conclude immediately that the person is dead and leave him at that scene, or does not call in an ambulance, knowing he is dead, they call the mortuary van, this happens frequently at scenes of an accident. One sees a person and he appears to be dead, well, if they were wrong in that respect, I respectfully submit Madam Chair, and they still blew him up afterwards, that is a different exercise, but it is still their act in blowing him up. Ultimately the result is, he is dead. They foresaw and they believed him to be dead and the result would be the same. The cause of the death, according to their version, must be the assault and coupled with this, as you put to me Madam Chair, is the fact that he was under a tarpaulin, on a hot day. That in itself could have contributed to his death. As to whether he was in fact dead, that is only their version, what Schoon said from his experience what he saw, and he concluded that the man was dead, and later the handling of that person, he was also satisfied that he was dead. If one takes into account, the driving to the beach, taking him off, putting him down and then the ultimate blowing up of the body.

CHAIRPERSON: The reason why I posed ...

MR HATTINGH : Sorry Chairperson, for interrupting, I have been requested to ask you if Mr de Kock can be excused at this stage, I don't see any reason why he should be present.

CHAIRPERSON: Yes. Mr de Kock, you are excused, and thank you for attending the hearing.

MR HATTINGH : Thank you.

CHAIRPERSON: The reason why I am asking this question with regard to Mr Beeslaar, is whether Mr Beeslaar was acting under anyone's instructions when this incident happened.

MR PRINSLOO: Madam Chair, if Mr Beeslaar, he was on duty, he accompanied the police under the command of Mr van Dyk and at least, I am not arguing on behalf of Mr du Plessis, but at least by implication ...

CHAIRPERSON: On your version?

MR PRINSLOO: On my version, at least by implication under the instructions of Mr Beeslaar, of Mr van Dyk, if he drives along and he accompanies them.

CHAIRPERSON: Yes.

MR PRINSLOO: Then according to Schoon's evidence, he was, Mr van Dyk spoke to him and told him to wait at a particular spot and thereafter they accompanied him, so I respectfully submit he must have been under the instructions of van Dyk at that stage.

CHAIRPERSON: Yes. Mr du Plessis, on your client's version he left for Piet Retief, not with Mr van Dyk, he was not under Mr van Dyk's command and how do you explain his participation in this incident?

MR DU PLESSIS: Well, Madam Chair, he testified the reason for his going there. It was unrelated to this incident.

CHAIRPERSON: Precisely.

MR DU PLESSIS: Yes, but when he was there, he was under the command of Mr van Dyk and he executed orders of Mr van Dyk, so obviously if Mr van Dyk said he must come along, he had to come along, and if he was needed or required, he was utilised. May I just mention Madam Chair, that Mr Beeslaar has quite a few amnesty applications, and each amnesty application, it is the same situation, where he was, went down either as an extra person or for administrative purposes and then he was on the scene, he never participated, but he was on the scene when things happened. Every application of Mr Beeslaar is in the same way, so at the end of the day Madam Chair, the evidence of Mr Beeslaar is that he went for a specific purpose, when he was

there, he was on the scene, he was under the command of Mr van Dyk. Mr van Dyk took him along, he told him to drive and he testified that he was also utilised from time to time, in accordance with Mr van Dyk's evidence, for certain operational tasks, if he was required.

CHAIRPERSON: Yes.

MR DU PLESSIS: And he testified that that was the reason why he participated in inter alia the interrogation. In my submission there is no contradiction between Mr van Dyk's evidence on that score and Mr Beeslaar's evidence.

CHAIRPERSON: There is with me, because Mr van Dyk says he left Pretoria or Vlakplaas for Piet Retief with him.

MR DU PLESSIS: Yes, in that regard.

CHAIRPERSON: Because he had to make up the shortfall, whereas Mr Beeslaar says, "no, that is not the case, I left on my own, I had things which I went to Piet Retief to do, which are unrelated to why Mr van Dyk had to go to Piet Retief."

MR DU PLESSIS: Well, Madam Chair, somebody's memory is failing him. On the other hand Mr Mogoai says he went with Mr Beeslaar.

CHAIRPERSON: Precisely.

MR DU PLESSIS: So we have that kind of situation. One can accept that somebody's memory is not serving him well in this regard, but Mr Beeslaar was very adamant about his functions and nobody disputed the fact that he is an Administrative Officer and that he was only now and then utilised for operational purposes. He remembered clearly that he went there, in this operation, in respect of this operation for the purpose he testified about. If he wanted to lie, it would have been much easier to have said, just to have ignored that and not to have said anything about the administrative question.

CHAIRPERSON: From his evidence, is it clear that he was acting under anyone's instructions?

MR DU PLESSIS: Yes, he testified that he acted under Mr van Dyk's instructions, Madam Chair, there was specific evidence, I asked him about that, and I specifically elicited that evidence from him, and he testified to that, and I think it is in his amnesty application, too.

CHAIRPERSON: If he did not go with Mr van Dyk, why would he have believed that Mr van Dyk was the person in authority to give him instructions when he was in Piet Retief as to what to do, if it was unrelated to why he was in Piet Retief?

MR DU PLESSIS: Madam Chair, his evidence was that he was part of Vlakplaas, and Mr van Dyk was the senior person of the Vlakplaas contingent there at Piet Retief, so if he was there and there was a shortage of people or somebody extra had to be utilised for something, his evidence was as I understood it, that he could have been utilised and that he was utilised in that regard. With respect, the only contradiction there may be is that van Dyk said "I took him along because I wanted to use him as an extra person", but with respect Madam Chair, if one looks at the situation, if the evidence is that they only went to interrogate this person and van Dyk went along, he took a lot of askaris with to participate in the interrogation, why would he want Beeslaar who is an Administrative Officer, to go with? It doesn't make sense, it is not necessary for him to take him.

CHAIRPERSON: And from the totality of the evidence, he had a very minimal role to play?

MR DU PLESSIS: Correct, yes.

CHAIRPERSON: As a person, that is Mr Beeslaar.

MR DU PLESSIS: Yes, so there is a sense of improbability in Mr van Dyk's evidence that he took him as an extra person. It may be that Mr van Dyk remembered him as somebody that he utilised extra, because he utilised him as an extra person when he was there, but on the whole, it sounds improbable that Mr van Dyk goes down, he knows there are people from the Piet Retief white Security Officers from the Piet Retief area there, he takes askaris with to go and interrogate this person. Why does he take the Administrative Officer along to assist? There is no need for him to be there?

CHAIRPERSON: As Schoon says, he was just a passive.

MR MALAN: Someone had to bring back van Dyk's car after having returned him to the border, that is the only direct implication which he might have planned for van Dyk if he had in mind to take him down, so it is more probable that he did go down in his administrative capacity, it seems, but I don't think much turns on that and I think that is your argument, at the time that the incident happened, all through it, he was clearly under the authority of the senior officer at the venue, and that was van Dyk.

MR DU PLESSIS: Yes, that was his evidence Madam Chair, and one must accept in the total, global situation that the Security Police found themselves in, and especially Vlakplaas, if he went with to a place where a Vlakplaas contingent was there, and there was one person who was a Commander, that person was the person who dished out the orders and if that person told Mr Beeslaar "listen, we need another person here to help or to guard the vehicle" or he thought that "we need somebody extra there" and he told him to come along, he would have gone along. That is why Mr Beeslaar said sometimes, especially when he went out, he was utilised on operations, and that is where all his amnesty applications come from, in respect of all these times when he was utilised as an extra guy when he was there. Madam Chair, but in respect of the question who drove with who down to Pietermaritzburg, in my submission, nothing turns on that, sorry Piet Retief. If Mr Mogoai went with Mr Beeslaar, Mr Beeslaar went with Mr van Dyk, nothing turns on that, the only thing that turns on that is the motive with which Mr van Dyk testifies he took him with, with respect. May I just make one other point which I thought of, I don't want to react to my learned friend's argument, I think my argument was clear enough, there is only one point I want to make and I think everybody forgot that, and that is that the evidence was that the man, the body was blown up, I think one and a half kilometres from where they were. I cannot remember if there was any evidence that the body was blown up right next to the vehicle, but they must have moved some distance away from the vehicle, to blow up the body and that is the only point I want to make. They must have moved with him, some distance from the vehicle, even on their own version.

CHAIRPERSON: That is the version of Mr van Dyk and Mr Pienaar and Mr Schoon?

MR DU PLESSIS: On their version, yes.

CHAIRPERSON: Yes.

MR DU PLESSIS: Yes.

MR RAMAWELE: Madam Chair, there is a request that Mr Nofomela be released, is that possible?

CHAIRPERSON: Yes, it is possible, I actually forgot about Mr Nofomela when I granted Mr de Kock leave.

MR RAMAWELE: Thank you.

CHAIRPERSON: Thank you for attending, Mr Nofomela. Mr Lamey?

MR DU PLESSIS: Madam Chair, may I perhaps just ask if I could be excused now?

CHAIRPERSON: Yes, you may be excused.

MR DU PLESSIS: Thank you, I am indebted to you Madam Chair, I really appreciate it.

MR LAMEY IN ARGUMENT: Thank you Chairperson. Chairperson, it is my submission that given the lapse of time and the individual abilities of individuals to remember details of incidents differently and also to forget certain details, I submit that as far as my two clients are concerned, that, and I refer specifically to Mr Koole who has initially missed the interrogation and the taking of the victim to the place near Piet Retief, I submit that that can only be attributed to a bona fide error in memory. I also say that because the evidence of the other applicants concerned, van Dyk, Pienaar, yes, van Dyk and Pienaar was that

he was in fact taken first to this place before he was taken to Josini. The only other person that has excluded that possibility is Mr Nofomela and my submission in this regard is further that even if a person, if a person bona fide believes and recalls a certain aspect still today, one could assume that he would not concede making a mistake, but that does not mean that he is objectively speaking in the totality of all the evidence, not mistaken. I submit that as far as the relevant facts, if I can just make my submissions regarding Mr Koole, I submit as far as the relevant facts are concerned, he has made a full disclosure, he has disclosed the other members who he recalls were present and involved in the abduction. There was this difference between him and Mr Mngadi about whether the informant got out of the vehicle or not. I submit that the probability is that the informer's task and only task could have been under the circumstances, to actually identify the exact place and not merely the broader area, but the house of the victim.

It is my submission also that in the alternative that Mr Mngadi was the whole time in the bus, but he also conceded that at a stage the informant got out. My submission is that as far as Mr Koole is concerned, that he has made a full disclosure of all the relevant facts, he disclosed his role in the abduction and also the assault just after the abduction. He disclosed his role regarding the interrogation and assault at Josini dam.

It is my submission that one cannot really expect him to recall all the details about that and specifically the role that each and everyone played.

In this regard I also want to make reference here to his evidence about the presence of Mr de Kock. On that aspect, he was certain about, Chairperson, and there could be no motive whatsoever on the side of Mr Koole, and may I just pause to say I am making these submissions on the basis, I am not sure how the Committee would approach this aspect as far as this difference is concerned, between my applicant and that of Mr de Kock. If it is approached on the basis that one will have to make a credibility finding here on Mr Koole and Mr Mogoai, then I submit there is no, that criticism cannot be levelled against their evidence in this regard to the extent that a negative finding should be made on their credibility on this issue and further to the extent, that they should be denied amnesty because of that.

MR MALAN: Mr Lamey, if I may just put the question to you because this is to me the only question. If the Committee should come to a finding that de Kock was indeed not present, that Koole and Mogoai kept to their story simply on the basis, because this is an argument that has been advanced in either argument or cross-examination, on the basis of the fact that they made statements to the Attorney-General for protection, and that they therefore have a real interest and are therefore implicating people falsely. Would you argue that they should still be entitled to amnesty?

MR LAMEY: My submission is that that is purely a suggestion, and there is no whatsoever evidence to substantiate that. The question in my mind is, what is the difference if you are approached by the Attorney-General's staff to say "make us a full disclosure of what you know about your role and the role of others in this incident" and if you, if, because there is a very important if when you become a State witness, and that is that you must tell the truth and essentially that is the criteria also in amnesty.

MR MALAN: But is that truth not based on the contents of the statement, that is really my question, in terms of assessing whether this person did indeed comply with the requirements in order to be protected in terms of 204?

MR LAMEY: No, no, not, no indemnity in terms of 204 is granted by the Court ultimately. So he makes his statement on the basis that his evidence will be tested in a court of law, and ultimately and scrutinised by a court of law, and then only he would get, an Attorney-General cannot give you amnesty just based on the basis of your statement.

CHAIRPERSON: Statement, yes.

MR LAMEY: That is in terms of the law not possible.

MR MALAN: I might have put it incorrectly, but the question really relates to whether the person is indemnified on the basis of telling the truth, but the truth should correspond with the original statement, if he comes with a different story to the original statement, would a Court grant such a person indemnity? I am looking for a possible motive if it cannot be ascribed to simply being mistaken?

MR LAMEY: I am not sure whether I understand that problem.

MR MALAN: I think you can leave it there and continue, thank you. I don't want to waste too much time.

MR LAMEY: Just on the question of motive, there is no whatsoever evidence that they implicated Mr de Kock purely for the sake of prosecuting him Chairperson. One must also bear in mind ...

CHAIRPERSON: Because of the statement they have made to the Attorney-General?

MR LAMEY: Yes, yes, but even just for argument sake, assume that possibility, if you - why would that be a motive in your amnesty application, and that I fail to understand Chairperson.

CHAIRPERSON: I think you can leave this point, I agree with you, it's got nothing to do with the issues we have to decide for purposes of considering whether he has fully disclosed his participation as required by Section 20(1) of the Act.

MR LAMEY: Yes. That submission is obviously, also counts for Mr Mogoai. I only represent these two applicants, and therefore I think it would be inappropriate for me to really comment as to whether Mr de Kock is making a full disclosure, but there is also this possibility that let us assume for the moment, because in the light of the evidence of Koole and Mogoai, that Mr de Kock made his appearance very briefly during this operation. Now, and obviously it was - this operation was a task delegated to one of his trustworthy Warrant Officers, or officers, Lt van Dyk and it was in conjunction with Schoon and Pienaar. Given his brief appearance, my submission is that the probability is given also Mr de Kock's various involvement in other matters, that this is a matter where he has just purely forgotten that he made his appearance there, and therefore I submit that one need not necessarily make a white and black decision on this aspect between these two applicants, but in Mr Mogoai's evidence, he is also very clear on this and as I say that he cannot be mistaken about this. About the other applicants, Chairperson, Mr Mbelo for instance cannot remember Mr van Dyk, so you know, I cannot think that one could attach value in this regard that he didn't mention Mr de Kock. Mr Mngadi - also given the brief appearance of Mr de Kock and the role that Mr Mngadi played by looking after the informant. It is very probable that Mr de Kock arrived there, but he did not see him, and in fact that was his evidence. He said he didn't see him, but that does not mean that he wasn't there at that particular time for a very brief period.

CHAIRPERSON: Well, at least your two clients are the only ones who saw him, even if he was there for a brief moment, what are the probabilities in that case, that out of all the people who were there, only these two people alleged to have seen Mr de Kock.

MR LAMEY: But the probabilities Chairperson, if you look at the examination on each and every one here, and Mr Mbelo about his memory of van Dyk, I mean Mr van Dyk was there the whole time, much more than Mr de Kock. Mr Mngadi was looking after the informant in the, he firstly said the house and then he said the room, we also heard the evidence that the people were coming and going and - in my submission it is not improbable that Mr de Kock could have arrived there at times when other people did not observe his presence there.

CHAIRPERSON: Are you saying that Mr de Kock could have arrived and instead of speaking to any of the white members, decided to speak to a black member and having had the evidence presented by the black members, the status they had at Vlakplaas, he nevertheless goes to a black member, he speaks to him and he doesn't speak to any of the white members?

ADV MOTATA: Before you respond to that, what I want you to couple with, the appearance or non-appearance of de Kock, how would that affect the applications of Koole and Mogoai?

MR LAMEY: I have said from the very start, I am not sure how the Committee approaches this, and this has been a problem for me for some time, about this aspect. This is why I say, if it comes down to a credibility finding, and you are bound to find that Mr Koole and Mr Mogoai is lying on this aspect and therefore he cannot get amnesty, then I submit that, then my submission is that their evidence is not incredible for you to make that finding, that is my submission.

CHAIRPERSON: Wouldn't you submit that it would not be a critical issue on which such a decision could impinge whether they should qualify for amnesty or not?

MR LAMEY: No, I take it you mean that ...

CHAIRPERSON: It isn't an essential issue that should be taken into account when deciding whether they qualify for amnesty or not?

MR LAMEY: Yes Chairperson, if that question implies that they have made a disclosure which is corroborated about everything else and that doesn't necessarily impact on full disclosure, then I agree with you. I am not sure what ...

CHAIRPERSON: I am listening to your submission, you have to make your submission.

MR LAMEY: Sorry Chairperson, could you just then help me here.

CHAIRPERSON: What are you submitting to decide whether they should be granted amnesty or not, the fact that their version is different, the version with regard to de Kock's presence, is different from all the other applicants in relation to the same incident.

MR LAMEY: Chairperson, no, my submission is not that that stands in the way of granting them amnesty. I have made my submission on the basis that that would only be relevant if you regard this as an aspect where we must find that they have deliberately lied to the Committee and therefore on the aspect of full disclosure, cannot be granted amnesty, and that is not my submission, no.

CHAIRPERSON: Yes. You may proceed, Mr Lamey.

MR LAMEY: Chairperson, then that leaves me with little else to say. My submission is ...

CHAIRPERSON: If you have less to say, it is better to say nothing, least you say something wrong.

MR LAMEY: Chairperson, I just want to round off my argument by saying that as far as both applicants are concerned, they were foot-soldiers and obviously the broader political objective were perhaps more knowledge privy to the higher senior officers. The question of the PAC came in and my submission is that was Mr Mogoai's perception, and I submit that he had a political objective in this regard, as well as that of Mr Koole, clearly my submission established. Chairperson, that is my submissions, thank you.

CHAIRPERSON: Thank you Mr Lamey.

MR LAMEY: Unless there is anything else.

CHAIRPERSON: No, thank you. Mr Ramawele?

MR RAMAWELE IN ARGUMENT: Thank you Madam Chair. In brief as far as the application of Mr Nofomela, it is my submission that Mr Nofomela had made a full disclosure in terms of the Act, he has explained to the Committee what happened, his participation in the kidnapping and assault of Mr Mngomezulu and furthermore that his conduct also according to the evidence

that he had given, is also a conduct which is associated with a political objective. As far as the discrepancy between his oral testimony and the written application, Mr Nofomela has explained to the Committee the reasons why there are discrepancies, and those reasons were not taken to task as he put them, under cross-examination. It is my submission that his evidence relating to what happened, is straight forward, clear and that he should be regarded as having complied with the requirements of the Act in that he had made a full disclosure and therefore I would request the Committee to grant Mr Nofomela amnesty in respect of the offences kidnapping, arson and murder. That is all.

CHAIRPERSON: With regard to arson, what would be your submission in so far as instructions are concerned?

MR RAMAWELE: Madam Chair, it is the evidence of Mr Nofomela that he did not burn the house, but he says he put the lamp under a bed and his intention was that the house must burn down, and I might be mistaken, but I think there is evidence to the effect that the house was subsequently found burnt, I am not sure about that.

CHAIRPERSON: No, it is just that in his written application, he says it as a fact that the house was set on fire? In his viva voce he is not sure?

MR RAMAWELE: Yes, Madam Chair, according to his testimony he is not sure that the house was actually burnt.

CHAIRPERSON: But Mr Kgasi can assist us in that regard, whether the house was burnt or not.

MR RAMAWELE: Yes.

CHAIRPERSON: Was he acting under instructions?

MR RAMAWELE: My submission is that at that time, he was acting under an implied instruction to do so.

CHAIRPERSON: To burn the house?

MR RAMAWELE: To burn the house, yes.

CHAIRPERSON: Yes?

MR RAMAWELE: I would say he had instructions to abduct Mr Mngomezulu and we also have to bear in mind the activities of Mr Mngomezulu and the fact that in that house possibly there could have been things which were of interest to the Security Police and therefore I would submit that Mr Nofomela was acting under an implied authority to do so.

CHAIRPERSON: Isn't there evidence that somebody searched the house, looking for arms and nothing was found and that is when he decided to put the lamp under the bed?

MR RAMAWELE: Yes Madam Chair, somebody searched the house, but the person who searched the house was not working in conjunction with Mr Nofomela. I think Mr Nofomela just saw that person searching the house and at that time, Mr Nofomela had already made a decision to leave the lamp under the bed.

CHAIRPERSON: No, that is not the evidence. The evidence is that Mr Nofomela made enquiries to this man, why he was in the house to start with, and the person responded by saying that he was there to check the house for weapons.

MR RAMAWELE: I would submit further to say that taking into account the period within which, the time period within which Nofomela and his colleagues were at Mr Mngomezulu's house and the abduction, that it couldn't have been sufficient time to confirm and verify that there were no other things which were of interest to the Security Police like documents, etc, or names of individuals, etc, etc.

CHAIRPERSON: But wouldn't that be information you would like to have in your hands, instead of burning it?

ADV MOTATA: And the thing of interest is Mngomezulu whom they had to abduct, that was of interest to the Security Police.

MR RAMAWELE: That is why I am saying Madam Chair that yes, the primary purpose was to abduct Mr Mngomezulu but if you look at the fact that these - Almond Nofomela was actually a Security Police officer, I would reasonably assume that he would have to - it was necessary then to make sure that if there were any other things which were in the house, for instance like documentation or whatever, that they were obliterated, even if that was not the direct instruction from his superiors.

CHAIRPERSON: Even if they would have been valuable documents for the Security Police to have sight of?

MR RAMAWELE: Yes, Madam Chair, the problem here was there was no time, there wouldn't have been time to properly go through and check, because of the fact that - as Mr Nofomela testified, there were dogs and they were in a hurry and the were in a foreign country, so one couldn't under those circumstances, they didn't have the benefit of if it was in South Africa where they would have the benefit of being protected, they were in a foreign country and from the evidence of Mr Nofomela, they had to go back on foot.

CHAIRPERSON: But his evidence has been quite pointed, the instruction given to them as a group was to go to Swaziland and abduct Mr Mngomezulu.

MR RAMAWELE: I agree.

CHAIRPERSON: This is not an instruction given to Mr Nofomela alone, this is an instruction given to Mr Nofomela and his colleagues.

MR RAMAWELE: I agree Madam Chair, but at the same time, we have also to take into account there are certain decisions which I believe Mr Nofomela had to make at that particular time.

MR MALAN: If I remember correctly, Mr Nofomela did not advance any political reason for setting the house alight?

MR RAMAWELE: Yes, he did not.

MR MALAN: On what basis then would he qualify if there was no political objective on that?

MR NOFOMELA: On the basis of the fact that Mr Nofomela was a Security Police Officer, he was abducting a trained political person and on the basis of the fact that he had nothing to gain from burning that particular house. He did not know Mr Mngomezulu.

MR MALAN: Had he killed the cattle or livestock of the deceased and half his family, would he have qualified for amnesty on the basis of him being a Security Police and he had nothing to gain? I think we can leave the argument there.

CHAIRPERSON: Does that conclude your legal argument?

MR RAMAWELE: Yes, it does.

CHAIRPERSON: With regard to implied authority?

MR RAMAWELE: Yes.

CHAIRPERSON: Mr Kgasi?

MR KGASI IN ARGUMENT: Thank you Madam Chair. After listening to the evidence of the applicants, it is common cause that their recollection of torture differ. All applicants with the exception of Mr Beeslaar and Mr de Kock admit torturing the

deceased, however their recollection of torture, the methods employed, differ. There are some applicants who say he was slapped and kicked, there are other applicants who say a baton was used, there is still no - they also differ on the issue of whether he was blindfolded or not. Another common cause is that they also differ on how Mr Mngomezulu was murdered or at least regarding the events that led to his passing away. There are applicants who alleges that Mr Mngomezulu died in the process of torture, that is at the time when he was taken to Sodwana, he was already dead and there has been evidence to the contrary that has been adduced to suggest otherwise, which suggests that Mr Mngomezulu, when he climbed the van, he walked himself to that van, and that they only helped him to put him into the drum. Evidence has been led further that at the beach, at Sodwana, Mr Mngomezulu walked. To me this smacks of conspiracy Madam, in the sense that if I look at the sequence of events, there was a stage when some members of the team, particularly black members of this team, were told to go away and at the time when they left, that was also adduced in cross-examination that at the time when they left, Mr Mngomezulu was alive.

This was further substantiated by evidence of Mr Beeslaar who suggested that at the time when Mr Mngomezulu was loaded into the bakkie, he was alive. The question that remains was the testimony of Mr Beeslaar as opposed to the testimony of Mr Schoon, Pienaar and van Dyk. My humble submission is that Mr Beeslaar was a weak link in this conspiracy, hence an endeavour was made to put him as a person who was drunk, as a person whose memory was fading. Your Honour, I would not be long in my address, I would leave it at that. It is my instruction that the issue of whether full disclosure was made, and whether amnesty should be granted, should be left to the discretion of this Committee, thank you.

CHAIRPERSON: Thank you Mr Kgasi. Mr Steenkamp, do you have any submissions to make?

ADV STEENKAMP: Madam Chair, unfortunately I have no further submissions, thank you Madam Chair.

CHAIRPERSON: This bring us to the close of the proceedings at this venue. I would like to extend our appreciation to the legal representatives again for the services rendered to the Committee, in assisting us to come to a just and equitable decision in respect of these applications.

I also want to extend my gratitude to the Mngomezulu family for having been able to attend these hearings all the way from Swaziland and wish them a safe journey back home. I hope it has been explained to them that the Committee on Reparation and Rehabilitation will be making continuous contact with the family for purposes of offering rehabilitation and for purposes of discussing reparation.

As far as the applications are concerned, we are unable to deliver our judgment today, and the decision is therefore reserved. We hope to be able to pronounce our decision in due course.

I thank you all for attending and my special thanks to the translators for the service they have rendered, it is a very difficult service. I thank you.