---------------------------------------------------------------------------CHAIRPERSON: Good morning everybody. Today is the 15th of August 2000, we are continuing with the applications which commenced yesterday. I should apologise that we didn't keep to the time promised, that is nine thirty. We shall complete today even though we would infringe on some of those ...(indistinct), just to make sure that the applicants at least get their fair slice. I would not pronounce those rights at the moment, when the time comes I shall. I apologise on behalf of the Panel, and to the applicants more specifically, and the victims. Thank you.

Mr Visser, I suppose you are ready.

MR VISSER: Chairperson, no, I finished yesterday with Brig Schoon and I informed the Panel that I have no further evidence to lead. I believe it's my learned friend, Mr Hugo, and Mr de Kock that has the floor this morning.

CHAIRPERSON: Thank you, Mr Visser. Mr Hugo, are you ready?

MR HUGO: Yes, thank you, Mr Chairman.

EUGENE ALEXANDER DE KOCK: (sworn states)

ADV BOSMAN: The applicant's properly sworn, Mr Chair.

CHAIRPERSON: Thank you, Advocate Bosman. Mr Hugo.

EXAMINATION BY MR HUGO: Thank you, Mr Chairman.

Mr de Kock, you are the applicant in this matter which is known as the Abduction of Jabulani Sydney Msibi and the application appears in bundle 1, from page 29 to 38, is that correct?

MR DE KOCK: That is correct.

MR HUGO: And then you have also submitted a supplementary affidavit which has been served before the Amnesty Committee upon various occasions, where you dealt with the general background, political motivation and so forth and you request that this also be incorporated as part of your current application.

MR DE KOCK: That is correct.

MR HUGO: Similarly you have also filed a further affidavit which has also been served before this Committee and other Amnesty Committees, which dealt with Vlakplaas, its objectives, the background and any other elaboration regarding Vlakplaas, and you also request that this be incorporated as part of your application.

MR DE KOCK: Yes, that is correct.

MR HUGO: Just for the sake of completion. In the bundle which has been served before this Committee, on page 12 there is a submission which was made by General Johan van der Merwe regarding the role of the SAP in the conflict of the past and you also request that his summary and his version be regarded as part of your application and your submission.

MR DE KOCK: Yes, that is correct.

MR HUGO: Then to return to your application. In your application you did not affix a specific date to this incident, but you would concede that the incident took place in July 1986.

MR DE KOCK: Yes, that is correct.

MR HUGO: What was your rank during the commission of the deed or the act?

MR DE KOCK: Chairperson, I think that I had already completed my Major's course but I had not been appointed yet, I was still a Captain, but I had not been appointed as a Major yet.

MR HUGO: And you were the Commander of C1 or Vlakplaas, as it was known.

MR DE KOCK: Yes, that is correct.

MR HUGO: Just to get to the incident itself, how did you come to hear for the first time of a person by the name of Malaza?

MR DE KOCK: Chairperson, I heard of Malaza for the first time on a Friday afternoon when I was requested by Gen Stadler to go to Daisy, which was the name of a smallholding and I was supposed to meet him there. I met Gen Stadler and two other members of the Intelligence Services there. I cannot recall their names anymore, so I'm not certain of exactly who they were. There was also a black man who was introduced to me as W/O Malaza from the Nelspruit Security Branch.

MR HUGO: And would you tell us what took place then, when you arrived there?

MR DE KOCK: Gen Stadler confronted Mr Malaza with the accusation that he was working for the ANC, he gave him certain facts. I do recall that he showed certain documents and he asked Mr Malaza to give his cooperation, which he did. He realised with the flow of information that existed, that it would not be of any use to resist, and Mr Malaza admitted that he was indeed working for the ANC and that his handler was a man by the name of Msibi. At that point, Mr Malaza had not yet admitted that he had recruited members of the SAP.

MR HUGO: And the interrogation which took place there, was any violence applied during this?

MR DE KOCK: No, not at all. I can only state that Gen Stadler, as he had to do with the Gerhard matter, was not the sort of person who believed in violence, he believed in the soft approach, so to speak.

MR HUGO: And during this discussion, Mr Malaza then admitted that his handler was one, Msibi?

MR DE KOCK: That is correct.

MR HUGO: Was this the first time upon which you came to hear of Msibi?

MR DE KOCK: That is correct.

MR HUGO: And what took place subsequently, after you departed from Daisy?

MR DE KOCK: If I recall correctly, Malaza was then persuaded or convinced that he could restore his honour and that he could save himself from charges of treason if he were to assist us in apprehending Msibi and if we could then cease the situation of the infiltration of the Security Branch and restore order.

MR HUGO: Very well. And after you yourself departed from there, did you have any liaison with Brig Schoon?

MR DE KOCK: Chairperson, I cannot recall that Brig Schoon was at Daisy, I think that I went to Head Office from there, I think Mr van Dyk was still with me, and I spoke to him ...(intervention)

MR HUGO: When you refer to "him", who do you refer to?

MR DE KOCK: With Brig Schoon himself, because he as my Commander, I would have had to receive further instructions from him.

The nature of the discussion and the time of the discussion I can no longer recall, but I had to compile a group rather swiftly. I'm referring to 12 o'clock or 1 o'clock on a Friday afternoon. I had to get the people together and send them over to Swaziland, because we also drove to Swaziland, Brig Stadler and his people would also be travelling to Swaziland that Friday afternoon.

MR HUGO: I think that we might be running ahead too quickly, certainly there must have been planning at some or other point here in Pretoria, you must have received an instruction regarding what exactly you were supposed to go and do. Can you recall this?

MR DE KOCK: Chairperson, very briefly it was said that we had to try to get Msibi out of Swaziland, in other words, we had to cut off that channel of leakage of information.

MR HUGO: At any stage during the initial planning phase in Pretoria at the Head Office, was any consideration given to the elimination or the killing of Mr Msibi?

MR DE KOCK: No, Chairperson.

MR HUGO: And the motivation for the removal, and when I say removal I do not mean killing, but the bringing back out of Swaziland of Mr Msibi, what was the motivation for it, why would it be necessary?

MR DE KOCK: He was an MK member and he was the Head of Military Intelligence at that stage, in Swaziland. If I recall correctly, his specific task was exactly to handle these recruited policemen who were part of the Security Force, that was his specific task, and it was necessary for us to neutralise him as an ANC and MK member.

MR HUGO: And this information regarding Mr Msibi's activities, where did you obtain this information from?

MR DE KOCK: Chairperson, Mr Msibi was a member of the ANC and of MK, which was waging an armed struggle against the RSA.

MR HUGO: But is this information that you received from your seniors, such as Brig Stadler and Brig Schoon, did they give this information to you or did it come from Malaza?

MR DE KOCK: Chairperson, it emanated from the discussion between Malaza and Stadler if I recall correctly, because I sat in on that discussion.

MR HUGO: And then an order was given to you to compile a group.

MR DE KOCK: That is correct.

MR HUGO: And what took place then?

MR DE KOCK: Chairperson, that very same afternoon the group and I travelled to the Oshoek border post and we rendezvoused at the clubhouse of the border post and there members arrived from the Eastern Transvaal Security Branch ...(intervention)

MR HUGO: I beg your pardon, may I interpose just for the sake of completion, the members of Vlakplaas who accompanied you, can you recall their names?

MR DE KOCK: I can recall Mr Nortje and Mr McCarter, Mr van Dyk and then I do have a recollection that Mr Brits was there, Mr Snyders was there and Mr Coetser. I cannot recall, I think there were other members, but I cannot recall all of their names.

MR HUGO: Can you recall whether Mr Vermeulen was there?

MR DE KOCK: Yes, Chairperson, I can place Mr Vermeulen there.

MR HUGO: Whatever the case may be, you arrived at Oshoek and then a further group from the Eastern Transvaal Security Branch arrived there, who were these persons?

MR DE KOCK: Chairperson, it was Mr Greyling, Mr Visser or Major Visser, who was the Head of Nelspruit, W/O Greyling and Malaza. And then Brig Visser also arrived and so too, Brig Stadler and Col Schoon.

MR HUGO: And then, after all of you rendezvoused at the clubhouse, what else took place?

MR DE KOCK: Chairperson, we interrogated Malaza, specifically. I interrogated Malaza as well, in order to determine how he usually established contact with Msibi, how he would enter Swaziland, which vehicle he would use, so that we could follow the same process that he would have followed previously, to establish contact with Mr Msibi and to obtain information from him in order to apprehend Mr Msibi.

MR HUGO: And based upon this information that Malaza gave you, you planned how you would launch the operation.

MR DE KOCK: That is correct. I cannot recall all the details, but it was arranged that Mr Malaza would establish contact with Mr Msibi. I'm not certain from which point he telephoned.

That evening we entered Swaziland, and when I say "we", I mean that it is not only Malaza but it would be Malaza and some of my members, and at approximately 9 o'clock or nine thirty some of my members came to report to me that Mr Malaza had had an accident with his vehicle near the T-junction on the Mbabane detour road and that he had practically written the car off. We had to cancel the operation at that point.

Mr Malaza made arrangements for the following morning, also telephonically, to meet Mr Msibi. It was in an area where there were light industries in Swaziland. It was in Mbabane.

MR HUGO: And after these arrangements were made what else happened?

MR DE KOCK: We were back at the border, I arranged with the vehicle branch of Oshoek that they would retrieve the vehicle that Malaza had written off in Swaziland, the following day. After we made those arrangements, we began to arrange for observation points in Swaziland, near this light industrial area, the vehicle which would be used and the members would take Msibi from his vehicle and put him in the Land Cruiser which would be driving behind Mr Msibi's vehicle, so that he could not go into reverse and try to escape that way.

We co-opted Malaza to seize Mr Msibi as soon as they had pulled him off the road. That gave us more time to get to Msibi, because we believed that he may be armed due to his task and then I myself and another person, I imagine that it was Mr Greyling, but I'm not very certain, had a patrolling vehicle and we had two Uzzis with silencers and if anybody else tried to interfere or intervene, we would be able to stop them, but then it would go over into armed conflict or violence.

MR HUGO: Perhaps I should have asked you earlier, but the crossing of the border, was this at a legal point of crossing, where you reported at the customs control point, or did you cross the border illegally?

MR DE KOCK: Chairperson, we went through a legal border post but the documentation was falsified.

MR HUGO: Very well. And after you had made these preparatory arrangements, did Mr Malaza establish contact with Mr Msibi?

MR DE KOCK: Chairperson, he did. That morning he confirmed the meeting for approximately between nine thirty and 10 o'clock. Mr Malaza confirmed with Mr Msibi that he would meet him near the light industrial area. I and another member of my unit also drove into that area. We parked within sight, but not in a suspicious place and we could observe the meeting between Mr Msibi and Mr Malaza. Mr Malaza then climbed into Mr Msibi's vehicle which was an Alpha vehicle and once they departed, we followed them and informed the seizure people by means of radio, that they were on their way.

MR HUGO: And did the seizure action take place?

MR DE KOCK: Yes. I did not observe it myself because we were approaching and we were the cut-off vehicle if for example, there would be any interference from anybody else. However, when we pulled in at the Land Cruiser, Mr Msibi was already in the back of the Land Cruiser and he was already bound. I think that there was also a balaclava which had been pulled over his head, and we immediately drove the seizure vehicle out of there, as well as the backup vehicle.

There was screaming from people on the left-hand side, or from the western side, who were washing clothes on the banks of the river, who observed the incident. And while the seizure vehicle departed and the backup vehicle departed, I and the person who was with me - I think I still drove Msibi's vehicle. On the way to Oshoek we pulled off the road, where there was a reasonable sheer cliff some distance away from the road and I quickly searched the vehicle to see if there was any documentation or weapons inside.

I searched under the seats and in the cubbyhole I found the handbook for the vehicle and in the boot I also searched and then we pushed the vehicle over the cliff.

MR HUGO: And did you move back over the border to South Africa after that?

MR DE KOCK: Yes, that is correct. On the South African side I first controlled the registration number of the vehicle that we had taken with the computer for stolen vehicles and it had been a stolen vehicle which had been stolen in Transvaal, which was used by Msibi.

I then moved over to the clubhouse. There were already persons there who were busy questioning Msibi. He was already there.

MR HUGO: Can you recall who the persons were who participated in the interrogation of Mr Msibi when you arrived there?

MR DE KOCK: Chairperson, no, it was quite a mixture of events at that point. He was being questioned from three sides. I had a question because I wanted to get to his facility to see what we could retrieve from there and see if we could neutralise any further actions which could have been detrimental to the Police. The Security Branch from Nelspruit wanted to know how many other persons from the branch had been recruited. Gen Stadler wanted to know about other members in the country.

He was pushed around, he was shoved around and there were three or four times that I hit him quite thoroughly with the flat hand. I cannot recall that he bumped his head. I wouldn't say that it didn't happen, but if it did happen, it didn't happen while I was there or I cannot recall it.

He drew a sketch for me, indicating how to get to his house. He was sharing the house with a person. I think he must have been some form of a lodger and he also indicated to me where his room was. Seeing as it was daylight, we could not yet act upon this information.

And later during that day I went with Mr Visser and Mr Greyling, with Mr Malaza, to see whether we could pick up one of Msibi's contact persons. It didn't work, and in the process Mr Malaza escaped. And it was only later that evening, upon two or three occasions that we visited the house. It was somewhat east from the Iselhuni Hotel. Initially we could not enter the house.

Upon two or three occasions there was a vehicle parked in the driveway and when the vehicle wasn't there, we entered the premises. We had very little time at our disposal because we didn't know when the owner would return. We entered the house, we forced the front door open and in Mr Msibi's room we conducted a quick search. We found lots of books there. He was also a painter. There were documents and we put all of this into a cardboard box.

We found something similar to a shoe box with six devices with machinated aluminium covers. These devices were similar to a type which was used by the Irish Republican Army, where it would be connected to a tape recorder, the one set of wires, and then the other set would be connected to the explosive device and then, for example, the cassette recording would issue an initial warning to people to leave the area because a bomb would go off and then about three to five minutes later the device would explode. Similar incidents were taking place in London at that stage.

We took all of this and brought it out of the border post and handed it over to Brig Stadler.

MR HUGO: And when you returned to the border post, and I accept that you then returned to the clubhouse, Mr Msibi was still there?

MR DE KOCK: Yes, Chairperson, he was there, he was being interrogated by Brig Stadler. At that stage that I was there, no assault had taken place on him. Then it was about the planning regarding whether or not we would remain there, if we could still do something in Swaziland, whether we were supposed to return to the Republican side, or to Pretoria.

MR HUGO: When you arrived there, Brig Stadler was busy interrogating him? Did any further interrogation take place by yourself or any of the other members?

MR DE KOCK: No, not at Oshoek, but later at Vlakplaas, yes.

MR HUGO: You've heard some of the evidence that further assaults took place after it was established that he was, or that he had this shoe box with these aluminium wire devices, can you maybe recall if any assaults took place after that?

MR DE KOCK: I will not deny it, I just cannot recall it and I've got no reason to hide it. I just cannot recall it.

MR HUGO: But is it possible that an assault could have taken place afterwards?

MR DE KOCK: Yes, definitely, because this incident disrupted the whole top structure of the Police.

MR HUGO: Concerning the time could you just give us more details. The operation took place at 10 o'clock the morning and when you returned after you got the documentation in Swaziland and arrived at the clubhouse, can you give us a time?

MR DE KOCK: Mr Chairperson, I would say it was approximately 8 or 9 o'clock that evening, because firstly, Greyling and Visser tried to find Malaza, as difficult as it was in Manzini with the circumstances there, and in the second instance we couldn't get into the house, we couldn't immediately go in to penetrate and search the house, so I spent the whole day in Swaziland.

MR HUGO: And after he was questioned by Brig Stadler, what was the decision?

MR DE KOCK: The decision was made by Brig Stadler and Visser and Schoon that we have to move back to Pretoria, in order for further interrogations to take place and where we can sort out the documentation. That evening we left, I would say it was approximately 11 or 12 o'clock that evening.

MR HUGO: Can you recall in which vehicle Mr Malaza was transported from Oshoek to Pretoria?

MR DE KOCK: Mr Chairperson, if I recall correctly, it was either in the Land Cruiser or the kombi. It was Mr Msibi, it was either the Land Cruiser or the kombi, because I was driving in the vehicle that was in front.

We arrived at Vlakplaas in the early morning. It was approximately 5 or 6 o'clock the morning. Brig Stadler also arrived, I do not know if he first went home or to the office, but he also arrived there later that morning. Some of the other members of the Intelligence Service were with him and at a certain stage I and Brig Schoon and one or two of the other members dealt with Mr Msibi in a hard-handed way. I hit him and he hit the ground. I think I gave him nine to twelve blows and some of the other members assaulted him with the open hand, but immediately afterwards Brig Stadler told some of the members we must stop assaulting him, he will deal with Mr Msibi from then on. We immediately stopped and Brig Stadler took over.

MR HUGO: Concerning the initial planning of this operation, was the idea initially or from the start that he had to be abducted and then to be applied in order to provide information, or was the idea to bring him out and simply to neutralise him?

MR DE KOCK: No, Mr Chairperson, we had to bring him out, he had to provide further information. I did not have any say in that because my task was his abduction. His neutralising we can put it very broadly, it could mean death or you could simply that you can compromise a person in such a way that he cannot operate anymore, which then also happened with Mr Msibi.

MR HUGO: Brig Stadler then told you that you have to stop assaulting the person, that he will deal with it further, what happened then?

MR DE KOCK: Mr Chairperson, what he said is that he will give further instructions at a later stage, we must ensure that this person is washed clean. We did that, we gave him the opportunity to wash his clothes, he took a shower and we gave one of our overalls to him, the overalls we had at Vlakplaas, and we provided him with a place to sleep. We cuffed him to a steel bed, bed's that are used in all State departments or issued in State departments. He had a mattress, he had a Defence Force sleeping bag. It was very cold and I cut a hole at the bottom of his sleeping bag in order for the leg-irons to come through and we cuffed around the framework of the bed and the other one was tied to his leg, or cuffed to his leg. He had to wake us if he wanted to go to the toilet. There were guards that rotated every two hours, he wouldn't have been able to escape with a bed connected to his leg.

MR HUGO: He then spent that evening there at Vlakplaas?

MR DE KOCK: Yes. The next morning, approximately 9 o'clock, it was between 8 and 9 o'clock, I received a call from Stadler saying that Defence Force helicopter will land at Vlakplaas and that Kallie Steyn, Col Kallie Steyn from Military Intelligence will be there and that I must then personally hand over Msibi to him.

The two pilots did not get out and Commandant Kallie Steyn got out. I accompanied him to the helicopter and I then asked him later to just give me back the leg-irons and the handcuffs. Mr Msibi was then transported to a place called Fontana. I understand it is towards Pyramids on the Pietersburg road. I do not know where it is.

MR HUGO: And then after he was transported in the helicopter, did you have any further contact with Mr Msibi?

MR DE KOCK: No, Mr Chairperson, I never had contact with him. I do know however, that he was detained, but we were not told and I also did not enquire. At a later stage in a discussion with Gen Buchner, he mentioned to me, and there were also other reason for this, that Mr Msibi was very stubborn, that he did not want to cooperate with the Police, he did not want to work with them, he did not want to accept any money from them and that all that Mr Msibi took was a tracksuit, because his clothes were in a very bad condition. He didn't want to accept shoes, he'd rather prefer to walk barefeet.

It was also round the fact that Gen Buchner mentioned to me that they are going to release Msibi and that I must warn the askaris working in Soweto, that this man is now free, they must not arrest or shoot him, that he's not for us but he's also not against us. He was neutral at that stage, he was neutralised.

MR HUGO: Then you make mention in your application of a certain friction between Gen van der Merwe and Dr Neil Barnard, can you just tell the Honourable Committee how you came to hear about this.

MR DE KOCK: Mr Chairperson, I believe it came from Gen Stadler, because he dealt with the whole case. The information concerning the leakage came from National Intelligence and National Intelligence Services, apparently, from what I heard from Stadler, there was some kind of deal that they will not act, that this case of Malaza will be dealt with and that at later stage he will be moved out because the National Intelligence Service was scared that their source that receives this information from Msibi, or works with this information, will be made public. That somebody working above Msibi, somewhere in the line from Swaziland to Maputo and from there to Zambia, received these reports. So somebody above Msibi handed over the documentation which Malaza handed over, to the Intelligence Services and there was then a danger that this source can be made known or be exposed and that was where the friction came from.

MR HUGO: There was a perception with you that the higher ranks within the Security Police was aware of your participation and of the operation?

MR DE KOCK: Yes, there's no doubt about it.

MR HUGO: Were any steps taken against you?

MR DE KOCK: No.

MR HUGO: Concerning Mr Malaza, did you make any enquiries about what happened to him after he escaped in Swaziland?

MR DE KOCK: Mr Chairperson, what I do know is that he, I don't know by means of which context, but we heard about another contact, a man by the name of Sam who worked at the railways, who was part of the network, and he went to that person and from then on arrangements were made and he went to Maputo. From the South African side at Nelspruit, in order to explain Malaza's disappearance, a dossier was opened and that he awoled from the force.

MR HUGO: But as far as you were concerned, Mr Malaza aligned himself with the ANC again. ... (transcriber's interpre-tation)

MR DE KOCK: Yes, definitely, Chairperson.

MR HUGO: You've explained the reason for your actions, can you just explain to us what your political motive was for this operation and why you took part in it.

MR DE KOCK: It was in order to prevent armed MK members to come into the country, to block them and with the ability that they had at that stage to get information from the South African Police, and it was also directly in line with the struggle of the past, where the National Party, the Defence Force and the South African Police acted against the ANC and then any of the ANC forces.

I would just like to mention here that at Oshoek, in discussions with Malaza, the names did come up of the two policemen in Pretoria who provided information to Malaza, who then gave it to Msibi. That is just for clarity's sake.

MR HUGO: What perception did the presence of the senior officers create with you, both with the initial interrogation at Daisy and later also at Oshoek?

MR DE KOCK: Chairperson, it was not a district crisis, it was a national crisis. At that stage we were not quite sure how far the Intelligence Service had been penetrated with the exposure that Malaza made, in that the father of one of the member's of the Pretoria branch worked at the Head Office. He was a Warrant Officer and he had access to all documentation that moved between the floors as well as top secret documentation that even I did not have access to. It was seen as a national crisis.

MR HUGO: Was there any doubt with you that this was a well planned operation, sanctioned at the highest level?

MR DE KOCK: Yes.

MR HUGO: If you say yes, maybe I did not put the question in the right way. You believed that that was what was planned and it was sanctioned at the highest level?

MR DE KOCK: Yes, Chairperson.

MR HUGO: I think just for completion and to prevent further cross-examination at a later stage, I would like to refer to Exhibit A concerning the relevant facts that maybe you can comment on. Mr Msibi says the following, and I will just read a few sections of it and I would like you to comment on it. Mr Msibi says:

What is your recollection concerning his version, as far as this aspect is concerned?

MR DE KOCK: That is correct, especially concerning the Malaza situation, because that was discussed. I would just like to add this, the little bit of information that we could gather concerning Mr Msibi was that he was very fit, he played squash at the Royal Swazi Spa, he also belonged to the club. He was not a drinker and he did not smoke and the people I chose to grab were also from the same calibre, except that they drank.

MR HUGO: Then he says:

What do you say to that?

MR DE KOCK: Yes, it's also correct, except for the weapons. They did not have weapons, they did have radios with them.

MR HUGO: Then he says the following:

What is your reaction to that?

MR DE KOCK: Mr Chairperson, no, not on the ground, some of the members later told me that they grabbed him so hard and so fast, or threw him into the back of the Land Cruiser, that he fell on the back seat and not in the boot area. They threw him in so hard that he fell on top of the back seat and they had to cuff him while they were driving. It was something that happened very quickly, it was literally a few seconds.

ADV BOSMAN: Can I just come in here, just to get clarity.

Mr de Kock, I understood from you that you only observed after Mr Msibi was in the vehicle, in the Land Cruiser, just for clarity's sake, what you are saying now is that this is so or not, this is about what you heard, it was not your own observation.

MR DE KOCK: My observation was that he was already in the vehicle when I got there, but I was very close to them, or close to Msibi's vehicle. We were more worried about the Swaziland Police who patrolled that road and that was our worry or concern at that stage. It was mentioned at a later stage that he was thrown into the vehicle, yes.

ADV BOSMAN: I would just like to know, the comment that you just made now, the placing of Msibi in the vehicle is not your own observation, this is what was reported to you?

MR DE KOCK: Yes, that is correct.

MR HUGO: Then the following sentence:

and you have already testified about that and you confirm it.

MR DE KOCK: That's correct, Chairperson.

MR HUGO: Then he says:

Is that correct?

MR DE KOCK: Mr Chairperson, yes, that is correct, they did go to Oshoek.

MR HUGO: Except your evidence was that it was a Land Cruiser, but it's maybe just his perception.

MR DE KOCK: Yes, that would be his perception, Chairperson.

MR HUGO:

You did not observe that?

MR DE KOCK: No, Chairperson.

MR HUGO: Then he says:

Can you comment on that?

MR DE KOCK: Chairperson, I can only comment on the part where I was involved, where I assaulted him. I do not know if he was assaulted before I arrived there.

MR HUGO: Yes, that is exactly the next paragraph that I would to read to you for your comment:

What is your comment about this specific part?

MR DE KOCK: Mr Chairperson, I cannot say that he was not beaten with a belt, he was not beaten in my presence with a belt, but at Vlakplaas I personally beat him with a belt.

MR HUGO: Then he deals with the aspect of which you're already testified, that you went to his house. And the following aspect that I would like to read to you is when he says:

What do you say of that?

MR DE KOCK: No, Mr Chairperson, he was never unconscious, and concerning the brandy, there was no alcohol or liquor and I've already testified about that. I had a strict, an arrangement that no alcohol is used 24 to 48 hours before an operation. If he had five glasses of brandy he would not have been able to make sense, we wouldn't have been able to get any information out of him, but I know that no alcohol or liquor was forced down his throat.

MR HUGO: Very well. And then he says:

Can you comment on that?

MR DE KOCK: We did go to Pretoria, and I believe that he was blindfolded, yes.

MR HUGO:

What do you say about that?

MR DE KOCK: Chairperson, I hit him with a belt at Vlakplaas. The hitting of the head against the wall, I cannot say. I do not say it didn't happen, but I really cannot recall it, and I would have told you. If I broke his arm I would have said it.

MR HUGO: But in your participation he is in essence correct, that you beat him with a fist and slapped him?

MR DE KOCK: Yes, at Oshoek I did slap him and I did slap him very hard. At Vlakplaas I beat him with a belt.

MR HUGO: One last aspect that I want to deal with.

What do you say about that?

MR DE KOCK: No, Mr Chairperson, he was never burnt and his hair was also not burnt or no attempt was made to light his hair. Gen Stadler's instructions were very clear and we stuck to that. The tyre round his neck, it was my unit's method. And we would know about that by now, the necklace and the lighting of it, that is specifically a specific person's trademark, but that's not mine.

MR HUGO: You then ask this Honourable Committee to grant amnesty for the illegal crossing of the border, abduction and so forth, in respect with all the offences committed and which is covered by the evidence which you now gave, is that correct? ...(transcriber's interpretation)

MR DE KOCK: That is correct, yes.

MR HUGO: Thank you, Mr Chairman, that's the evidence.

CHAIRPERSON: Thank you, Mr Hugo. Mr Visser, any cross-examination?

CROSS-EXAMINATION BY MR VISSER: Chairperson, yes, if it may please you.

Mr de Kock, this first aspect is not really a question to you, but it is because I put something in the wrong way, concerning Gen van der Merwe. Yesterday I was under the impression that Gen van der Merwe, the Security Commander, was not the Security Head in '86, I was wrong, he was indeed the Security Head at the beginning of '86. I spoke to Gen van der Merwe and he basically agreed with what you said today, so I will not repeat it, and it is indeed so that there was a lot of problems because National Intelligence had a source and with information which they did not hand over to CIC or to other Committees and this is where this big problem came from. You agree with that apparently?

MR DE KOCK: Yes, Chairperson.

MR VISSER: I'd just like to ask you one thing, and you must excuse me, I do not know if it is an explosive expert or what you call yourselves, but are you an expert as far as explosives and so forth are concerned? ...(transcriber's interpretation)

MR DE KOCK: Yes, Chairperson.

MR VISSER: Can you positively identify the apparatus which you found in the shoe box as a mechanism which is used to set off bombs? Which you found at Msibi's room. ...(transcriber's interpretation)

MR DE KOCK: It is correct, Mr Chairperson, because we went as far as to send those devices to our explosive unit or section, in order for them to inform all the other explosive units in the country and we did circulate a photograph of that device.

MR VISSER: The reason for this was because this was a new mechanism or device which has not been used before and that you had not seen in the struggle before.

MR DE KOCK: That is correct, yes.

MR VISSER: And that was indeed mechanisms which was used in the British Isles, with their explosives there?

MR DE KOCK: Yes, Chairperson.

MR VISSER: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Visser. I suppose I should be gender sensitive and hear a lady's voice. Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Thank you. Mr Cornelius?

CROSS-EXAMINATION BY MR CORNELIUS: Thank you, Mr Chair.

Mr de Kock, you said that Mr Vermeulen was a footsoldier.

MR DE KOCK: Yes.

MR CORNELIUS: And there's no doubt from the footsoldier's side that there was authorisation from a higher level?

MR DE KOCK: Yes, they just followed their instructions.

MR CORNELIUS: And in the presence of all the Brigadiers and higher ranks, especially with the assault, it was also very clear that they did give authorisation for all of this?

MR DE KOCK: That is correct.

MR CORNELIUS: As well as yourself?

MR DE KOCK: Yes.

MR CORNELIUS: And what is very important that has not been put in this hearing, is that everybody worked on a need-to-know basis.

MR DE KOCK: That is correct.

MR CORNELIUS: In other words, for Vermeulen, nobody would have told him all the details concerning Malaza and Msibi, he just followed instructions?

MR DE KOCK: Yes, Mr Chairperson, it was so sensitive that we did not try to spread the information.

MR CORNELIUS: And there were also no disciplinary actions taken against Mr Vermeulen?

MR DE KOCK: No, Chairperson.

MR CORNELIUS: And then lastly, could you have been mistaken when you made the statement that Brits was present?

MR DE KOCK: It could be, Mr Chairperson, but somewhere my recollection is that his face came up somewhere.

MR CORNELIUS: There were various operations that you executed in Swaziland, so you could be mistaken, is that correct?

MR DE KOCK: Yes.

MR CORNELIUS: Thank you, Mr Chair.

CHAIRPERSON: Thank you, Mr Cornelius. Mr Prinsloo?

MR PRINSLOO: No questions, thank you Mr Chairperson.

CHAIRPERSON: Mr Nel?

CROSS-EXAMINATION BY MR NEL: Thank you, Mr Chairperson.

Mr de Kock, just one aspect. Mr Msibi's affidavit or statement where he says that the white men were in plain clothes and armed with guns, you said that they did not have weapons.

MR DE KOCK: Mr Chairperson, not as far as I can recall. I know the two Uzzis were with me and the driver.

MR NEL: The reason why I'm asking this is, the instructions from Mr McCarter, he says he can recall, and he says it in his application, that it was a specific order that those who drove in the Land Cruiser were not supposed to be armed, for various reasons.

MR DE KOCK: Yes, Mr Chairperson, I did not want them to be pulled off with weapons in the car and for their own protection I would have the weapons with me in the car.

MR NEL: That is exactly what Mr McCarter said. Thank you, Mr de Kock.

CHAIRPERSON: Thank you, Mr Nel. Mr Lamey?

CROSS-EXAMINATION BY MR LAMEY: Thank you, Chairperson.

Mr de Kock, just one or two questions. The subordinate members knew before the operation, or at the stage when the instruction was given and they became aware of what was to happen, to get Msibi out of Swaziland, they knew that this instruction came from Head Office and not only from you. ...(transcriber's interpretation)

MR DE KOCK: Yes, that's correct, Chairperson, so much so that Head Office actually drove with us to Swaziland.

MR LAMEY: And then another aspect. According to yourself and the people you mention who were at Oshoek at a stage, according to your recollection, it must be more than the eight persons that I think Brig Visser mentioned. That is according to his recollection, but if you count all of them it was indeed more than ten.

MR DE KOCK: Yes, it would have been more than ten.

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

CHAIRPERSON: Thank you, Mr Lamey. Mr Makondo?

CROSS-EXAMINATION BY MR MAKONDO: Thank you, Chairperson.

Starting with Buchner, Mr de Kock, when did you meet Mr Buchner?

MR DE KOCK: Mr Chairperson, I saw him the first time in 1968, in Rhodesia at the Victoria Falls.

MR MAKONDO: Now I'm referring to - you said in your testimony that you met him later, when he reported about Mr Msibi.

MR DE KOCK: Yes Chairperson, I do not know if I made enquiries or if he called me in, but we did discuss this matter.

MR MAKONDO: It was after how long after you had met Mr Msibi?

MR DE KOCK: Chairperson, I cannot give you a date because I did not work with it and I was busy with other operations, this one just passed me by.

MR MAKONDO: You say that they gave you instructions to warn the askaris not to kill him.

MR DE KOCK: He just mentioned to me that this man is going to be released, because there was a danger that if some of my askaris see him in Soweto, or in any other place and they do not know that he is now back on the Republic, because there were no black members on this operation, except for Malaza, then they can make a mistake, try and arrest him and he could try to get away and they may shoot him.

MR MAKONDO: What did you understand by him when he said he was neutralised?

MR DE KOCK: Mr Chairperson, the way in which I understand it is that Mr Msibi could not go to the ANC, because he would immediately have been taken to a camp, a detention camp. Within the Republic he compromised himself when he testified in this case, which is ironic because he did not provide the information concerning the two policemen at the Security Branch, Malaza was the person who did it, but because of the fact that he was going to testify against these two people, that compromised him concerning ANC activities. In other words, he found himself in a position, he cannot go back to the ANC, he's in the country and he cannot act against the Security Forces, then he will go back to jail.

MR MAKONDO: When you say he did not give information, what do you mean?

MR DE KOCK: Mr Chairperson, the information around the two policemen from the Security Branch here in Pretoria, came from Malaza. I'm not saying that at a later stage he confirmed it, I did not work with that part of the interrogation.

MR MAKONDO: You said you went back to the abduction area, the time, you said it had been around 10a.m., which is somehow not far from what he says, he talks of nine thirty or so, now you said you spent the whole day in Swaziland, at that time was he with other members at the club at Oshoek?

MR DE KOCK: Yes, Chairperson.

MR MAKONDO: Would that include all the seniors who were part of that operation?

MR DE KOCK: Yes, Chairperson, all the senior members stayed there on a permanent basis.

MR MAKONDO: After he had given you - when exactly, after his abduction, when did he give you the information about his house? Was it at the clubhouse or somewhere along the way?

MR DE KOCK: Chairperson, when he got we also came out and that is where I participate in the assault.

MR MAKONDO: So he gave you the information whilst you were still in Swaziland, when you were in the clubhouse?

MR DE KOCK: That is correct, yes.

MR MAKONDO: And you said you forced the door of his room open.

MR DE KOCK: No, his door was not locked, but the front door of the house was locked.

MR MAKONDO: So you forced the first door but you went in, you just opened it.

MR DE KOCK: Yes, Chairperson.

MR MAKONDO: During your search, can you perhaps describe your search, how systematic it was.

MR DE KOCK: Mr Chairperson, in the way in which we usually search a place, it was done very quickly, it was very superficial, because we do not know who the other person or persons are who are staying there or when they will come back, so we tried to go in as quick as possible, gather what we can and immediately leave. The sorting out we can do later, just get what you can now and leave.

MR MAKONDO: I'm asking you because my instructions are that there were a number of his properties that went missing after the search.

MR DE KOCK: Chairperson, no, as I said there were documents, books, and we found those devices, we did not take anything else. We did not have any reason to take anything else.

CHAIRPERSON: What are your instructions in respect of the property? Probably if we could have it on record.

MR MAKONDO: Thank you, Chair. I'm told that there was a TV missing, a video machine, money which he kept for his role, and some of his clothing and also that there was some damaged that was caused in the house generally.

CHAIRPERSON: Was there any damage to the property, other than the front door being forced open, Mr de Kock?

MR DE KOCK: No, Chairperson.

CHAIRPERSON: You may proceed, Mr Makondo.

MR MAKONDO: Thank you, Chair.

ADV SANDI: Sorry, just one thing, Mr Makondo. How much was involved? You say there was also some money that was kept for his role, how much?

MR MAKONDO: I was told, Chairperson, it was around 5 000. Thank you.

Mr de Kock, you talked of the torturing that Mr Msibi mentioned here in his affidavit, that it was not your trademark, do you know whose trademark it is?

MR DE KOCK: The necklace method is not a Vlakplaas trademark. We have already read and heard about whose trademark it is, it's a person who was creating unrest in the neighbourhoods or residential areas. I've already testified that we either bury them or we blew them up, but we never used the necklace method, or burning necklace or tyres.

CHAIRPERSON: And the use of cigarette butts?

MR DE KOCK: No, Chairperson, definitely not.

ADV SANDI: Just for my own clarity, Mr de Kock, if you say you were away from the clubhouse for the whole day, you were in Swaziland, I mean surely you cannot categorically say certain things could never have happened? You were not there for the whole day.

MR DE KOCK: No, I cannot say that, I can speak regarding what I would have been there for, but upon my return from Swaziland, I did not see a drunk or an unconscious person.

ADV SANDI: Yes, but what time did you come back from Swaziland that evening?

MR DE KOCK: Chairperson, I would say that it was approximately 9 o'clock, 8 o'clock or 9 o'clock.

ADV SANDI: What I'm trying to say to you is, you cannot say there's simply no way this and that could have happened, because it was not part of our way of doing things. I mean, you do have people doing things which are not part of your trademark. You cannot exclude that possibility here, can you? You can't, you weren't there for the whole day.

MR DE KOCK: Chairperson, if I've understood correctly, it says that this happened at Vlakplaas, this burning, I'm not certain.

ADV SANDI: Thank you, Mr Makondo.

MR MAKONDO: Thank you, Chair.

After he left Vlakplaas, do you know where he went, perhaps where he was kept?

MR DE KOCK: No, Chairperson, I accompanied him to the helicopter, I assisted him in embarking and as I've stated, Col Kallie Steyn told me that they were going to Fontana, which was some or other military facility somewhere to the southern side of the Pietersburg highway, but I myself had not yet been there.

MR MAKONDO: After his release, do you know who was monitoring or watching his moves?

MR DE KOCK: No, Chairperson. I would accept, or I could accept, and this is merely my perspective, that the Soweto Security Branch would have been informed that he was in their area and that he would have come up every now and again for attention, in order to determine whether or not he was neutral.

MR MAKONDO: And his killing, when did you learn about it?

MR DE KOCK: Chairperson, security reports indicated that he was shot and then in one or two newspapers, I think the one was the City Press and the other was the Sowetan, but it was one of the newspapers which was aimed more at black readership, I read that he was shot, but I also read that someone was arrested, and I remembered yesterday that this was not mentioned, but that somebody was indeed taken into custody regarding his shooting. This is according to the newspaper, but I didn't see it in the security report.

MR MAKONDO: In the report, the security report that you gathered, your own interpretation, would you say this was still the force's different departments' action, or would you say it's something outside that?

MR DE KOCK: No, Chairperson, what struck me was the total clinisism of the entire shooting. It is difficult to explain it to you if you didn't move in those circles, it was completely clean and silent. With any sort of work or operation a fingerprint would be left, as the people say, or the operatives would sometimes use a regular kind of method, but in this case he was shot and that was that, there was nothing further from anywhere. That is what struck me, the total clinisism of it all, the fact that it was such a clinical event.

MR MAKONDO: Thank you, Chair, nothing more thanks.

CHAIRPERSON: I think you are being given instructions, wouldn't you take the instructions first? I would suggest we have a short adjournment and take fuller instructions, I think it's only fair that ...(inaudible) to your client fully.

MR MAKONDO: Thanks Chairperson.

EUGENE ALEXANDER DE KOCK: (s.u.o.)

CHAIRPERSON: Mr Makondo, are you proceeding with your cross-examination after taking instructions?

MR MAKONDO: No, Chairperson, thank you, that will be all. Thank you for the time, Chairperson.

CHAIRPERSON: Thank you. Ms Patel?

CROSS-EXAMINATION BY MS PATEL: Thank you, Honourable Chairperson.

Mr de Kock, just one or two things I'd like clarity on. At the time that Mr Msibi gave you the information as to his address, did this take place at the Oshoek clubhouse?

MR DE KOCK: Yes, Chairperson.

MS PATEL: Did he hand over the information voluntarily or was there a measure of assault involved at that stage?

MR DE KOCK: At first I slapped him and subsequently he drew a sketch for me, indicating how to get to the premises, because it wasn't very easy to explain how to get there, one had to view the directions on a sketch.

MS PATEL: Can you recall who was present at that time?

MR DE KOCK: When we searched the house?

MS PATEL: No, no, at the time when he gave over the information.

MR DE KOCK: Chairperson, I was there, as well as Gert Visser, the senior officers, I could place Col Visser there, I cannot recall whether Brig Stadler was there, I do not have that recollection. Schoon wasn't there, because I recall that he was anxious to notify Head Office that we had acted in Swaziland, because this also related to other persons who had to be notified. For example, Ministers and so forth.

MS PATEL: Okay. And did Brig Schoon return subsequently, when you returned back from Swaziland from the search? Was he there when you came back?

MR DE KOCK: Yes, Chairperson.

MS PATEL: Okay. Thank you, Honourable Chairperson.

CHAIRPERSON: Thank you, Ms Patel. Mr Hugo, we will adopt the same procedure, allow the Panel to ask questions that your re-exam, if any, should be completed.

ADV BOSMAN: Thank you, Chairperson.

Mr de Kock, at what time would you say did Mr Msibi arrive at the clubhouse and how much elapsed from that point onwards to your return?

MR DE KOCK: Chairperson, I would say approximately an hour, anything to and beyond an hour - from his abduction to the point that we got him to the clubhouse?

ADV BOSMAN: No, from his delivery at the clubhouse, so to speak, until you arrived there later that evening.

MR DE KOCK: Chairperson, I think it would have been within half an hour to an hour.

ADV BOSMAN: You don't understand me.

MR DE KOCK: I beg your pardon.

ADV BOSMAN: You heard the evidence yesterday that he was interrogated for approximately three hours in total, you heard that?

MR DE KOCK: Yes.

ADV BOSMAN: From your evidence it would appear as if this interrogation must have taken several hours.

MR DE KOCK: No, Chairperson, I wanted operational information from him and it was urgent information.

ADV BOSMAN: At what time did you interrogate him, approximately?

MR DE KOCK: I would have said that it would be between half an hour to an hour from his arrival at the clubhouse, because I first had to get rid of Msibi's vehicle.

ADV BOSMAN: You don't have to give me a specific time, but at what time, approximately, did this interrogation take place? You could allow for an hour on either side.

MR DE KOCK: Chairperson, I would say it was in the vicinity of between half past eleven and half past twelve.

ADV BOSMAN: And it is your evidence that you returned at 8 or 9 o'clock that evening.

MR DE KOCK: Yes, Chairperson.

ADV BOSMAN: In other words, if my calculations are correct, he spent 10 to 11 hours in the clubhouse?

MR DE KOCK: Yes, that is correct.

ADV BOSMAN: Could you assist us in any way, even if it is hearsay, regarding what took place in those 10 to 11 hours, was it ever discussed?

MR DE KOCK: No, Chairperson, but I believe that he would have been interrogated, because it wouldn't help us to have him and not interrogate him, especially in light of the urgency of the situation, so I can only accept that he must have been further interrogated.

ADV BOSMAN: You didn't exchange notes regarding what information was provided by him during that period, or what people did in order to attempt to obtain such information?

MR DE KOCK: No, Chairperson.

ADV BOSMAN: The last time that you had contact with him at Oshoek, in the clubhouse, were you relatively close to him?

MR DE KOCK: Yes, because I slapped him, so I was next to him.

ADV BOSMAN: Could you see what his general condition was, could you notice whether or not he was injured?

MR DE KOCK: He was in shock, this is something that I have observed many times in my life, I have 24 years of counter-insurgency at my disposal.

ADV BOSMAN: I'm more interested in his physical condition.

MR DE KOCK: His clothes were rumpled and he was in a state of shock, as I've said, but he didn't show any external injuries such as blood on his face, there was no evidence that he was bleeding anywhere on his body.

ADV BOSMAN: When you arrived at Vlakplaas, did he complain to you about any injuries that he may have sustained, did he request any treatment?

MR DE KOCK: No.

ADV BOSMAN: Do you think he would have done so, you observed him?

MR DE KOCK: Chairperson, he was the sort of person who would deal with the situation with dignity, he was one of the very few people who I met that dealt with things in such a way.

ADV BOSMAN: Very well, thank you.

CHAIRPERSON: Advocate Sandi?

ADV SANDI: Just one question from me, Mr Chairman, thank you.

Mr de Kock, is it the position here that you were the only person around who assaulted the deceased before he gave information regarding where he stayed in Swaziland, were you the only one?

MR DE KOCK: Chairperson, I think that some of the other guys also hit him, but I cannot recall who it was, because I was completely focused on the situation. We didn't know exactly what was there and one expected that there may be other things, such as radio devices or a copying device, cameras, so these were the things that we needed quite urgently. I'm not trying to protect anybody, if I could recall I would tell you.

ADV SANDI: So your answer is you were not the only one?

MR DE KOCK: I was not the only one.

ADV SANDI: Thank you. Thank you, Chair.

CHAIRPERSON: Mr de Kock, I just want clarity about the actual place of abduction. You said the road between the border and Mbabane, which is very short, there's a lot of traffic by the police.

MR DE KOCK: That is correct.

CHAIRPERSON: When you proceed, I think next to the garage you would take the turn-off that goes down and takes you to probably Swaziland Spa and all that, but that would be next to the valley?

MR DE KOCK: That is correct, Chairperson. If you drive from Oshoek and just before you enter Mbabane, there is a detour around through the valley, which leads to the various hotels and it was on that detour road that we abducted him.

CHAIRPERSON: Thank you, Mr de Kock. Mr Hugo, any re-exam?

MR HUGO: No re-examination, thank you Mr Chairman.

MR HUGO: Mr Chairman, sorry, I've just been instructed that Mr de Kock has a request, he just wants to address the family in respect of Mr Msibi. If you grant us that indulgence.

CHAIRPERSON: Oh certainly, you may go ahead, Mr de Kock.

MR DE KOCK: I would just like to know where the young man is who was here yesterday, is he here? Very well, thank you Chair.

CHAIRPERSON: Mr Makondo could be of assistance there.

MR MAKONDO: Chairperson, the one who was here yesterday is not here, but there is the youngest brother to Sydney, he's seated there in the crowd, Chairperson. I just wanted to indicate to him that he's here somewhere. Thank you.

MR DE KOCK ADDRESSES FAMILY OF DECEASED: Chairperson, I would just like to say to the family that I have come a long way in this sort of work, and this isn't about sentimental values or anything else, but it would be malicious and petty and dishonest of me to not to tell of certain observations that I made in that brief time and which I found in the person that Sydney was. And I just want to tell the family that Sydney Msibi was not an askari, he was also not a traitor. And I believe that due to the background that I have accumulated in guerrilla warfare over 24 years, I have the capacity to say that I found a man who was the personification of courage, of backbone and strength, and this man was not a defector, he had to be abducted. And what struck me, and this is something that many of us who lived by the sword and who fell by the sword knew, it's not about how good a man is when things are good, it is what he is like when things are bad. He was the sort of man who was good when things were bad and exceptionally bad.

And I just want to tell you that his dignity and his integrity, his faith and his loyalty in the ANC, remained unscathed consistently and that is how he died. He was he sort of man who I, at any time, would have wanted in my life with me at my darkest hours. That is the kind of person I would have wanted with me. In my limited capacity as a human being, he has all the respect that I could muster and I believe that if any of my members have the courage of their conviction and if they would speak the truth, they would underwrite what I have just said, that he is worthy of respect of the party and the people whom he served at that time.

Within my limited capacity as a human being and my even more limited capacity due to my special circumstances, I would like to say that regarding me, he was one of the ANC's and the country's most loyal supporters. He stubbornly refused that anything should break him or his loyalty, and I would just like to tell the family that. Thank you.

CHAIRPERSON: Thank you very much, Mr de Kock, for giving us a background of the man we are about in this application. The Committee, and I hope I'm speaking or expressing the sentiments of the Committee and to a limited extent, that of the family, that we know what kind of man you were dealing with and that he would have been a credit, as you say, that you would have also taken him under your services, that at least we know now what Mr Msibi, what his personality was and what his loyalties were to whoever he belonged to. Thank you very much. You are excused.

CHAIRPERSON: Are you leading any further evidence, Mr Hugo?

MR HUGO: No further evidence, thank you Mr Chairman.

CHAIRPERSON: Thank you, Mr Hugo. Who's taking the bait?

MR NEL: Thank you, Mr Chairman, I like that. I've discussed it with my colleagues and they have no problem if I call Mr McCarter, he's from Port Shepstone and would like to drive back today, which is quite a long way, if we could dispose of his evidence now. As it pleases you, Mr Chairman.

CHAIRPERSON: No, certainly.

MR NEL: Mr McCarter will be testifying in English.

--------------------------------------------------------------------------FRANK McCARTER: (sworn states)

CHAIRPERSON: Thank you very much, you may be seated. Mr Nel?

EXAMINATION BY MR NEL: Thank you, Mr Chairman. Mr Chairman, before I proceed with the application, I've just been instructed by Mr McCarter, whilst Mr de Kock was speaking about Mr Msibi, that he would also like to tell the family that he agrees in every respect with Mr de Kock about what he said about Mr Msibi.

Mr McCarter, if we can turn to your application. You're an amnesty applicant in this matter and your application is found in bundle 2, pages 1 to 9 is the initial application, and then on page 10 is an additional affidavit which is transcribed from, or typed out from the hand-written one on page 10 and 11, is that correct?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: You also refer in your application to the submissions made by the erstwhile Commissioner of Police, Gen van der Merwe, and do you ask this Committee to incorporate that as part of your evidence?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Mr McCarter, you deal with your political beliefs etcetera, in your application, do you confirm the correctness thereof and in fact, the entire application as it lies before us?

MR McCARTER: I do, Mr Chairman.

MR NEL: You were, at the time of this operation, under the command of Mr de Kock at Vlakplaas, is that correct?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: And do you agree with the evidence that Mr de Kock has given here, regarding the particular incident of the abduction of Mr Msibi?

MR McCARTER: I do, Mr Chairman.

MR NEL: Now if we may turn to page 11. In your application you mentioned the name Twala, could you just clarify where the mistake, if it is a mistake, came into the papers?

MR McCARTER: Mr Chairman, I stand to be corrected, but I recall correctly, Twala was the name that he used in Swaziland.

MR NEL: But we know, and it's common cause, that the person that you abducted was Mr Msibi.

MR McCARTER: That's correct, Mr Chairman.

MR NEL: So we are talking about the same incident and the same person?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Mr McCarter, is it correct that you were a part of the group of persons who entered Swaziland, you were in fact in the Land Cruiser and ultimately brought Mr Msibi out of Swaziland in the same Land Cruiser?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Could you perhaps - I think you're the first person who is actually going to testify about the actual taking of Mr Msibi, could you give us a brief account of exactly what happened there.

MR McCARTER: Mr Chairman, we were standing by on the, quite close to the place where we had arranged to snatch Mr Msibi, as Mr de Kock said, it was just past the first turn-off to Mbabane, coming from Oshoek border post. On the right-hand side of the road there was a small inlet where Malaza was supposed to have taken Mr Msibi, and we received a radio message from Mr de Kock that the car was on its way. If I remember correctly, there were two vehicle, two of our vehicles involved in the snatching of Mr Msibi, and when the vehicle parked in the inlet, that's the Alpha of Mr Msibi, we boxed it in and Mr Msibi realised immediately that there was a problem, because he noticed this gang of burly white men dashing towards him and he tried to get out the car.

It had been pre-arranged by Mr de Kock that none of us would carry weapons and that certain of us were involved in actually subduing Mr Msibi and putting him in the back of the Land Cruiser.

I was involved in the driving of the Land Cruiser. After the Land Cruiser had initially been brought to a standstill and boxed the car in, the other guys hopped out and pounced on Mr Msibi. I hopped into the driver's seat and while they were struggling with him, I reversed the Land Cruiser up to where they were struggling with Mr Msibi. Steve Bosch opened the rear doors of the Land Cruiser and Mr Msibi was shoved into the back where a number of the guys, I think there were four/five of them, sat on top of him to hold him down, because he was struggling, and I can just remember them saying how strong he was at the time.

MR NEL: Well the words that you use in your application already constitutes an assault, where you say:

It's common cause that he was manhandled, is that correct?

MR McCARTER: Absolutely, Mr Chairman.

MR NEL: And once he was in the vehicle, you drive out and you crossed the border where you - not legally, you went through the fence. What happened there?

MR McCARTER: Just shortly before the border post we turned off onto a small dirt road and rode parallel with the border fence, up until a point about two kilometres from the border post, I reckon, where we cut the fence and drove through onto the South African side.

MR NEL: And you parked somewhere - I've heard the evidence, or we heard the evidence, something like a forest, and if I refer you to - or first of all, why did you stop there and not go to the clubhouse immediately?

MR McCARTER: I think it was basically to wait for the other vehicles to catch up to us and also that we were just re-arranging our position and everyone settling themselves down again, because it was quite a nerve wracking experience.

MR NEL: The late Mr Msibi says in his affidavit that one of the white men remarked after this, "Welcome to South Africa", is it correct that you were in fact the person who said to Mr Msibi, "Welcome to South Africa"?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Briefly, at the Oshoek club, were you involved in an assault on Mr Msibi at all?

MR McCARTER: No, Mr Chairman.

MR NEL: You were obviously aware of Mr Msibi being assaulted.

MR McCARTER: That's correct, Mr Chairman.

MR NEL: You did associate yourself with that?

MR McCARTER: Absolutely.

MR NEL: And at Vlakplaas, were you involved in an assault on Mr Msibi?

MR McCARTER: No, Mr Chairman.

MR NEL: But you also knew that he was assaulted and you also associated yourself with that?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Mr McCarter, lastly then, is it correct that you apply for amnesty for the conspiracy to abduct Mr Msibi, the actual abduction itself, the assault upon Mr Msibi and offences regarding the illegal crossing of the border and therefore breaking the border regulations, and are you also applying for amnesty for any other delict or civil matter that might flow from this incident?

MR McCARTER: That's correct, Mr Chairman.

MR NEL: Did you receive any benefit for your taking part in this operation?

MR McCARTER: No, Mr Chairman.

MR NEL: Thank you, Mr Chairman, that's the evidence

CHAIRPERSON: Thank you, Mr Nel. Mr Hugo, any cross-examination?

MR HUGO: I've got no questions, thank you Mr Chairman.

MR VISSER: No questions, thank you Chairperson.

CHAIRPERSON: Mr Cornelius?

MR CORNELIUS: No questions, thank you, Mr Chair.

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO: No questions, thank you Mr Chairperson.

CHAIRPERSON: Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Mr Lamey?

MR LAMEY: No questions, thank you Chairperson.

CHAIRPERSON: Mr Makondo?

CROSS-EXAMINATION BY MR MAKONDO: Thank you, Chairperson.

Firstly, Mr McCarter, I would like to confirm that Twala is the surname he used in Swaziland, you are correct, he was called Thomas Twala. You are very correct there.

MR McCARTER: Thank you.

MR MAKONDO: So we're talking of a similar person.

CHAIRPERSON: Same.

MR MAKONDO: The same person, Chairperson. Thank you, Chair.

The moment of abduction, can you give the details thereof? I'm asking you this in relation to what he gave in his affidavit, because you were there observing you perhaps at least can confirm what he's saying or give details thereof.

MR McCARTER: Yes. Basically, in there, except for the weapons, that's not true, but the rest of the thing where he was handcuffed, I think at some - basically he was only handcuffed on the road, yes, because the guys held him down in the back, he was struggling and they had to hold him down and we were just driving at the same time. So it was basically a snatch and grab and he was only handcuffed on the way to the border. I think he was gagged, I can't remember. As I was driving you know, the thing was behind me, the incident that took place there. And I can confirm that the ladies doing their washing at the river, they did scream.

MR MAKONDO: Mr de Kock talked of a balaclava, do you remember perhaps that you at some stage did put a balaclava over his face?

MR McCARTER: I'm not too sure because his head and everything was kept down behind the seat, you know, they were basically sitting on him to hold him down.

MR MAKONDO: Thank you. And at the clubhouse, could you perhaps detail your arrival there and how he was dealt with at the clubhouse.

MR McCARTER: Not specifically, Mr Chairman, I know that we waited for a short while, after we had crossed the border we waited for a short while in the plantation and then we went down to the club. I think when we had heard that everyone had arrived back and they were ready for us to go down there, that we went down to the clubhouse. I know that there were assaults that took place at the time, basically how Mr de Kock described it, that's how I remember it. But most of us that weren't involved in the interrogation, we were sort of on the side. We basically waited outside most of the time, because we didn't have the background that the interrogators had and consequently we had no interest in the actual interrogation. We couldn't give, you know, any contribution in that respect.

MR MAKONDO: Thank you, Mr McCarter. That will be all, Chairperson, thank you.

CHAIRPERSON: Thank you, Mr Makondo. Ms Patel?

CROSS-EXAMINATION BY MS PATEL: Thank you, Honourable Chairperson.

Just one aspect, Mr McCarter. During the time at the Oshoek clubhouse, when you were standing outside, can you confirm whether he was possibly assaulted, Mr Msibi was assaulted during that time, in-between when Mr Hugo and Mr Greyling had gone back to Swaziland?

CHAIRPERSON: Not Mr Hugo, don't make him a party to the application.

MR HUGO: I wasn't ...

MS PATEL: Gosh, I'm sorry.

CHAIRPERSON: I suppose it's Mr de Kock? There's a close association, probably similar.

MR HUGO: I don't know why, Mr Chairman, but ...

MS PATEL: I'm sorry, Mr Hugo, it had to happen sometime. Mr de Kock. My apologies.

In-between the time that Mr de Kock and Mr Greyling had gone back into Swaziland to search Mr Msibi's house and when he had returned, can you say whether Mr Msibi was in fact assaulted during that period, at the clubhouse?

MR McCARTER: I can't say for certain, Mr Chairman, unfortunately. I know he was assaulted initially, as Mr de Kock describes it, and thereafter there was interrogation taking place, but I can't remember specifics you know, because it was over a period basically, during the day, that he was kept there until Mr de Kock and them got back and there was this re-questioning about what they had found.

MS PATEL: Okay. And do you confirm Mr de Kock's time period as to when he was held at the Oshoek clubhouse?

MR McCARTER: Yes, yes, no it was. You know we picked him up probably about 10 o'clock that morning, so I think the meeting was for about half past nine, 10 o'clock and he was punctual. So it was from, he was held basically from the morning until the late afternoon until they got back, yes.

MS PATEL: Okay. And you say he was handcuffed whilst in the vehicle, did those cuffs remain on his hands when you arrived at Oshoek, or were they removed? Can you remember?

MR McCARTER: I can't remember specifics there.

MS PATEL: Okay. And there's mention in the article here about leg-cuffs or leg irons, can you recall anything to that effect?

MR McCARTER: I know for certain that we didn't put leg irons on him in the vehicle, because there was just no time.

MS PATEL: Okay.

MR McCARTER: So I can't comment afterwards.

MS PATEL: Alright. Thank you, Mr McCarter. Thank you, Honourable Chairperson.

CHAIRPERSON: Thank you, Ms Patel. Advocate Bosman?

ADV BOSMAN: I have no questions, thank you Chairperson.

CHAIRPERSON: Advocate Sandi?

ADV SANDI: Just one question from me, thank you Chair.

Mr McCarter, are you able to give us the names, the name or names of any person you saw assaulting Mr Msibi at the clubhouse?

MR McCARTER: Well Mr de Kock naturally was the person that I recollect, I can't think offhand of anyone else.

ADV SANDI: Thank you. Thank you, Chair.

CHAIRPERSON: When you got to the clubhouse and Mr Msibi disembarked, where were you, were you inside the clubhouse or outside the clubhouse?

MR McCARTER: I don't think I drove the vehicle then, the vehicle was actually driven by Paul van Dyk, so he was anxious to get back into the driving seat. He was most concerned when I was driving the vehicle from the abduction point up to the border post, he kept on shouting over my shoulder whether I'm still alright and I think he was concerned about his vehicle, so he was anxious to get back into the driving seat. As I recollect, he drove back down from the plantation to the border post and I was in the vehicle.

CHAIRPERSON: And when you got to the clubhouse from the plantation, did you enter inside the clubhouse or where did you position yourself or where did you wait around?

MR McCARTER: I did go into the clubhouse on a few occasions, Mr Chairman, but you know, it was sort of in and out.

CHAIRPERSON: Thank you. Any re-examination, Mr Nel?

MR NEL: Thank you, Mr Chairperson, I've got no re-examination.

CHAIRPERSON: Thank you very much, you can undertake your trip, Mr McCarter.

MR McCARTER: Thank you very much.

CHAIRPERSON: You are excused.

MR McCARTER: Thank you.

CHAIRPERSON: I hope you'll arrive safely and you drive safely as well.

MR McCARTER: Thank you very much.

CHAIRPERSON: Mr Lamey, I suppose you could break the ...(indistinct)

MR LAMEY: Yes. Thank you, Chairperson, I call applicant Nortje.

--------------------------------------------------------------------------WILLEM ALBERTUS NORTJE: (sworn states)

CHAIRPERSON: Thank you, you may take a seat, Mr Nortje. Mr Lamey?

EXAMINATION BY MR LAMEY: Mr Nortje, in these proceedings you also apply for amnesty for your participation in the abduction of what you refer to in your application as the "Handler of W/O Malaza of the South African Police", is that correct?

MR NORTJE: That's correct, Mr Chairperson.

MR LAMEY: We will later get to that. You submitted an initial application for amnesty which you undersigned and which can be found on page 41, is that correct?

MR NORTJE: That's correct.

MR LAMEY: Then there is an initial typed annexure thereto on page 44, where you make mention of this incident, and which goes over to page 45 is that correct?

MR NORTJE: That's correct.

MR LAMEY: After you got legal representation a supplementary application was submitted and that we can find on page 52 up until page 53, is that correct, and then also your explanation of your political objectives on page 55 and 56, is that correct?

MR NORTJE: Yes.

MR LAMEY: Mr Nortje, just concerning the date, when you made your statement you mentioned that it was during 1988, we've all agreed that it is 1986, will you accept that?

MR NORTJE: Yes.

MR LAMEY: And you also remember that it was Mr Msibi who was the handler and when you made the statement you could not recall the name?

MR NORTJE: That's correct.

MR LAMEY: You also had the advantage of listening to the evidence of other applicants, especially also the Commander, Mr de Kock. You were a member of Vlakplaas, what was your rank at that stage?

MR NORTJE: I was a Sergeant.

MR LAMEY: You were part of the group who executed the abduction from Swaziland to South Africa.

MR NORTJE: That is correct.

MR LAMEY: You also mentioned in your initial application that the whole operation was under the leadership of Brig Schoon, with other high-ranking officers knowing about this. Is it correct that you are in agreement with Gen Stadler's involvement?

MR NORTJE: That's correct, yes.

MR LAMEY: I do not want to repeat the evidence that has already been led, but you do confirm what has been said by, amongst others, Col de Kock and McCarter, who testified before you. Can you just in short tell us what your role was in Swaziland concerning the abduction and how it happened according to your knowledge.

MR NORTJE: The day when Msibi was abducted, we went in the morning. The planning was done as Mr de Kock said, on the road close to Mbabane. We chose a place there. They made the arrangements. Myself and Bosch were driving in one vehicle.

MR LAMEY: Was that another vehicle to the Land Cruiser?

MR NORTJE: Yes, it was a different vehicle. The planning was that we would then stop next to him, grab him and put him in the Land Cruiser. After a while we got the message that they were on their way. The red Alpha stopped. The planning went as we planned it. We stopped next to the red vehicle. Some of the people in the Cruiser got out. Coetser jumped out. We were more-or-less the same time at the vehicle. Msibi saw that there were problems, he started fighting. We got him under control. We loaded him into the Cruise and we drove off.

CHAIRPERSON: When you say he started fighting, what did he do? That is Mr Msibi.

MR NORTJE: He resisted because we wanted to grab him. He immediately realised that we are going to try and load him into the vehicle, because he did resist and he was quite strong.

MR LAMEY: Can I just stop you there, who were the members who were with you who grabbed or seized Mr Msibi?

MR NORTJE: Myself, Coetser and van Dyk I can remember were there. We grabbed him. I do not know what the other members did at that stage, I assume that Steve Bosch was there and McCarter. He was the driver. He pulled in the vehicle and positioned it next to the other and we then grabbed him and put him in the back of the Cruiser.

MR LAMEY: After he was placed in the Land Cruiser, what did you do then? Did you go back to the other vehicle?

MR NORTJE: I then went to my vehicle. Myself and Bosch followed them and basically covered the back ...(intervention)

MR LAMEY: You gave cover.

MR NORTJE: Gave cover. They were a little way in front of us and we saw that there was - because people saw us, women did scream from the river's side. It was daytime, so people could have seen us, so we took the necessary precautions, but nothing happened and we drove until the border post. We went past the border post on the left-hand side. ...(transcriber's interpretation)

MR LAMEY: You did not go through the border post?

MR NORTJE: No, we went over the fence and we then went to a place in a plantation on the Republic's side of the border.

MR LAMEY: Do you know if Mr Msibi, before he was loaded into the Land Cruiser, or maybe during the transportation of him, if his mouth was covered with tape and if he was cuffed? Can you recall?

MR NORTJE: I did not do it myself, but I think that his mouth was covered yes, because when we got to the other side he was also tied or cuffed. I was not involved in that because the people who were in the Cruiser did that, because we were driving in the other vehicle.

MR LAMEY: Can you recall how long you waited there at the plantation and what the reason was for that?

MR NORTJE: Well the abduction took place approximately 10 o'clock that morning, so it did not take us very long to cross the border and we waited in the plantation, I think till late that afternoon. I do not think, I can't remember who we waited for, if it was people from Pretoria or what the delay was. We sat there and basically just ensured that he did not escape. Some of the members came and spoke to him and at a later stage that afternoon, he was taken to the clubhouse.

MR LAMEY: During his detention there in the plantation, was there any assault on him there? ...(transcriber's interpretation)

MR NORTJE: No, not as far as I can recall. We did not have any reason to assault him because we did not have the background.

MR LAMEY: Were you waiting for instructions at that stage?

MR NORTJE: Yes. It was not in our hands anymore, we had completed our task.

MR LAMEY: Your task was the abduction?

MR NORTJE: Yes.

MR LAMEY: I accept then that you also had to ensure that you had to meet them at the arranged point.

MR NORTJE: Yes.

MR LAMEY: Just before I get to that aspect of the clubhouse, how did you get through the border post, did you have false passports?

MR NORTJE: Yes, we did.

MR LAMEY: Mr de Kock talked about weapons and that the weapons were in his vehicle.

MR NORTJE: I know I had a weapon on me.

MR LAMEY: You will not deny that there were weapons in Mr de Kock's vehicle?

MR NORTJE: No, I will not deny it, no.

MR LAMEY: Did you have a weapon with you?

MR NORTJE: I did have a weapon with me, yes.

MR LAMEY: Was it a legal weapon, an issued weapon, a police weapon?

MR NORTJE: I cannot recall, I believe it would have been. I do not know, I cannot pertinently recall that.

MR LAMEY: Let me take you back. This incident took place before the so-called illegal weapons were taken out of Ovamboland later to Vlakplaas, is that correct?

MR NORTJE: That is correct, yes. Or I think so.

MR LAMEY: In other words, it was a weapon which was issued to you, is that correct?

MR NORTJE: I'm not quite sure if it was my personal weapon or if it was a weapon that I got from the farm, because I had a lot of weapons with me.

MR LAMEY: But it was a weapon that was in stock at Vlakplaas.

MR LAMEY: Yes, yes.

MR LAMEY: It was part of the police ammunition or stockpile.

MR NORTJE: Yes.

MR LAMEY: Just another aspect. The abduction of Mr Msibi, was there another attempt made the previous day that you carry any knowledge of, that did not realise?

MR NORTJE: Yes, the previous day we went down to Swaziland and the arrangement was apparently that we will go to a golf course and Msibi will then meet Malaza there and we would have abducted him from there. Things did not work out though, and we then returned that evening.

MR LAMEY: You then confirm what Brig Schoon said in this regard.

MR NORTJE: Yes.

MR LAMEY: When you arrived at the clubhouse, you heard the evidence that at the clubhouse he was questioned or interrogated and also assaulted, did you at stage personally participate in any assault on Mr Msibi?

MR NORTJE: No, I did not assault or hit him.

MR LAMEY: You probably expected that the abduction would have a purpose in that they would interrogate him and you also associated yourself with this.

MR NORTJE: Yes.

MR LAMEY: Is it correct that you were also involved in the transportation of Mr Msibi for there to Vlakplaas that same day? ...(transcriber's interpretation)

MR NORTJE: The same night, yes.

MR LAMEY: The same night. Then when he arrived or when you brought him to Vlakplaas, was he interrogated there?

MR NORTJE: Yes, the next day there was interrogation, but then the people from Intelligence came there and ...(intervention) ...(transcriber's interpretation)

MR LAMEY: That's Police Intelligence?

MR NORTJE: Yes. They arrived and they started interrogating him, but they had more background to this whole situation, we did not have all of the background.

MR LAMEY: Did you participate in any assaults?

MR NORTJE: No, I did not.

MR LAMEY: Just to deal with that, according to Mr Msibi, in the newspaper report that is Exhibit A in front of the Committee, he said that he was so seriously assaulted at the Oshoek clubhouse that he lost consciousness, what was your impression concerning his personal state? Can you comment if he at any stage lost consciousness or the seriousness of the assault?

MR NORTJE: Well my opinion of the whole assault situation was that it was not as intense or as violent that he at any stage could, I can't recall that he was lying down or was unconscious as he described it. I cannot recall. If it had happened, it would have left an impression with me, but I cannot remember that he was in such a serious condition. He was assaulted though, he was slapped but he was not as seriously assaulted that it could have made him lose his consciousness.

MR LAMEY: He was conscious when you transported him to Vlakplaas?

MR NORTJE: Yes.

MR LAMEY: Were there any visible injuries on his body when you took him to Vlakplaas?

MR NORTJE: No.

MR LAMEY: Or which you can recall?

MR NORTJE: No.

MR LAMEY: Then he mentions a person with the name Willie, now we know, I think everyone knows that you are Willie Nortje, but he mentions that at Vlakplaas - or he's not talking about Vlakplaas, but in the context it seems as if he's referring to a detention at Vlakplaas, then he says:

Did you participate in this interrogation?

MR NORTJE: No, this was the Willie Botha that was working under Gen Stadler's people. The two of them had a relationship - during the interrogation the two of them basically built up a good understanding and I think that is why maybe he recalls his name. ....(transcriber's interpretation)

MR LAMEY: That was now from Police Intelligence?

MR NORTJE: Yes.

MR LAMEY: Mr Schoon also referred to him in his evidence.

MR NORTJE: Yes.

MR LAMEY: Very well. Furthermore, in your statement you also confirm that the day after that he was transported with a military helicopter and Military Intelligence had come to pick him up.

MR NORTJE: That's correct, yes.

MR LAMEY: Mr Nortje, you are applying for amnesty for the illegal abduction and arrest that you described in your application as the "unknown handler of Malaza", but you now have confirmed it's Mr Msibi, or any offence or delict that may result from this ...(end of side A of tape) amnesty for any offence concerning the border control regulations, is that correct?

MR NORTJE: Yes.

MR LAMEY: As well as it pertains to the fact that you did not do anything to prevent the assault and also the physical removal of Mr Msibi from his vehicle and in such a way that it could have been assault or can be seen as assault, is that correct?

MR NORTJE: That is correct, yes.

MR LAMEY: And then other offence that can be concluded from the facts as given, is that correct.

MR NORTJE: That's correct.

MR LAMEY: And then concerning the political objectives, you also confirm that as it appears on pages 55 and 56.

MR NORTJE: That's correct.

MR LAMEY: You also then agree with what the other applicants have said concerning this, is that correct?

MR NORTJE: That's correct, yes.

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

CHAIRPERSON: Thank you, Mr Lamey. Mr Hugo, any cross-examination?

MR HUGO: No cross-examination, thank you Mr Chairman.

CHAIRPERSON: Mr Visser?

CROSS-EXAMINATION BY MR VISSER: Thank you, Chairperson.

Mr Nortje, on page 44 of volume 1, or bundle 1, at the bottom of the page you refer to the Head of the Security Branch, and then on page 53 you talk about senior Generals of the Security Police, and on page 112 of the same bundle you say "with the apparent knowledge of senior Generals, the Head of the Security Branch". If people had known, or let me just put it this way, do you know if the people to whom you refer to had knowledge of this before or was this your own observation?

MR NORTJE: It's an assumption.

MR VISSER: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Visser. Mr Cornelius?

MR CORNELIUS: Thank you, Mr Chairperson, I've got no questions.

CHAIRPERSON: Thank you. Mr Prinsloo?

MR PRINSLOO: Thank you, Mr Chairman, no questions thank you.

CHAIRPERSON: Thank you. Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Thank you. Mr Nel?

MR NEL: Thank you, Mr Chairperson, I've got no questions.

CHAIRPERSON: Thank you. Mr Makondo?

MR MAKONDO: No questions, thank you.

CHAIRPERSON: Thank you. Ms Patel, any questions?

CROSS-EXAMINATION BY MS PATEL: Thank you, Honourable Chairperson, just one aspect.

Mr Nortje, during the period that you were at the Oshoek border house, can you confirm whether Mr Msibi was assaulted during that time?

MR NORTJE: I know that he was assaulted. I do now know who specifically did, I know that Mr de Kock came in later after he was brought from Swaziland. Mr Gert Visser said that he assaulted him, I did not see it because we were going in and out. What happened was that we lived in our quarters not far from there. I know that he was assaulted. I specifically recall that when he was brought from Swaziland and we got the devices, they were very upset and he was assaulted afterwards, but I cannot recall that anybody pertinently sat and questioned him and assaulted him, that did not happen, no.

MS PATEL: Of the senior members who were involved in this operation and who were present at Oshoek, who can you recall was present during his assault, Msibi's assault?

MR NORTJE: Gen Stadler was present, Brig Schoon was present. I cannot pertinently say that they were together in the building when he was assaulted. It's very difficult to say.

MS PATEL: Thank you very much. Thank you, Honourable Chairperson.

CHAIRPERSON: Thank you, Ms Patel. Advocate Bosman?

ADV BOSMAN: Thank you, Chairperson.

Mr Nortje, how long did you wait in the plantation?

MR NORTJE: Mr Chairperson, as far as I can recall, I think it was about three hours. The reason why I say this is that we sat there waiting for quite a while and we did not know what was going on, because I assumed that arrangements had to be made and I think Mr de Kock and them were still in Swaziland. That's what we thought anyway. And at a certain stage they came to us and told us to take Msibi to the station, to the border post. I cannot say if it was four hours, but I would say it was about late afternoon. If I must guess, I would say it was about 4 o'clock. We approximately waited for about three hours for further instructions, and that is my recollection, yes.

ADV BOSMAN: There's no clarity about how long Mr Msibi was in the brick house and that is why I'm putting this question to you. According to your recollection, what time would you say you took him there?

MR NORTJE: Mr Chairperson, if I must say, it was from 4 o'clock onwards, because late that evening we drove back to Pretoria. They came out of Swaziland, it had to be before 10 o'clock because at 10 o'clock the border closes. We could have made certain arrangements or there could have been certain discussions about the whole thing, I would say it's about 12 o'clock that evening when we drove back to Pretoria, because I knew early the next morning we arrived at the farm.

INTERPRETER: The speaker's microphone.

ADV BOSMAN: And the question of liquor, there were facilities for liquor or it was a bar?

MR NORTJE: Yes, it was a club. There were facilities yes, but I do not think that the local policemen whose place it was, we did not allow them to be there under those circumstances, but I can recall that we gave him any liquor or that anybody used liquor there as he alleges there. It did not make sense that they would have given him that amount of alcohol.

ADV BOSMAN: Did you notice any leg irons?

MR NORTJE: It is possible that they could have put the leg irons on as he entered the clubhouse.

ADV BOSMAN: Did you have leg irons with you?

MR NORTJE: Yes, we always had with us.

ADV BOSMAN: Very well, thank you.

CHAIRPERSON: Thank you, Advocate Bosman. Advocate Sandi?

ADV SANDI: Thank you, Chairman, I don't have a question thank you.

CHAIRPERSON: Did you have anything to drink yourself?

MR NORTJE: No, Mr Chairperson, because as I said, we still had a very long night ahead of us and there was no reason for us to drink at that stage.

CHAIRPERSON: Thank you. Any re-examination, Mr Lamey?

MR LAMEY: No re-examination, thank you Chairperson.

CHAIRPERSON: Thanks a lot, Mr Nortje, you are excused.

MR NORTJE: Thank you.

CHAIRPERSON: It would make sense if Mr Bosch would be next, don't you think so, Mr Lamey?

MR LAMEY: Yes, thank you Chairperson, I call applicant Bosch.

--------------------------------------------------------------------------IZAK DANIEL BOSCH: (sworn states)

CHAIRPERSON: Thank you, Advocate Bosman. Mr Lamey?

EXAMINATION BY MR LAMEY: Thank you, Chairperson.

Mr Bosch, you also submitted an initial application and you signed it on the prescribed form which you filled in in 1996, is that correct?

MR BOSCH: Yes.

MR LAMEY: Then there's a typed annexure which we find from page 64, and then mention is made briefly in paragraph 11.1 on page 66, to your involvement in the abduction of one, Mr Msibi, is that correct?

MR BOSCH: That's correct, Mr Chairperson.

MR LAMEY: And then later when you got legal representation supplementary affidavits were made, that we can find on page 72 up until page 74.

MR BOSCH: That is correct.

MR LAMEY: Is it true that at a certain stage when you made your supplementary statements and you consulted with your legal representative, Mr Rossouw, that you did have input of Mr Nortje's affidavit at that stage?

MR BOSCH: Yes.

MR LAMEY: You also associated yourself with the contents thereof and you also referred to it in your amnesty application, is that correct?

MR BOSCH: That's correct, Mr Chairperson.

MR LAMEY: You also went further and said that you do indeed recall that the handler of Mr Msibi was W/O Malaza, is that correct? ...(transcriber's interpretation)

MR BOSCH: That is correct, Mr Chairperson.

MR LAMEY: Just another aspect, in paragraph 3 on page 73 of the bundle you say:

Just that first sentence, after consultation you referred to it and you said that that's wrong and that is not the arrest of Malaza and you would like that to be rectified, is that correct?

MR BOSCH: That's correct, Mr Chairperson.

MR LAMEY: It is also true that Mr Msibi who was the handler of Mr Malaza, according to your knowledge or according to your information, was not arrested, he was grabbed and he was abducted out of Swaziland, is that correct? ...(transcriber's interpretation)

MR BOSCH: That's correct, Mr Chairperson.

MR LAMEY: You also now had the opportunity to listen to the evidence of Mr Nortje, is that correct?

MR BOSCH: That's correct, Chairperson.

MR LAMEY: Is it also correct that you were with him in the vehicle in Swaziland and you also confirm what he said concerning your participation in this?

MR BOSCH: That's correct, Chairperson, as well as what Mr McCarter said, that I was the one who opened the Cruiser's doors.

MR LAMEY: You also listened to the evidence of Mr de Kock, is that correct?

MR BOSCH: That is correct, yes.

MR LAMEY: And you also agree with his evidence?

MR BOSCH: Yes, I do agree with Mr de Kock and also with what Mr de Kock said at the end of the evidence. What he said to the family, I also agree with that.

MR LAMEY: I will not deal with that now, but you also agree with the summary of what Mr de Kock testified about, is that correct?

MR BOSCH: That is correct.

MR LAMEY: Chairperson, I don't know whether you want me to lead anything further, that is then the evidence of Mr Bosch.

CHAIRPERSON: I'm in your hands, if you feel you have covered everything, I won't interfere with that.

MR LAMEY: I've gone a bit short on Mr Bosch, because I think a lot of it overlaps actually with Mr Nortje and he was actually in the same position and the same vehicle as Mr Nortje.

CHAIRPERSON: I appreciated that, thank you, Mr Lamey.

CHAIRPERSON: Mr Hugo?

MR HUGO: No questions, thank you Mr Chairman.

NO QUESTIONS BY MR HUGO CHAIRPERSON: Mr Visser?

MR VISSER: No questions, thank you Chairperson.

CHAIRPERSON: Mr Cornelius?

MR CORNELIUS: No questions, thank you, Mr Chair.

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO: No questions, thank you Mr Chairperson.

CHAIRPERSON: Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Mr Nel?

MR NEL: I've got no questions, thank you, Sir.

CHAIRPERSON: Mr Makondo?

MR MAKONDO: No questions, Chairperson, thank you.

CHAIRPERSON: Ms Patel?

MS PATEL: No questions, thank you Honourable Chairperson.

CHAIRPERSON: Advocate Bosman?

ADV BOSMAN: No questions, thank you.

CHAIRPERSON: Advocate Sandi?

ADV SANDI: No questions, thank you Chair.

CHAIRPERSON: Thank you, Mr Bosch, you are excused.

MR BOSCH: Thank you, Mr Chair.

CHAIRPERSON: Mr Cornelius, I think ...(indistinct - no microphone)

MR CORNELIUS: That is correct, thank you, Sir.

--------------------------------------------------------------------------ADV BOSMAN: Mr Vermeulen, could we have your full names for the record please.

NICOLAAS JOHANNES VERMEULEN: (sworn states)

CHAIRPERSON: Mr Cornelius, I'm affording him the respect his colleagues are affording him, they call him "Oom Snor". You can confirm that with your client.

MR CORNELIUS: Thank you, Mr Chair.

You are fondly known as Snor Vermeulen, is that correct?

MR VERMEULEN: That's correct, Mr Chairman.

EXAMINATION BY MR CORNELIUS: Thank you, Mr Chair.

You are an applicant in this incident and you gave your full cooperation in the preparation of the application to the TRC, is that correct?

MR VERMEULEN: Yes.

MR CORNELIUS: You initially, which is now common cause, confused Sedibe and Msibi and then a separate bundle was submitted with your amnesty application that was supplemen-tary.

MR VERMEULEN: That is correct, yes.

MR CORNELIUS: Do you also confirm you political objectives as it appears in this paginated document from page 84 up until page 93, is that correct?

MR VERMEULEN: Yes.

MR CORNELIUS: Then on page 93 you in very short tell us what your involvement was in this operation in Swaziland, is that correct?

MR VERMEULEN: That is correct.

MR CORNELIUS: You were a member of Vlakplaas, what was your rank?

MR VERMEULEN: I was a Warrant Officer.

MR CORNELIUS: You followed the instructions of Eugene de Kock, is that correct?

MR VERMEULEN: Yes.

MR CORNELIUS: Is it also correct that you worked on a need-to-know basis and you only reacted on the information that was conveyed to you?

MR VERMEULEN: That is correct.

MR CORNELIUS: You took part in the abduction of Mr Msibi and you were present at the scene when he was seized, as was testified to.

MR VERMEULEN: That's correct, Mr Chairperson.

MR CORNELIUS: I think which is important, can you just tell the Committee what did you do with the red Alpha vehicle?

MR VERMEULEN: I just know that it was pushed over a cliff to get rid of it. That is what I know about the red Alpha.

MR CORNELIUS: So we can accept that this vehicle was seriously damaged as it was pushed over the cliff, is that correct?

MR VERMEULEN: That is correct.

MR CORNELIUS: Did you yourself assault Mr Msibi while you abducted him?

MR VERMEULEN: Yes.

MR CORNELIUS: Did you help with the loading in of Mr Msibi into the vehicle?

MR VERMEULEN: Yes.

MR CORNELIUS: And you also illegally crossed the border, that is very clear.

MR VERMEULEN: That is correct, yes.

MR CORNELIUS: Did you carry a weapon?

MR VERMEULEN: No, Mr Chairperson.

MR CORNELIUS: Did you participate in the assault of Mr Msibi at the clubhouse?

MR VERMEULEN: No, Mr Chairperson.

MR CORNELIUS: Did you furthermore take a part in the assault that took place at Vlakplaas?

MR VERMEULEN: No, Mr Chairperson.

MR CORNELIUS: You had no personal malice against Mr Msibi.

MR VERMEULEN: No.

MR CORNELIUS: Did you receive any remuneration for this?

MR VERMEULEN: No.

MR CORNELIUS: Did you feel that you were acting in the interest of the country and that all of your actions fell within the framework of the police and the instructions that were given to you?

MR VERMEULEN: Yes.

MR CORNELIUS: Do you then request that this Honourable Committee give you amnesty for abduction, illegal detention of Mr Msibi in South Africa and the illegal crossing of the border?

MR VERMEULEN: Yes, Mr Chairperson.

MR CORNELIUS: You also ask for amnesty for assault and the damaging of property, and that is the vehicle.

MR VERMEULEN: That is correct.

MR CORNELIUS: And any other delicts or offences that may arise from these facts.

MR VERMEULEN: Yes.

MR CORNELIUS: Do you also apply then for amnesty for the illegal crossing of the borders and also defeating the ends of justice because you did not make known the true facts as it was known to you?

MR VERMEULEN: That is correct, yes.

MR CORNELIUS: Do you agree with the statement that Mr de Kock to the family?

MR VERMEULEN: Yes, Mr Chairperson.

MR CORNELIUS: Thank you, Mr Chair.

CHAIRPERSON: Thank you, Mr Cornelius. Mr Hugo?

MR HUGO: No questions, thank you Mr Chairman.

CHAIRPERSON: Mr Visser?

MR VISSER: No questions, thank you Chairperson.

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO: No questions, thank you, Mr Chair.

CHAIRPERSON: Ms van der Walt?

MS VAN DER WALT: No questions, thank you.

CHAIRPERSON: Mr Nel?

MR NEL: No questions, thank you, Mr Chair.

CHAIRPERSON: Mr Lamey?

MR LAMEY: No questions, thank you Chairperson.

CHAIRPERSON: Mr Makondo?

MR MAKONDO: No questions, Chairperson, thank you.

CHAIRPERSON: Ms Patel?

MS PATEL: Thank you, Honourable Chairperson, I have no questions.

CHAIRPERSON: Thank you. Advocate Bosman?

ADV BOSMAN: No questions, thank you, Chairperson.

CHAIRPERSON: Thank you. Advocate Sandi.

ADV SANDI: Thank you, no questions, Mr Chairman.

CHAIRPERSON: Thank you very much, Mr Vermeulen, you are excused. I take it I could excuse him because you wouldn't have any re-exam?

MR CORNELIUS: I have no re-examination, thank you Chair.

CHAIRPERSON: Thank you very much.

CHAIRPERSON: It would appear we have come to the end of the applicants, unless I'm mistaken. I think I was keeping account, that we heard all applicants. Would I be correct? Mr Cornelius, I think you are not calling any witnesses?

MR CORNELIUS: No witnesses.

CHAIRPERSON: Thank you. Mr Makondo, are you going to lead any evidence?

MR MAKONDO: No Chairperson, no evidence will be led, thank you.

CHAIRPERSON: Ms Patel?

MS PATEL: No, Honourable Chairperson, I do not intend to lead any evidence, thank you.

CHAIRPERSON: So this concludes this matter, other than argument.

MS PATEL: That is correct.

CHAIRPERSON: I would allow a five minutes adjournment so that people get their thoughts together, that we deliver short argument in this respect. I think you will welcome it, Mr Visser, for reasons which you and I know.

We'll take a short adjournment of about five to ten minutes, thank you.

CHAIRPERSON: ... they are applying for, it would make it tidier. I don't know who is ready to begin, but obviously it would be legal representatives for the applicants who would begin. I don't know if you had an opportunity to discuss this amongst yourselves, but it would be legal representatives for applicants.

MR VISSER: Well Chairperson, I will restrict the arguments to only one argument and that is between me and the Panel, as opposed to between me and my learned colleagues, because there seems to be an argument as to who should start and I have decided to succumb to the pressure and to start.

CHAIRPERSON: ...(indistinct - no microphone) as the most senior, you should.

MR VISSER: I thought ladies first, Chairperson, but ...

CHAIRPERSON: It doesn't work like that. Thank you, Mr Visser.

MR VISSER IN ARGUMENT: Chairperson, on the whole the application concerns the abduction of Mr Msibi from Swaziland and all that goes along with it. In Exhibit B, which we handed up on behalf of Brig Willem Schoon, at page 2 in paragraph 1, we attempted to specify the most important offences which we could distinguish on the facts, and they would appear to include perhaps a conspiracy beforehand, but it would include the abduction itself. It is clear that all the applicants who were involved crossed the borders illegally, either in or out or both ways.

CHAIRPERSON: I suppose both ways.

MR VISSER: Probably both ways. It is also technically correct that Mr Msibi, when he was landed in the Republic of South Africa, he became a person in custody and that custody would have been unlawful, it's unlawful detention. It is clear, Chairperson, that he was assaulted and we know assault doesn't even have to go hand in hand with a physical attack, even a threat could be an assault, so it's quite clear that he was assaulted to some degree and that all the persons who knew of the assault, associated themselves with that assault and became socius criminis with that assault.

It is also equally clear, in our respectful submission, that there would have been a defeating of the ends of justice, particularly from the point of view of policemen who are supposed to look after the law and order situation of the country, knowing that offences were committed and not reporting it or doing anything about it or going public with that knowledge. So certainly there was a defeating of the ends of the justice, which would have been a continuous offence, obviously.

And then, Chairperson, there may or may not have been in the case of certain of the applicants, for example, perhaps Col de Kock and whoever else was in the same vehicle with him, regarding the unlawful possession, transportation over international boundaries and use of illegal firearms, because the firearms that he spoke about, the Uzzis, I think you can take legal notice of, were not standard issue. And it may be that it can be argued by the Attorney-General, that a person like Brig Schoon would have known that they would have taken such weapons with them and that he would technically also be guilty of that kind of offence.

Chairperson, not to get involved in a long argument about it, but insofar as the Act does specify that the Amnesty Committee shall grant amnesty for offences and delicts committed by persons in the conflict of the past, subject to the conditions and provisions of the Act, we say, Chairperson, that we also ask, in the main really, for any offence or delict committed by Mr Schoon, in regard to this particular incident which we now know took place in June 1986, at Mbabane and in the Republic of South Africa, at Oshoek and in Pretoria.

So Chairperson, very briefly, we are honoured to appear before three Members of the Committee who has now a wide experience of the background against which amnesty applications have been brought, as it was envisaged in the TRC Act, the Act on National Unity and Reconciliation. We don't believe that it is necessary for us to rehash the background history, the conflict of the past, etcetera, etcetera, suffice to say, Chairperson, that in the words of the ANC itself, which is a very good description, in our submission, it was a war comprising the whole of the population and it was a war in which people were killed, in which terrible deeds were done on both sides, and that is the background against which amnesty applications have to be approached and have been approached, we are happy to say, by the Amnesty Committees before whom we have appeared. It wasn't a declared war, Chairperson, but we know that it made no difference, in fact it made it worse, because there were rules that would normally apply in a declared war, which did not apply in this particular war.

And Chairperson, bringing the background into focus in regard to the present applications, one has to think of the importance of intelligence by the opposing parties of each other. The war as it has unfolded before Amnesty Committees in the evidence, was clearly run on intelligence by the one party of the logistics and the manpower and the movements and the intentions of the opposing party. And that it's for that reason, Chairperson, that the role of informers became so important in the conflict of the past and hand in hand with that, it became so important for members of the Security Forces, who had to deal with the revolutionary onslaught, to turn people to either penetrate its own agents into "enemy" organisations and structures, but more particularly to be able to turn the head of a person, particularly one higher up in the hierarchy, in order, on that basis, to obtain information which made life a lot easier, and as you heard in evidence yesterday, would also place them in a position where the police could take evasive action before attacks occurred.

Chairperson, enough about the background. We come to the present case of Mr Msibi. I believe it is reasonable to submit to you that from a point of view of what we knew about the security structures in the past of the South African Government, that a person like Mr Msibi would have been a target, there can be no issue about that. In this particular case a softer approach was decided on, it was decided on an approach of abducting and trying to canvass him as a person to work with the Security Forces. Now that wasn't the first time that we have heard of, this has happened in quite a few, many cases where we have had amnesty applications in which precisely this had happened. Phila Portia Ndwandwe is one of the examples, Chairperson. In that particular case, when she wasn't prepared to be turned, she was of course executed.

In this particular case, we don't quite know what happened with Mr Msibi. We heard Mr de Kock's evidence of what Gen Buchner had told him later, that he was neutral. There were also indications that he may well have been turned. We don't know, and in our respectful submission, it's not necessary for you to make any finding on what the outcome of that was. What we do submit to you is that there is no evidence whatsoever that even vaguely suggests that any of the applicants who are appearing before you here today, had anything to do with Mr Msibi's death whenever it occurred. There seems to be a dearth of information on that, and as Mr de Kock said, it was a clean clinical and a simple elimination, and we really don't know who did that, in fact, even when it was done.

What is important is the evidence of Mr de Kock that Buchner spoke to de Kock and said to him, "Listen, warn the askaris not to eliminate Mr Msibi if they do recognise him, because he is no threat any longer". And in our submission, Chairperson, that appears to be the end result which was sought to be achieved with his taking out of Swaziland with his abduction, it was in fact to eliminate that threat. What was that threat? That threat was the fact that he was the Chief of Intelligence of the ANC/MK in Swaziland, which made him a very powerful person, given again the importance of intelligence in the war of the past. Also, being in that position he would have a lot of information at his disposal which the Security Forces would have thought they would be able, if they would be able to tap, would stand them in good stead.

So, he is now in Swaziland, he is the Chief of Intelligence, and Brig Schoon goes further and says that he remembers that there were security reports that Mr Msibi had something to do with the assistance of members of the ANC who left the country, who went for military training overseas and for their re-infiltration into the Republic. He also said that he remembered that Mr Msibi had something to do with the acquirement of Eastern-bloc weapons, which were infiltrated into the country and which were used for purposes of executing acts of sabotage and terrorism.

An interesting aspect that has come to the fore in the evidence here was the metal or aluminium housings which were referred to by Mr de Kock and by someone else, which was identified by Mr de Kock as being that used in the British Isles during that period of time, by the Irish Republican Army in their campaign of sabotage, and in fact that this was the first time when it was realised that these might be introduced into South Africa, and he told you here in my cross-examination of him, that it caused quite a stir, it was sent to the experts to have a look at and to warn other branches of the Security Police that this might be something that might be introduced here. This was found in the room of Mr Msibi. So Chairperson, by and by we submit you will have no difficulty in finding that Mr Msibi was a very important ANC member and leader and that clearly, he would have been a legitimate target for the Security Forces, particularly the Security Police.

As it turned out, National Intelligence had already taken an interest in Mr Msibi, and we heard statements made about an argument that resulted after Mr Msibi was abducted, in which some words fell between National Intelligence, Mr Neil Barnard and Gen van der Merwe. Just to give you the background, Dr Neil Barnard who was in fact the Director-General of National Intelligence at the time, which fell under the State President, the State President having been the Minister of that Department, so Neil Barnard was in fact the Director-General of the Minister being the State President in that Department. But that's just by the by.

And Chairperson, we have before us Exhibit A, which under normal circumstances of evidence, would not be of much value, except that insofar as it is supported by the evidence and insofar as it is supported by the evidence, we submit that it gives a reasonably clear picture from the mouth of Mr Msibi himself, of what transpired on the day of his abduction and later. According to this report, Chairperson, in the first column, it is hailed to be an account of how the late ANC member, Sydney Jabulani Msibi was also Oliver Tambo's guard, left South Africa in 1976 and was later abducted in Swaziland in 1986. This account was first given to a visiting friend from Swaziland. Now we don't know who that is or what the circumstances were, but the second part is more important, "and later relayed to lawyers in an affidavit". So it clearly means an affidavit which was made by Mr Msibi.

Now I wasn't privy, Chairperson, with regard to the criminal trial of Mokgabudi and - I can't remember who the other person was ...(intervention)

CHAIRPERSON: Rabuli.

MR VISSER: Rabuli. ... in which Mr Msibi gave evidence. I'm not sure, and perhaps my learned friend, Mr Prinsloo, can tell you whether any of this featured in that hearing, but the fact of the matter is, Chairperson, that by and large, and this is the reason why I refer to Exhibit A, by and large, the evidence of Mr Msibi in this affidavit as it is reported here, coincides to a, in fact, on all material aspects, with the evidence of the applicants before you here today, and on that fact alone, Chairperson, I would submit to you with respect, that the objector's objection should fall away. That objection being an objection that full disclosure was not made. Well Chairperson, with respect, each and every one of the applicants to whom you have listened, must have impressed you with their desire to tell you everything that they knew. Some of them from the point of view of their own part that they played, would have known less than others, but certainly all of them came to you, made a clear breast of it and told you what they remember and most of that, Chairperson, in all material respects, are supported and corroborated by Exhibit A.

Chairperson, ...(intervention)

ADV BOSMAN: Mr Visser, I don't want to interrupt your train of thought, but ...

MR VISSER: No, please do.

ADV BOSMAN: ... may I just ask you this. Surely the manner in which the assaults took place is a material aspect of the whole application and it would seem that the more serious assaults are not corroborated by independent evidence. Could you perhaps just, or will you come to that later?

MR VISSER: No, no, I'd rather come to it now. Chairperson, no, I started off by saying that as evidence this is meaningless without the evidence supporting it, and what I'm saying is this, that on all material respects the evidence of the applicants have been corroborated. Clearly there are differences. Now the difference, for example, an on a material aspect, is the degree of the assault, but then Chairperson, where you have direct evidence to say this didn't happen, our law of evidence says that that is what you must then accept in the absence of evidence to the contrary.

Now he talks about becoming unconscious, for example, being burnt with cigarette butts and his hair. Now it's a pity that Mr Msibi isn't around to come and give that evidence and if he did he would have been cross-examined, at the end of which he may have said "I stick with my story, this is what I did", or he may have said, "No, I said that at the time because I had another agenda, I did this for a particular reason", or he may have said, "You know, I actually just didn't like these people and that's why I said that about them." We don't know, Chairperson, and that's why the Rule of Evidence is what it is.

ADV BOSMAN: Mr Visser, I appreciate the evidential value of the document, but if you take into consideration other evidence we have in regard to, for instance, the duration of Mr Msibi's detention in the clubhouse, are we not in a position where we can draw certain inferences as to the veracity of certain material aspects of the evidence?

MR VISSER: In my submission, not, Chairperson, one must be careful, with respect, not to make the mistake of assuming things. The one thing which you will be assuming if you wish to make a deduction from the time that he was in the clubhouse, is that he was interrogated and assaulted all the time. Now there's no evidence on which you can make that deduction. In fact, two of the witnesses, Nortje said that, I remember, and perhaps another witness, said that - and yes, Mr McCarter said they were in and out of the clubhouse. It's not a stagnant situation where Mr Msibi arrives at the clubhouse and remains there for 10 hours and everybody stays in the clubhouse and everybody keeps on interrogating him and assaulting him, there's nothing that allows of that as a reasonable deduction to make. Certainly, we heard in the beginning that he was interrogated for about three hours, now we know that he was in the clubhouse for 10 hours, the question is, do they conflict with each other, and in my submission, they don't. He could still have been only interrogated for three hours over a period of 10 hours. The point is this, Chairperson, there is nothing on the evidence or the circumstances before you, which can allow a reasonable deduction that Mr Msibi was in fact assaulted in the way in which he was, namely so much so that he became unconscious. Well the cigarette butts and so on, that came later at Vlakplaas, that wasn't there. But I take the point that he was there on Mr de Kock's evidence, for far longer than we understood it ourselves, I must tell you.

ADV BOSMAN: Mr de Kock also told us that he was of such value at that time and they were keen to do whatever repair work they could do while they were at the border and that he was convinced that they would have questioned him for as long and as much as possible to try and get information, to go back if needs be, into Swaziland. Now surely with that evidence, are we not in a position where we can, at least on probabilities, make certain findings?

MR VISSER: But then you may not ignore Mr de Kock's evidence that that information as to where he lived, was obtained reasonably speedily. He gave him a few hard slaps and he got the information. And it all happened, if I remember his evidence correctly, within a three-quarter of an hour to an hour, and then he left.

ADV BOSMAN: Then we have further evidence from another one of the applicants, I'm not quite sure who it was, who said that upon Mr de Kock's return, they who were questioning him, I think it was Visser, Gert Visser, were so frustrated when they couldn't get more information from him in regard to the devices which were brought back in the box.

MR VISSER: But you see, Chairperson, with great respect, that's the point I'm making. You take a 10-hour period, you take the starting point and the ending point of the 10-hour period, at the beginning of the 10-hour period, if it was a 10-hour period, we have de Kock that has a priority, 'we're at Swaziland now, let's find out whether there's anything else in the machinery that we could discover now that we can go and tackle and deal with now'. This takes him, on his evidence, let's say an hour, then he leaves. Now you come to Visser, Visser talks about a frustration, that's at the end of the 10 hours when de Kock comes or whoever comes back, de Kock and Greyling I think it was, with the box with the apparatus, at that stage Visser tells you that they became frustrated because they wanted to know about this. That's at the end, Chairperson. All that I'm saying, with respect, is we must not make the mistake of taking the first hour and what happened there, and realising what happened let's say in the last hour or even two, and what happened there and projecting that over the whole of the 10 hours.

ADV BOSMAN: Thank you, Mr Visser, please continue, I just wanted to hear you on that.

CHAIRPERSON: Wouldn't Exhibit A also probably be of assistance here? He says after the slaps and what have you, and he provided them with an address.

MR VISSER: That's right.

CHAIRPERSON: They left, came back with a box and then the interrogation continued.

MR VISSER: Yes, yes. I think it fits into the general picture, not of a man being assaulted for 10 hours or interrogated for 10 hours on end - let me rather put it this way, assaulted and interrogated. He may well have been interrogated for 10 hours, he may well have been, but you heard what Mr de Kock said about Herman Stadler and there was other evidence about that as well, he was a non-violent man and while he was there, there were no assaults. So Chairperson with respect, if one had to speculate, one could speculate and say yes, he was assaulted for 10 hours and if that is so, we can draw the inference that he was assaulted in the way he says, or the newspaper article says in Exhibit A, but that would be speculation, it would not be based on fact and it would not be based on evidence. We had the evidence of those people who were present, to tell you exactly how he was assaulted.

And may I add, Chairperson, that in this amnesty process, if a man like Eugene de Kock comes to you today after he had broken both Mr Msibi's arms, as he said, and came and denied it, he would be more than stupid, because I mean whether he broke his arm or whether he didn't break his arm, he's still going to either receive amnesty or he's not going to receive amnesty. And in the light of all the other evidence, why would all the other witnesses, if this had happened that he became unconscious or that he was burnt with cigarette butts in the face or his hair set alight, why would not a single one of the others come forward and say that? You have to assume that all the other applicants are then dishonest about that. And frankly, Chairperson, there's no basis on accepting that all the applicants were ... In fact, I'm not arguing for Mr Schoon now, I'm arguing now for all the other applicants, so it seems to me, but it doesn't matter.

CHAIRPERSON: I thought you had a brief from your colleagues.

MR VISSER: Well they're certainly not going to pay me, Chairperson.

Chairperson, so that would be my submission, that one must just be vary of elevating speculation to evidence. One feels that one reads what is supposed to have been stated in an affidavit by Mr Msibi, and one wants to perhaps attach value to that, from a point of view that the man is now dead, he's not here to be able to speak for himself, but the reality of what we know in law, Chairperson, is people say things in affidavits, these applicants have all done so, which they later retracted and they explain that they did it for reasons, which may or may not be feasible reasons, but we don't know, and that is the real reason for the Rule of Evidence, that the evidentiary value of a document like Exhibit A, is of no value, except if it is corroborated, and it isn't corroborated in regard to the unconsciousness and the burning with cigarette butts, Chairperson, and we would submit that that is what you would then accept.

Chairperson, Mr Msibi was, as we know, held, and we've now dealt with how he may or may not have been assaulted. As I read Exhibit A, and the Honourable Chairperson has just pointed to this fact, he was assaulted, he gave an address, he was interrogated further and he was then brought to Vlakplaas, and he then talks about "the next day", which means that must refer to Vlakplaas, Chairperson, and everything that follows from the third column of Exhibit A must then, where he talks about "the next morning I was at a farm in Pretoria area", that farm must refer to Vlakplaas, Chairperson, there can be no doubt about that. And then he says he's interrogated by a Captain and two policemen and then he goes to, "during the evening" he was interrogated, and then only comes the cigarette butts nipped in his face and an attempt was made to set his hair alight, and he spoke about a necklace.

Now as it was pointed out during a question by Adv Sandi, all of this took place at Vlakplaas. And then he says he lost consciousness and his speech was slurred and slow as the interrogation ... And then "in the morning", which is again the next day, he had a headache and then he was booked into Brits Police Station, etcetera, etcetera. And he places the taking of himself to the Army camp, at a time much later, but he's clearly mistaken as far as that is concerned as well. It is quite clear on all the evidence here that he would not have spent longer than a day at Vlakplaas before he was taken away by Col Kallie Steyn. And the reason for that is a very simple one, if one had to draw inferences, and that is that National Intelligence were very concerned about, as Mr de Kock had stated here, their own informer who was a person above Mr Msibi, and they wanted him in their clutches as soon as possible, and obviously there must have been some pressure exerted and he was taken away by helicopter no less. So there was a measure of urgency to get Msibi away from the Security Branch of the Police, by National Intelligence, or it may even have been Military Intelligence, as it was suggested here by one of the witnesses.

Chairperson, I'm not sure whether there's anything else that I could really add to enlighten your thought process on this matter, or to make it easier for you to grant amnesty ...(intervention)

CHAIRPERSON: To make a decision.

MR VISSER: To make a decision. Chairperson, we would submit that the style of this particular incident is clearly in conformity with what the Act has in mind as far as proportionality is concerned. The assaults under those circumstances, were directed against Mr Msibi in order to extract information from him. It is quite clear on all the evidence that it was thought and probably with good reason, that Ms Msibi had very important and vital information which they could extract from him, and that is why they assaulted him. Obviously it can't be justified, but then in terms of the Act, you can only apply for amnesty for that which was not justified, in other words, which was an offence or a delict.

And it would seem, Chairperson, that there was a measure of success insofar as Mr Msibi did become isolated, he did become neutralised and in that sense we don't know what precise information was obtained from him, but even without that before you, it does seem that the action was proportionate to the end that was intended to be obtained, as the facts now lie before you. We certainly submit, Chairperson, that none of these applicants acted from an own personal motive, from ill-will or spite, they certainly were not rewarded in any way for this particular incident, and we would submit with respect, that the applicants in the present case complied with all the requirements and provisions of the National Unity and Reconciliation Act, Chairperson, in which event the Act says if you are satisfied of these requirements having been complied with, you shall grant amnesty for omissions and offences and delicts committed by such an applicant, Chairperson. We say, lastly, that there is no substance in any opposition that full disclosure was not made and we would ask then for you to consider granting amnesty as prayed for. Thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Visser. Any other additions or subtractions?

MR HUGO IN ARGUMENT: Mr Chairman, yes, may I can just tell you what the offences are that we're applying for. Obviously it's also the illegal crossing of an international border, abduction and kidnapping, the unlawful detention, assault, defeating the ends of justice, unlawful possession of firearms and ammunition and then added to that is malicious damage to property, and more specifically the car and the house in Swaziland. And then it flows from that that any other offences and/or delicts covered by the evidence and the facts.

Mr Chairman, Mr Visser has done all my work, or just about everything for me, what I just want to emphasise once more is that Mr de Kock was really, with all due respect, in a position of a conventional footsoldier, he was at the time a relatively junior ranking officer, he was a Captain, he had done his exams to be promoted to a Major, but for all practical purposes he was still a Captain. He was obviously acting on instructions and authority from very high ranking officers at the time, being Brig Schoon, there was a Brig Visser or a Col Visser at the time, and then Brig Stadler. And then something else that the Committee shouldn't, with all due respect, forget, was the impact of the presence of such a high powered contingent of senior officers at the time, it must have had a profound affect on Mr de Kock and the other footsoldiers, if we may call them that.

Mr Chairman, the question as to whether this was aimed at a political opponent has been addressed by Mr Visser, I don't think there should be any doubt about that, save to say that objectively speaking, I think you find corroboration for that in Exhibit A, where it says that there was a meeting, where Msibi says that he had this meeting with a security policeman, Vincent Malaza, and it's very clear what this meeting was all about. And then coupled to that is the fact that Mr Malaza defected once more and didn't come back, he actually escaped and it's clear that he went back to the ANC, or at least the inference can be drawn fairly safely, that that is what happened.

Proportionality, Mr Visser has also dealt with. It's very clear that this was not an operation where it was decided that Mr Msibi would be killed willy-nilly and it's clear that they applied their minds and they took various options into consideration and it was decided that an abduction would be the proper way to go about it.

As far as full disclosure is concerned and the severity of the assault, Mr Chairman, may I first say this as far as Mr de Kock's evidence is concerned. He was the first applicant that mentioned the fact that illegal weapons were used, he was also the first applicant that mentioned the car that was damaged, he came to the fore and he told you about the assaults at the border post as well as at Vlakplaas, and to that extent he was corroborated by the other witnesses. And I would suggest that there's a propensity on his side to tell the truth and to come clear, and it's very evident from his evidence.

Mr Chairman, as far as the severity of the assault is concerned, I've heard what Adv Bosman had to say and certain reservations that she might have, but we mustn't lose sight of the fact that from the outset, and it appears very clearly from the evidence, the aim of this particular operation was to abduct him and to bring him back to South Africa and to glean information from him. They were convinced of the fact that Mr Msibi possessed very valuable information. Now we know from previous experience what happens if assaults are being done in a serious manner and if these things are being done with a certain degree of severity, there's a very likelihood that this particular person could be killed in the process, and if he had been severely assaulted as it would appear from Annexure A, there was a very strong likelihood that he could have been killed and that would have defeated the aim and the objective of this particular operation. So we submit that apart from what Mr Visser had to say, that the applicants' version as to the severity of the assaults, must be accepted.

Another thing that came to mind was the fact that Brig Schoon said that Mr de Kock was the "voorslaner", as he preferred to refer to it, and you would have noticed that we didn't dispute that at all. It's not a nice tag to have around your neck, but Mr de Kock accepts that and he didn't try to deny that at all.

There's just one other twist to the tale here and that was the financial gain aspect that was mentioned by the legal representative of the victims. I don't think I should really address on that whatsoever. So Mr Chairman, those are really the submissions that we want to make. Thank you very much.

CHAIRPERSON: Thank you, Mr Hugo. Whoever wants to add or subtract anything, I must say I'm indebted to Mr Visser who really dealt with the aspects which we should look into if we were to grant amnesty, in which respects we should. So I don't think anybody should burden himself with that, unless you want to add something or subtract something.

MR LAMEY: Chairperson, should we just perhaps also list the offences in respect of our own applicants and ...

CHAIRPERSON: No, I've just that I no longer need that because they've been covered fully by Mr Visser.

MR LAMEY IN ARGUMENT: Chairperson, may I just take a moment just to add upon the probabilities which has been raised by the Honourable Committee Member, Advocate Bosman. My submission is that the mere fact that a person is detained for 10 hours, cannot lead to the only reasonable inference that he is continuously assaulted during that period, to the extent that we should infer as a probability that he lost his consciousness and as he described it in Exhibit A.

Chairperson, and I want to add here also to the submission of Mr Hugo, that one must not lose sight of the whole purpose of his abduction and that is that he was destined to be transported to Pretoria, where he would be handed over to the Intelligence section of the Security Police. In other words, had he been assaulted to such a severity as is claimed in Exhibit A, then it could have defeated the whole object of his abduction, because what is most probable is that further information, after he had been transported to Pretoria, regarding the network of police informers, was of utmost importance and was actually the main focus of this whole operation.

It's also very unlikely that after the short assault bout and after Mr Msibi gave the information of his house and that information to Mr de Kock, that the assaults would have continued the whole time in the absence of Mr de Kock. It simply doesn't make sense, because one would be inclined to think that the Security Police will wait to see whether that information which he gave was true and correct and will keep him in such a state that whatever is found at his home, could be followed up later during an interrogation.

And furthermore, there's this aspect that one must also not lose sight that he had to be transported to Pretoria, and being a covert operation, Vlakplaas acting under covert operations, must have been very vary that the risk is not taken that they could be stopped en route to Pretoria, by another roadblock or something which ... and the man being found in their custody being severely assaulted and injured. That would have been difficult to explain, Chairperson. So I think one should also have a look at those probabilities. Thank you.

CHAIRPERSON: Thank you, Mr Lamey. Anyone want to add a word? Thank you.

MR MAKONDO IN ARGUMENT: Thank you, Chairperson.

Chairperson, as it has been highlighted by, or very well said by Mr Visser, the political objective aimed at is clear, the person was a clear target, Chairperson, that is not denied even by the family. His involvement in the top structures of the ANC, it's now even well known, hence him as a target. However, Chairperson, there is a shadow of doubt in terms of the assault.

Chairperson, Mr Msibi was abducted. As it was clearly detailed by all the footsoldiers who were personally involved, it was not a kid-glove kind of operation, an assault cannot be ruled out. It's severity Chairperson, given the times, given the way the Security Forces ... the covert operations, they way they used to operate, the degree of the severity of assault cannot be ruled out.

Chairperson, the Head of the Eastern Transvaal, the then Eastern Transvaal Security was present. As Mr de Kock said, in 45 minutes or so they got the information which led them to where Mr Msibi was staying, hence my question to, I think it was Mr Visser, "then why did you continue with the assault?" One makes an inference, Chairperson, that they were not satisfied with the little information that they got. Mr Visser said that they wanted information that could assist them to react immediately. The fact that I'm staying in this house for one, two, three, four reasons, these are things that are there, did not satisfy them, obviously. What is it that will prevent further assault? There were no rules used here. What is it that will prevent anyone who was there to trample on his toes, to threaten him in any other possible way?

Mr Visser S J, he said he cannot remember exactly who assaulted him, but he remembered who did not and he could not remember the type of acts, that is the assault per se. A number of applicants, Mr de Kock included, Mr Visser S included, said "we don't rule out the possibility of him being banged against the wall, maybe during the shuffling:. The same it can happen with the toes being trampled on.

Now Chairperson, the time period, that is now clearer to us, anything can happen during that time. Mr Nortje, Mr Bosch, Mr McCarter, they said, "look we were outside but there was movement in and out". Why would you rule out that if one goes in he would snap a cigarette butt on his face, trying to extract information out of him? There were no rules. The senior police officers who were there, they were not having control over what was happening.

CHAIRPERSON: Wouldn't the cigarette butts come at, if I'm not mistaken, at Vlakplaas, not at Oshoek?

MR MAKONDO: Correct, Chairperson.

At Oshoek, when people were there, as Mr S J Visser said, they were there watching perhaps, which is unbelievable Chairperson, they were not keeping account of who is doing what to him. Frankly, they had this person who to them is not only an enemy, it's even a source that is giving them trouble ...(intervention)

CHAIRPERSON: He is an enemy, the biggest.

MR MAKONDO: As I said, "not only", Chairperson.

Annexed, Chairperson, in the bundle is the background given as to how much pressure the internal Security Forces were under. Now if you get a person on your hands of Mr Msibi's calibre, with that kind of information, what would you save, what rules would apply there? It cannot be ruled out, Chairperson, that most of the things or some of them, perhaps even all, did happen. He was a sporty fit person, losing consciousness and being able to regain it quick, cannot be ruled out.

Chairperson, Mr Msibi, given the way he was viewed by the Security Forces, Mr de Kock's department was given immediate action to act there and then. That shows how much they needed him.

CHAIRPERSON: Not that Mr de Kock's department was the one given, because they were experts in abductions and hence they had to come in.

MR MAKONDO: Plus that, Chairperson. However, the fact that they did not even give him enough time to pick up his people in time to make other proper ... they didn't even give him, not even 24 hours to make an arrangement. According to his version he was called on Friday and he was told to "please organise people, we are leaving to the border, to Swaziland." Because they had this information from Mr Malaza, they didn't even want to delay, they were afraid. There was infiltration, they perhaps thought before they act there could be, Mr Msibi might have known by that time, they needed him so much, they acted there and then. And it's the first day attempt, if we believe Brig Schoon and others, that actually it was to happen the same time when they got there, but it was delayed for other reasons, but as soon as it could happen it did happen. Now given that kind of a picture, what is that they will do with a person like Mr Msibi? After obtaining information, what are they going to do with him? Killing is not a possibility that can be ruled out.

It's my submission, Chairperson, that after getting Mr Msibi all the Security Forces needed from him was information, how to get that information out of him, it did not matter. It is known historically that how they operate, it cannot be ruled out in terms of what is being said in the paper. Vlakplaas, Chairperson, it's a notorious well known place. If what happened in Vlakplaas, which we don't dispute, is what has been told here today, almost everyone at some stage they lost contact with him, at some stage they don't know what happened to him. We know that he was moved from Mbabane to Oshoek, Oshoek to Vlakplaas, from Vlakplaas he was flown with the helicopter, ...(indistinct) to the military base there and then. Mr de Kock thinks so, we don't know.

He talks of the detention in Brits, nobody knows, and that's how the Security Forces used to operate. He talks of a Magistrate visiting him, meeting Judge Goldstone. Chairperson, that cannot be ruled out. Actually some of them, like with the instance of Justice Goldstone, it's known that he did meet him. During his moving around, what is it that was happening? Who was in control, was it the Military Intelligence? Mr Visser said. Was it the National Intelligence? Was it the Security Forces? But what was happening to him at that time?

CHAIRPERSON: ...(indistinct - no microphone) that it is a fact that he was moved around, at least we know that he was abducted in Swaziland, first taken to a plantation, thereafter to the clubhouse near the border, thereafter to Vlakplaas and that's all that these applicants are saying. Should we look further than that when we come to make our decision, to say when he was flown by helicopter, probably to Brits, we don't know, but that's the first place he apparently mentions and subsequently he went to White River. They know nothing about that. He subsequently died. They don't know, but Mr de Kock shed some light to us that when he was released actually he was approached by Buchner, who said, "hey look, speak to your askaris because we have neutralised the person."

But the point I'm making is that the decision we've got to make, doesn't it relate to the abduction from Swaziland into the Republic, and probably the assault? And Mr de Kock says in his evidence that, "I had to tighten my hand, after that ...", that is relating to the assaults, "... he gave us sketches of the place where he lived in Mbabane." Because I'm just worried about the elasticity that now we've got to look at Brits, probably White River and what Goldstone did, Justice Goldstone did, and probably the Magistrate, but I know that it is standard that during those times when a person was under Section 29, he had to be visited by a Magistrate. That I can tell you off the cuff, I know that. But I'm saying, in relation to what you are submitting, what we've got to look at, because the crux is that you say the duration is long, 10 hours, and can we believe that just for 10 hours they did nothing to the man who was a big fish and who was a big catch? Do I understand you correctly?

MR MAKONDO: ...(indistinct - no microphone)

CHAIRPERSON: ...(indistinct - no microphone) to Brits and what have you, because the evidence before us is very clear that they have no idea of all that. And if we look ...(inaudible) he does say, "I was taken by helicopter from Vlakplaas", and no mention, because he attempts at least to mention Mr de Kock, Capt de Kock, his involvement, that he could recognise this was Capt de Kock, but subsequent to Capt de Kock there he doesn't even in Annexure A tell us about his involvement, and that would relate to the other footsoldiers of the SPs. I want you to just confine from Mbabane to Vlakplaas.

MR MAKONDO: Chairperson, in terms of the footsoldiers as I've said, that is the area in which there can be restricted, but Chairperson, we have top structures involved here, people who, if he was a big fish as it is alleged, should have kept not only contact, but also you have information as to what happened. It is as Mr de Kock said, that there was a clash between the Director, Neil Barnard and whoever, as to how they handled him. Chairperson, they should have known. It is my submission, Chairperson, that they do know.

How could such a big fish be left out ...(indistinct), how could such an important person be cut ties with?

CHAIRPERSON: Shouldn't we treat the evidence fairly there, that it subsequently transpired that even Neil Barnard who was Director of National Intelligence, had interest in him, but the events that led to his abduction is that Mr Malaza was siphoning information to Mr Msibi and that led to suspicions about Malaza, and when he was taken to Daisy, that is Malaza, he came and said "this is the person who's handling me from the ANC", and it somewhat created some emergency, because some documentation, if you heard, was getting lost instead of probably being shredded, it went missing. Hence they called Mr de Kock, that "come to Daisy and some of the senior people", and after speaking to Malaza and promising that "look, we won't handle you in a bad manner if you can disclose this", that's when the situation became very urgent. That's how I understand it, I may be wrong. But if you could give me your submissions in that respect.

MR MAKONDO: Perhaps, Chairperson, I should clearly state that in terms of footsoldiers we don't have a problem, not only because they disclosed their involvement, we understand they were under instructions, but as we are saying, Chairperson, in terms of people who were giving orders, it's our submission that that is not full disclosure. Hence it's my submission that they should have kept contact and they should have known where this big fish is landing. He was quite a big fish.

This, Chairperson, is even made worse by the fact that a number of things are not known. For instance, Visser says he doesn't remember this and that, he's not too sure if this did happen or not. Hence our submission, Chairperson, that the top structures, the people who were giving orders, the people who were in the top level, should have kept contact of his whereabouts until to the end. Our submission, Chairperson, is based on the fact that it's still unknown as to who and why was Mr Msibi killed. It's out submission that the top structure knows, at least they should be giving us light as to that effect. Only Mr de Kock came to say Mr Msibi was sold by a top ANC official in the Intelligence of the ANC.

Having found the information that Mr Msibi was handling Mr Malaza, they should know who else was the person in charge in ANC who was giving them the similar information, and they should disclose that. That will assist the family to be able to trace, to follow up as to what led to his killing. His killing remains unsolved according to the family. He was just shot as Mr de Kock said, in a clean manner. ...(indistinct) the fact that the family got there and there were three or four cartridges that they picked up. The people who shot him never came to record, the inquest just went on like that. The family only got the information that the inquest is closed. And that is the basis upon which the submission is made, Chairperson, that the top structure knows. Directors, or whoever they were, ...(indistinct) of a very high level, who ...(intervention)

CHAIRPERSON: No, no, let's not make it that wide. We know for instance here that one of the people in the top structures was here, Mr Schoon. We don't have before us as applicants for instance, Neil Barnard, Stadler, Buchner, Johan van der Merwe, we don't have those people. The rest, other than, because you must view Mr de Kock, that even though he had passed his exams, he remained a footsoldier, so that would include him and other then the top structures here we would have Mr Schoon. Are you saying he should have?

MR MAKONDO: Even Mr Visser S J and Mr Greyling. Chairperson, everyone who could give orders should have kept the link. Hence our submission that they know.

CHAIRPERSON: Then we have evidence that they operated on the need-to-know basis. I don't know if you appreciate that need-to-know basis. You are given this instruction, it ends there, you don't have to question why, and when that person is abducted you don't have to ask why and what happened to him, that ...(indistinct) relay to the footsoldiers, you operated on a need-to-know basis. That's how loosely I could probably translate it.

MR MAKONDO: In terms of footsoldiers as I said, we have no problems, that is accepted, but not with people of rank, of high rank.

ADV SANDI: Sorry, just for my own clarity, Mr Makondo, I hear you keep on saying, I think you've said it for the third time now, "in terms of the footsoldiers we do not have a problem", is that to say that you are now withdrawing your opposition in respect of the people you have referred to as footsoldiers?

MR MAKONDO: Thank you, Chair. My instructions were that the family were satisfied, hence my submission that there is no problem, they have disclosed enough and that will imply that the opposition against them is withdrawn, Chairperson.

ADV SANDI: Who would not fall under that category of footsoldiers? Mr Schoon ...

MR MAKONDO: Let me say who the footsoldiers are according to my instructions, starting from Mr de Kock, Mr Nortje, Mr Bosch, Mr McCarter and Mr Vermeulen.

ADV SANDI: ...(inaudible) exclude Mr Schoon?

MR MAKONDO: That excludes Mr Schoon, both Mr Vissers, if I'm correct.

ADV BOSMAN: Where do you place Greyling?

MR MAKONDO: Chairperson, can I get clarity in terms of that, I had jumped him in my list, Greyling.

CHAIRPERSON: These are the people who applied for amnesty: Messrs de Kock, Nortje, Bosch, Schoon, Gert and Schalk Visser, Greyling and McCarter. You'll find that on bundle 2, the people who have. So I hear you that Messrs de Kock, Nortje, Bosch, and who else would you regard at footsoldiers?

MR MAKONDO: Including Mr Greyling, Chairperson, he will be included in them. The people who were senior people of rank are Mr Gert Visser, Jan Schalk Visser, Mr Schoon. Those are the people who, according to my instructions, Chairperson, with their ranks they should know and that could assist the family to at least get to the finality of the matter, because their problem Chairperson, is as I'm saying, the killing is not known.

Also Chairperson, they also have a problem that according to the application of ...(intervention)

CHAIRPERSON: Could I interrupt and say you assist us because we've got to make a decision. Probably there could be a private arrangement, but we've got to make a decision as to whether they do get amnesty or not.

MR MAKONDO: On the basis of what I'm saying, Chairperson, is that those ones should not, because there is no full disclosure from their side.

CHAIRPERSON: You may proceed.

MR MAKONDO: And Chairperson, perhaps in conclusion I should say the family, their problem is that not until this chain is linked, the end part of who killed their beloved next-of-kin, it cannot be solved.

However, Chairperson, I may take this opportunity and convey their gratitude to Mr de Kock, having filled the gap, having put a clearer picture of who their beloved, who Mr Msibi really was. It is their point of view that he always maintained that he did not defect and that he never gave information, he was never seen - it was his point of view that he has never sold his side and hence they are very grateful for that, Chairperson. That will be my submission, Chairperson, thank you.

CHAIRPERSON: Thank you, Mr Makondo. Ms Patel? Before you do ...(intervention)

ADV BOSMAN: May I just enquire from you, Mr Makondo, what the names of the next-of-kin of Mr Msibi are.

MR MAKONDO: The names are already given to the Evidence Leader, but I can read that.

ADV BOSMAN: No, no, that is quite in order if she has the names and all the details, we can obtain it from the Evidence Leader if needs be, thank you.

MR MAKONDO: Thank you.

CHAIRPERSON: You may proceed, Ms Patel.

MS PATEL IN ARGUMENT: Thank you, Honourable Chairperson.

Given the description by Mr de Kock of the late Mr Msibi, I think the loss to this country goes broader than to just him not being present today to make a contribution to this country, but him not being present today to shed light on exactly what had taken place during and after his abduction.

Now it is in this light that, given that we're a Enquiry, not a trial, the Rules of Evidence as alluded to by my learned colleague, Mr Visser, are indeed relevant. I will however, ask you to take into consideration that when considering the evidentiary value to be attached to Exhibit A, which to my mind is in fact the core upon which this application turns, I will ask you to take into consideration Mr de Kock's admission that Mr Msibi was not an askari, he had not become an informer, he was in fact a man of integrity, to take into consideration the circumstances which led to his abduction. Firstly, that Mr Malaza being one of their own technically, who had in fact turned against them, there must have been some measure of anger in terms of that. Then also take into consideration the fact that the operation was launched during the day. It was a dangerous operation, it was in fact successful, that emotions must have run high, that the adrenalin must have been pumping at the time that he was in fact abducted and then taken to Oshoek. That there were senior members present there. That the only information, as far as Mr de Kock and as far as we know at this stage, that was revealed during that period, was that he had in fact only handed over his address. That even after a period of being kept there for some 10 hours by the time Mr de Kock had in fact returned, he still at that stage had refused to give further information, in the face of the equipment that was in fact found. That given all of that and the number of people who were in fact involved and present at Oshoek at the time, my submission is that the probabilities of his version as we have it on paper, that is Mr Msibi's version, is in fact more probable than the version alluded to by the applicants here today. I will also ...(intervention)

ADV SANDI: Sorry, can I just come in there. Isn't it the major trouble here, that the version as you alluded to in Exhibit A, has not been tested under cross-examination here?

MS PATEL: The unfortunate position is that we are not in a position to test it and never will be able to, because Mr Msibi is in fact deceased.

ADV SANDI: ...(indistinct) one now is left with a situation where you have to be suspicious, you have to draw inferences and I don't think that is the way any tribunal is supposed to function. No tribunal is supposed to base its findings on suspicions and human experience of its individual members. One has to come to conclusions on the basis of what you have before you as a tribunal. We have one version here from the applicants, which has been subjected to cross-examination and the rest is suspicions. We can only be suspicious. I also have suspicions because I'm a human being, but I can't base my decisions on suspicions. ...(end of side A of tape)

ADV BOSMAN: ... draw our inferences from what is put in the document which has literally no evidentiary value, except that there's evidence that the documents exists.

MS PATEL: In response, Honourable Chair, my submission is not that you draft your decision on the basis of suspicion, my submission is on the basis of the probabilities, given the surrounding circumstances under which the man was abducted.

ADV SANDI: Sorry, whilst you're talking about probabilities, what is the cardinal role concerning the use of inferential reasoning? Doesn't it say an inference can only be drawn if it is reasonable and it must not only be reasonable, it must be the only inference that can be drawn in the circumstances, otherwise it may not be drawn? You cannot come to conclusions on the basis of ..(indistinct) speculations.

MS PATEL: Absolutely, and ...(intervention)

CHAIRPERSON: I think Die Blom(?) assists us very much in that respect.

ADV SANDI: Yes, thank you.

MS PATEL: Well then I will take it no further than that, except to say that if one takes into consideration the kind of character as alluded by Mr de Kock, that Mr Msibi was and that was in fact confirmed by many of the other applicants who have testified, McCarter yes, and I believe Mr Nortje ... and by Bosch, I'm corrected by my learned colleague here, by Mr Bosch, the probabilities of him breaking in a sense, are less if he had not been assaulted. And also if one takes into consideration that it took them months, many months before he was in fact released, so he wasn't somebody who was going to spill the beans quickly. And chances are that, well this is speculation, but given the time period in which he in fact was held, that he wouldn't have revealed sensitive information voluntarily and without some measure of serious assault. I wish to take it no further than that, thank you Honourable Chairperson.

CHAIRPERSON: Thank you very much, Ms Patel. Do you want to respond or reply to that, Mr Visser?

MR VISSER IN REPLY: Very briefly, Chairperson. First of all, to my learned friend Mr Makondo, the issue of the assaults, Chairperson, he has dealt with on the basis that it cannot be ruled out, that's the basis, it cannot be ruled out that Msibi was assaulted more seriously than what the applicants spoke about, etcetera. Now that takes the matter no further, except that it accentuates what the submission was in the first place, and that is that it is speculation, as Mr Sandi has also attempted to point out to Ms Ramula.

Now Chairperson, it is really clear and it's understandable, in my submission with respect, that what the family is concerned with here is who killed Msibi, and we can understand that. The difficulty which we have is the applicants here, Mr Schoon doesn't know and the others told you as well that they don't know. And what one must understand and what apparently my learned friend, Mr Makondo, doesn't understand is that there were divisions in the Security Police, you had Section A, Section B, Section C.

Now Section C was the so-called terrorist section, that is where Brig Schoon was the Commanding Officer and that is where Col de Kock fell under, together with his men. They were basically, if I can borrow his expression in that regard, they were the sharp end, they were the executionary part of the Security Police, but when Mr Msibi had been, and this is in fact what Mr de Kock said, after Mr Msibi had been abducted, his task fell away, he had nothing further to do, same with Mr de Kock. Msibi would then go to say, Section D, who was the Intelligence Section under Mr Stadler. Stadler might know what happened to Msibi afterwards. He would certainly have kept contact with him because there was a trial coming up, but not Section C, Chairperson, they would have nothing to do with him thereafter. And therefore my learned friend's suggestion to you that either Schoon or de Kock or anyone else in Section C, failed to make a full disclosure, because they ought to know, has no substance, has no ground for that submission.

ADV SANDI: Sorry, Mr Visser, you've made mention of a number of sections within the Police department, isn't it so that you also had the National Intelligence Service, you also had the Military Intelligence Service?

MR VISSER: Absolutely, Chairperson, I wasn't going to make it more involved than that. Staying just within the Police you could make it involved already, you have the Security Branch on the one hand and then you have the ordinary CID on the other. Once a man is locked up in a cell, he now falls under the CID, not under the Security Branch any longer. What happens to him there is largely dependant on vacancies in cells. Why was he, for example, held in Brits? One would wonder. It certainly had nothing to do with the Security Branch, they wouldn't have sent him to Brits, why would they do that? If they needed him, if they wanted to have anything further to do with him, I'm talking about Section C, they would have kept him here in Pretoria. They could have kept him at Vlakplaas. De Kock will tell you that they would have had facilities there to keep him there. No, they didn't keep him there. Why not? Because it wasn't their function any longer to have anything to further to do with him. And then, as Mr Sandi says quite correctly, you have Military Intelligence who is obviously involved in here, National Intelligence we know was involved here ...(intervention)

ADV BOSMAN: But didn't the Military - I thought this was part of the evidence, didn't they come to fetch him with a helicopter at some stage?

MR VISSER: That's the point, Chairperson, that's the point, and this supports the submission to you that Section C of the Security Branch, had nothing further to do with Mr Msibi. Therefore, they can't now be blamed for not knowing what happened to him or who killed him, they simply don't know.

ADV BOSMAN: Insofar as the two Vissers are concerned, I know that the two Vissers are not your clients, Mr Visser ...(intervention)

MR VISSER: It's not Visser SC, it's Visser S J.

ADV BOSMAN: ... but as far as the two Vissers are concerned, your argument would be the same, that they had a different interest, their interest was the leakage of information through Malaza.

MR VISSER: Well absolutely.

ADV BOSMAN: Yes, okay.

MR VISSER: Oh absolutely, absolutely, Chairperson. Thank you, Chairperson, that's all I wish to say.

CHAIRPERSON: Thank you, Mr Visser.

This brings us to the end of the applications of the eight applicants who appeared before us. I must firstly thank all the legal representatives who were understanding to spend their lunch in assisting the Committee, I thank you very much for that. I must thank you secondly, for the invaluable assistance in terms of argument that we would make our decision, we thank you very much for that.

To thank Mr de Kock, that you were able to tell us what kind of man Mr Msibi was and that he was a man of integrity who would never defect at any given stage. That is actually alluded to by the family as well. We thank you for your assistance therein.

I must turn to the family. I could glean from the argument of your counsel that you had greater interest in his subsequent death. The applicants we had before us had to do with his abduction and probably obtaining information which led to the apparatus found at his house. Other people had interest there. I sympathise greatly with you, because it is generally believed that when people come and make application, you would get the whole story, but the story goes three-quarter way and in, if I may believe that Exhibit a is an affidavit made by your beloved one, he does state that he was released, at least a measure of satisfaction emanates from that, that he did not die in the hands of the police whilst in detention or from the time he was abducted until he was detained. He does say too that, "I was later released". I have great sympathy with you people, but I must congratulate you for the courage you have had, it's not an easy thing, you would have wanted this to be buried. This relates to no less than 12 or more years that those wounds should be re-opened, but you have taken them with great courage. We thank you for your participation in this matter.

We are going to reserve our decision, because in terms of the legislation that brought us into existence, we are required to give a written decision. I sincerely hope this will not be done with undue delay, it will be given as soon as possible, that everybody involved should know which way the wind blew and we shall blow it as soon as possible.

I thank everybody for their participation and the manner in which everybody acquitted himself in this hearing. I must thank you, Mr Visser as SC this time, not as J, to have taken the ...(indistinct) to present the larger portion of the argument. Thank you very much. We adjourn.

--------------------------------------------------------------------------ON RESUMPTION

CHAIRPERSON: Good afternoon. We thought that our material is here, we do not have, could you bear with us just for another two to three minutes.

The Panel will proceed to hear the applicant, Mr Eugene Alexander de Kock, amnesty application number 0066/96. The Panel is myself, Motata who would be chairing these proceedings. On my right I have Adv Bosman and on my left I have Adv Sandi. I would request the legal representatives to place themselves on record and I will request the legal representative of Mr de Kock to start.

MR HUGO: Thank you, Mr Chairman. My name is S W Hugo, I'm acting and appearing on behalf of Mr de Kock in this matter.

CHAIRPERSON: Thank you, Mr Hugo.

MS CAMBANIS: Thank you, Chairperson. My name is Crystal Cambanis, firm Nicolls, Cambanis and Associates, acting for the victims in this matter, namely Gen Solly Shoke and Charlotte Shoke. Thank you.

CHAIRPERSON: Thank you very much, Ms Cambanis.

MS PATEL: Thank you, Honourable Chairperson. Ramula Patel, Leader of Evidence.

CHAIRPERSON: Thank you. Is there anything before we commence or swear Mr de Kock in, that you may wish to place on record, Mr Hugo?

MR HUGO: No, nothing Mr Chairman, we're ready to proceed once he's been sworn in, thank you.

CHAIRPERSON: Ms Cambanis, anything?

MS CAMBANIS: Nothing, thank you, Chair.

CHAIRPERSON: Ms Patel?

MS PATEL: No, thank you Honourable Chairperson.

EUGENE ALEXANDER DE KOCK: (sworn states)

ADV BOSMAN: The applicant has been sworn in, Chairperson.

CHAIRPERSON: Thank you, Advocate Bosman. Mr Hugo?

EXAMINATION BY MR HUGO: Thank you, Mr Chairman.

Mr de Kock, you are the applicant in this matter which is known as the attack on a transit in Mbabane, Swaziland, is that correct?

MR DE KOCK: Yes, that is correct.

MR HUGO: Your application appears in the bundle from page 1 to page 9, and then there is also a reaction to a request for further particulars, in the form of a supplementary affidavit which you have filed and which appears on page 9A to D, is that correct?

MR DE KOCK: That is correct.

MR HUGO: And then you also request similarly, that the supplementary affidavits which you made dealing with, among others and firstly, the general background, the political motivation, as well as a further affidavit which you filed with regard to Vlakplaas, should also be regarded as incorporated with your current application.

MR DE KOCK: That is correct.

MR HUGO: Very well. Before we proceed with the particulars of this operation, there has also been a request with regard to further particulars, as to precisely which date you could fix to these events ...(intervention)

MS CAMBANIS: Sorry to interrupt my learned friend, when he refers, perhaps he can clarify, the supplementary affidavit to which he refers, which document is that please?

CHAIRPERSON: In terms of the paginated documents?

MR HUGO: Sorry, Mr Chairman, the first supplementary affidavit is these ones, pages 9A to D, those ones were inserted as part and parcel of the present volume. The other supplementary affidavits that I refer to are the general ones that don't form part of this particular affidavit, but you will recall that is the general background, his history as to where he was born and his career details, etcetera. And then there's a further affidavit where he dealt with Vlakplaas, etcetera, which I'm not sure whether my learned colleague has that or not.

CHAIRPERSON: Yes, Ms Cambanis, what happened is that before we started with the applications which relate to Mr de Kock and others, we felt it would be a lengthy process, that is the Amnesty Committee, there was a special hearing where the details which Mr Hugo is referring to, where it was captured, so that when we come to the actual applications, even though there would be different Panels to that, that background is actually captured. So it wouldn't be before you per se, unless you have been involved in others.

MS CAMBANIS: Thank you, Chairperson, the Evidence Leader has referred me to a supplementary document containing 216, which she assures me is the document to which Mr Hugo is referring.

CHAIRPERSON: We are indebted to you, Ms Patel, thank you very much. So that covers your concern.

MS CAMBANIS: My concern is over, thank you Chair.

CHAIRPERSON: Thank you, Ms Cambanis. You may proceed, Mr Hugo.

MR HUGO: Thank you, Chair.

Mr de Kock, we were trying to determine a more precise date for this incident, could you tell us whether or not you cold recall it precisely.

MR DE KOCK: No, Chairperson.

MR HUGO: Could you at least tell us whether or not it was in the middle or the early or the late '80s?

MR DE KOCK: I would say that it was any time from 1986/'87 onwards.

MR HUGO: You say in your affidavit that there was a request for an operation to be launched on a certain prominent person, can you recall firstly, who made contact with you regarding such a request?

MR DE KOCK: It was a person by the name of W/O Labuschagne, who was attached to the Security Branch of Middelburg and he made this request. I conveyed his request to Brig Schoon and he gave me the necessary permission to continue and to assist W/O Labuschagne with this operation.

MR HUGO: Very well. I think you are aware of the fact that the family greatly desires to be made aware of the precise particulars and circumstances regarding this operation. Would you tell us in as much detail as possible, according to your recollection, what the nature of the request was that Labuschagne made to you.

MR DE KOCK: The nature of the request was that this person by the name of Jabu, was responsible for the provision of arms and ammunition and explosives to the members of the ANC who were infiltrating to the Transvaal, and that we had to kill him. That was the request. And we then made the arrangements as such ...(intervention)

MR HUGO: I beg your pardon, before we get to the execution of the operation, let us try to determine further particulars regarding his request. You have stated that there was a request for Jabu, as they conveyed it to you, that certain actions should be launched against him. Did Mr Labuschagne give you any indication based upon what this request was being made to you and from whence they had obtained information pertaining to Mr Jabu's activities and what he was involved with?

MR DE KOCK: There were reports, there were security reports regarding this person's activities, but Mr Labuschagne also had a source who was well connected with this person, not necessarily with the handling or transportation of the arms, ammunition and explosives, but he had access to the person, so he could monitor his movements. The decision was then taken to make use of former ANC members ...(intervention)

MR HUGO: I beg your pardon, let us try to cover this aspect as thoroughly as possible. Did Mr Labuschagne give you any closer particulars regarding who the source was, where he was located and what he was involved with?

MR DE KOCK: No, Chairperson.

MR HUGO: Did he however tell you that there was a source based upon whom he had given you this order?

MR DE KOCK: Yes, Chairperson, he had more than one singular source. The source that I was aware of was the source who would be able to tell us when this person would be at home, if he would be alone, or whether there was a group of persons. I wouldn't be able to tell you that this specific source knew where the arms and ammunition were or what sort of arms and ammunition there was, but this was a source who had access and who could inform us of when Jabu would be at home and when it would be a suitable time for us to launch this operation.

MR HUGO: Did he give you any indication whether or not this source was apparently a member of the ANC at that stage?

MR DE KOCK: No, the source was not a member of the ANC, he may have been inclined towards the ANC, but he was certainly not a member.

MR HUGO: And did he give you an indication of whether or not the source was in Swaziland or in South Africa?

MR DE KOCK: The source was in Swaziland.

MR HUGO: Did he mention any name?

MR DE KOCK: Chairperson, no, he did not mention any name.

MR HUGO: Did you ever ask him for any particulars regarding this source in order to determine for yourself who the person was?

MR DE KOCK: Not necessarily, people were very jealous of their sources and were rather protective as such. One could make inferences, but inferences could be lethal, because one could never be quite certain of such inferences.

MR HUGO: Did you later establish any contact with this source?

MR DE KOCK: At a later stage I did meet a source of his and I understood that this was probably the same source. The source also provided information regarding other ANC members' homes and their whereabouts and when they would be at such places.

MR HUGO: What is your attitude regarding the disclosure of this person as the person who provided the information, here today at these proceedings of the Amnesty Committee?

MR DE KOCK: Chairperson, he was a source and there was a contractual, although not written, but moral agreement that sources would not be disclosed. This simply wasn't done. Many of these sources were most probably taken over just like that by the current Defence Force and Police, and perhaps they may be applied in a different way at present, still at the behest of the State, but on a moral basis, one would never disclose the identity of such a source.

MR HUGO: Do you think that such a person's life could possibly be jeopardised if his identity were to be disclosed?

MR DE KOCK: Yes, I believe so.

MR HUGO: What would your attitude be if the Honourable Committee felt that this could indicate an improper disclosure, would you be willing to write the name of the source on a piece of paper and hand it over to the Committee?

MR DE KOCK: Yes, I would.

MR HUGO: Very well. Mr de Kock, ...(intervention)

CHAIRPERSON: We would appreciate that after probably today, would that be possible, Mr de Kock?

MR DE KOCK: Yes, Chairperson, if I could just be assured that the name would not be spread any further.

CHAIRPERSON: I give you the assurance that the name will remain in my possession.

MR DE KOCK: Very well.

MS CAMBANIS ADDRESSES: Chairperson, I'm totally bewildered by this attitude. We all know the Act off by heart after all these years, we all know that the requirement is full disclosure. The entire point of these hearings taking place is that

the entire truth be told, not only to the victims but to the South African public at large. There is absolutely no point of victims or their families attending these hearings to hear the truth and to then decide whether they continue in their opposition or not, based on the requirement of full disclosure if the legal representatives and the victims themselves are not given the name.

CHAIRPERSON: Would you - firstly, just to ask you this question, would the name in knowing the Act, also fall within the ambit of full disclosure, just the name, but if the details are given, it's just the name that is withheld? I'm asking you this because the safety of these people is mentioned and again, Mr de Kock has just said some of the structures of the present government like the Defence Force, for instance, such people have been employed. In the name of full disclosure and reconciliation, wouldn't we be jeopardising the positions of such people?

MS CAMBANIS: Chairperson, there has to be a balance in this process. My client is presently also serving in a military position in the present South African SANDF, his safety is also a factor. One of the reasons as well is that the Swaziland community, like I'm sure many of the other States, is a close-knit community, his entire interest and that of his family is to know precisely this information of who the informers were, who the, the command structures of what was happening in Swaziland, and it is also in regard to his personal safety, because he's probably also dealing, or may be dealing with these people and South Africa's entitled to know who's who. Or else, with the greatest respect, Chairperson, I don't know what the purpose of these hearings is, other than this.

CHAIRPERSON: Let me hear Mr Hugo.

MR HUGO ADDRESSES: Mr Chairman, the position is quite simply this. During this whole process this thing has come up on numerous occasions and as far as I know it was never, never decided by the Amnesty Committee that the names of informers should be divulged. I was involved in a hearing in Durban where this also came about and to the best of my knowledge it was also resolved on the basis that the name would be written down, be given to the Amnesty Committee and that they would then decide as to what they're going to do with that information. With the proviso though that the particular person or the particular name that was mentioned, it was agreed by the parties that that person's life could be in danger and eventually it was then decided that the matter would be postponed to enable that person also to be afforded the opportunity to be subpoenaed and

to have insight into the record and decide as to whether he or she was prepared to come and testify. But the Amnesty Committee was quite adamant that they were not going to take the responsibility of divulging that particular person's name and endangering that person's life.

We are obviously in a tight spot here in the sense that we want to give as much information as we can about this, because if we don't do that, it could be to the applicant's detriment, but then on the other hand there is this moral duty not to divulge it in open Court here. So the best that we can do is to write it down and to give it to you and then the Amnesty Committee must decide what they're going to do with that.

CHAIRPERSON: With that in mind, Ms Cambanis, the last portion of what Mr Hugo has said, would you agree with that kind of arrangement? And again, I must point out that if you go through our decisions, we may merely make mention of an informer, we have never disclosed names of informers. I don't know if you are aware of that.

MS CAMBANIS: No, Chairperson, I'm not aware of that and I will ask, after I've addressed you now, to take a short adjournment to take instructions on whether we should even continue in this. But what I would like to place before this Honourable Committee is that Gen Solly Shoke is a member of the ANC, at the time he was a member of Umkhonto weSizwe, his wife is similarly a member of that organisation.

In preparation for the TRC process, Gen Shoke was one of the people who was personally involved in compiling the submissions submitted to this Commission on behalf of the ANC, which documents we all know run into hundreds and hundreds of pages. There are annexures listing names, there are - I do not have the bundles now, how many annexures in which the ANC made every attempt to disclose every bit of information that they could, where it was not certain, they put an annexure saying that we're not sure, where it definitely wasn't then, they disclosed this. It is not the fault of Mr de Kock that his leadership has failed to do that, I do not hold Mr de Kock personally or in any way responsible that there is no similar documentation that has come from one of the other forces in this process, but I would assume that the intention of this is that at least Mr de Kock, in the absence of his leadership having submitted documentation and in coming to this Committee asking for amnesty, would at least himself be prepared to say what is within his knowledge.

CHAIRPERSON: Whilst he was talking about the moral contract, he said even the person who was brought to him, he is not positive, but he was told this is so and so. Am I following correctly here? I think that was his evidence.

ADV SANDI: I thought his evidence was to the effect that the name of the informer was not given to him and he subsequently met a person whom he used as an informer and he suspected that this could have been the informer Mr Labuschagne had spoken about.

CHAIRPERSON: I'm just looking at my notes now, that is correct, the name was not mentioned to him, but he suspected. Would suspicions take us any further, because we might just be harping on a wrong tree, or barking up one?

MS CAMBANIS: Judge, I'll ask for a short adjournment, I would like to take instructions from my client as to whether they wish to proceed or whether they wish to withdraw their participation.

CHAIRPERSON: Very well, we'll take a short adjournment.

EUGENE ALEXANDER DE KOCK: (s.u.o.)

CHAIRPERSON: Thank you. We have reconvened after a short adjournment requested by Ms Cambanis, to consult with her clients. I don't know if you have finished your submissions.

MS CAMBANIS: Thank you, Chair. And I thank you, it was much longer than five minutes, I appreciate the Committee's

indulgence. We view this as a fundamental aspect to the process. My instructions are that the name of the source must be made public and known to the family at these hearings.

CHAIRPERSON: Thank you. Ms Patel?

MS PATEL ADDRESSES: Thank you, Honourable Chairperson. Honourable Chairperson, it is my respectful submission before you as it has been before other Panels or other Committee Members, that full disclosure in my opinion, requires that all necessary and material information is revealed to us. It is my submission that the withholding of information of this nature, certainly detracts from that requirement. I know that in the past we've taken a very narrow approach to what full disclosure means ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone)

MS PATEL: ... in the sense that it has often been required only for the applicant to reveal specifically what he has done and not necessarily what those perhaps in his department would have done in a specific instance. So in that sense I refer to the application of the meaning of full disclosure.

I do however believe and share the sentiment along with that of many of victims who I've represented in the past before the Amnesty Committee, that it is a source of great ...(intervention)

CHAIRPERSON: I would listen only to submissions, not beliefs.

MS PATEL: Alright. It is my submission then, given my instructions from clients in other matters where we have come across a similar position where applicants have refused to reveal the names of the informers, they have left the process feeling done in, feeling that the truth hasn't been revealed. And in essence, if one looks at the Preamble to our Act, it is our primary objective to ensure inasfar as possible, that the truth is revealed, Honourable Chairperson.

I appreciate however that in this situation, given that Mr de Kock has said that he is not absolutely certain that the person who he liaised with was in fact the informer in respect of the specific incident that we are dealing with now, that that may change the way we deal with, or approach this matter. However, I do believe that in principle, applicants ought to be compelled to reveal the names of informers. Thank you.

CHAIRPERSON: Just to ask you since you referred to the Preamble of the Act, I would just say, starting from the fifth line after the semicolon:

Would that, when you say all material facts, and say the name would fall within that category of all relevant facts? Mr de Kock did not say with certainty that this was the person, he's acting on suspicions as well and I may be wrong, I did not hear him to say he confirmed with Labuschagne whether this was the person whom he referred to as his source.

MS PATEL: Certainly Honourable Chairperson, that is why I said I appreciate that the facts of this case may lead us, or you, to consider factors as in the safety of person, revealing the name of a person whose life could be in jeopardy, where we are not absolutely certain that that is in fact the person who was the informer.

My submission were made to you on the basis of a principled submission that generally the names of informers where we are certain or where the applicant is certain, ought to be revealed to us as part of the onus on the applicant in meeting with the requirements of full disclosure.

CHAIRPERSON: Thank you. I'd rather handle this unconventionally, I must be honest with everybody. And again I would say on the basis of what Ms Patel has said, that Ms Cambanis will have a bite and Mr Hugo will have a bite, but we'll start with you, on the basis of what Ms Patel has said and my questioning of Ms Patel.

MR HUGO: Mr Chairman, sorry, I'm not sure as to exactly what, do you want to me to say what our view is as far as this situation is concerned?

CHAIRPERSON: No, no, I have read a portion of the Act, that the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective, would that inter alia include even the giving names, would that be material? And on the basis again, Mr Hugo, that my understand of the evidence thusfar, is that Mr de Kock is not certain whether this was the informer which Mr Labuschagne referred to.

MR HUGO ADDRESSES: Mr Chairman, as far as that is concerned, Mr de Kock said he will testify to that effect, that he had some dealings with this particular person, that made him believe that this was the informer. So subsequently it was fairly sure and certain that that was the informer that gave the information to Mr Labuschagne. So that will be the evidence if needs be.

Can I just say, Mr Chairman, as far as the relevancy is concerned, I'm also acting for some victims and I've been giving

this a bit of thought. Some of the victims could, for argument's sake, say that they want to cross-examine this particular informer, with the view to try and establish for instance, whether this whole operation was not a set-up on behalf of the Security Police to get money for instance. So there are various possibilities here. So I think the relevancy can be accepted that it could well be very relevant to get that sort of information.

But I do want to say is, we're also not only busy with truth but we're also busy with a reconciliation process and if a person, if that name is divulged, I'd think it will be very difficult to have a reconciliation process. On the other hand I suppose you can also argue that that will enhance the reconciliation process if they were to meet. I don't know.

But can I just say from our point of view and my personal point of view, I think I'm duty-bound not to disclose that name in open Court here. Our approach is that we've written the name down here on this piece of paper, we're quite happy to give it to the Panel and the Panel can then decide as to whether this is necessary to be divulged in open Court, with the consequences that flow from that. We're really between a rock and hard place here, in the sense that we're asking this Committee to grant us amnesty, but we understand and appreciate the dangers that are inherent in divulging this information. So we feel that we should leave it in the hands of this Committee to a large extent.

CHAIRPERSON: Thank you, Mr Hugo. Would you have a bite again?

MS CAMBANIS ADDRESSES: Chairperson, we would find it highly questionable about why Mr de Kock would not want to disclose the name, but I think the Chair is asking specifically about full disclosure, whether it's a relevant fact, is that the question?

CHAIRPERSON: That's right.

MS CAMBANIS: Going to full disclosure.

Chairperson, I have no words to say, except it speaks for itself. Yes, it is a relevant fact.

CHAIRPERSON: I was asking that because to me it doesn't. Otherwise I wouldn't have.

MS CAMBANIS: Chairperson, for example, in the course of cross-examination, the source is in all probability known to members of the ANC, it would be someone that we would have come across. The only way that we can find out whether Mr de Kock has made full disclosure is to test the veracity of the statements he making. If that source turns out to be someone that we know died in Moscow in 1976, then it would have a great impact on his application. It goes to cross-examination

and testing the veracity of Mr de Kock's disclosure, and to that extent it is crucially and essentially relevant. Thank you, Chair.

CHAIRPERSON: Thank you.

CHAIRPERSON: ... and we have been told from time to time that ...(end of side B of tape)

... who are under the Department of Correctional Services. We shall reserve our ruling and we'll give it first thing tomorrow morning. We'll start at nine promptly to save on time, that probably what we had to do today we can catch up on that.

MS CAMBANIS: Chairperson, thank you. I have an unusual request given the situation. Mr Solly Shoke has asked if he may shortly address the Committee on this point. I don't know if that will be allowed.

CHAIRPERSON: I suppose in the interests of this process, that we seek to reconcile, that strictly speaking you wouldn't have this in a court of law, but since this is an Enquiry, we would indulge him.

MS CAMBANIS: We thank you, Chair.

GEN SHOKE ADDRESSES: Thank you, Mr Chair.

I would like to place on record that I've got nothing against

Mr de Kock as a person, but I come in fact from the former liberation movement, I was party on behalf of the ANC, on drafting a document where we disclosed the names of people who were involved in operations and we are fully aware of the implications or the consequences that it might have on those names, but however we disclosed that for the purpose of reconciliation.

During the hearings of the Maseru raid, the name of an informant was disclosed and I think Mr de Kock was party to that and I appreciate that. I'm a victim in this particular instance and I don't begrudge anybody, but I would like to know who the informants were. For the mere fact that Mr de Kock made an application for amnesty, I believe that in fact it is in his best interest to disclose other people who participated with him in this operation.

You've made mention of Labuschagne and for your information I've met Labuschagne and I know Labuschagne has done in the past and I don't begrudge him, despite the fact that he's not here today. And I see no reason why this particular name is being kept secret, because at the end of the day, in my own opinion, I feel that informants of this nature, if they are not exposed, they are susceptible to blackmail. They can later be used for other deeds, because people will always blackmail them, that you no, either you do this or I expose you. Thank you.

CHAIRPERSON: Thank you, Mr Shoke. Just to put the record straight, we just stopped at one name, I can assure you that the evidence that we believe would be led, would impact on the attack itself, but right now we are just at the stages where information was given by one person and that's where we are, the name of that person, whether we should give it, what our ruling would be in that respect. But obviously I can assure you that when he testifies we would want him to say with whom did he execute the operation. Thank you for your input, we are indebted to you.

Thank you, we adjourn.