PROCEEDINGS HELD AT
ON 15 AND 16 OCTOBER 1996
[PAGES 1 - 130]
I N D E X
NO ITEM PAGE N°
1. Opening addresses............................................... 1 - 19
2. BRIAN VICTOR MITCHELL
Questioned by Mr Naidoo................................ 20 - 24
Questioned by Mr du Toit................................ 24 - 78
Questioned by Mr Naidoo................................ 78 - 79
Questioned by Mr Brink.................................. 79 - 81
Questioned by the Chairman............................. 81 - 88
Questioned by Mr Commissioner....................... 88 - 95
Questioned by Mr de Jager.............................. 96 - 98
Questioned by Ms Commissioner....................... 99 - 104
Questioned by Wilson J........................................ 104 - 105
3. Cases for Applicant and Respondent closed................. 105
4. Address by Mr du Toit.......................................... 106 - 123
5. Address by Mr Naidoo.......................................... 123 - 128
6. Address by Mr Brink............................................ 128 - 129
7. Reply by Mr du Toit............................................. 129 - 130
CHAIRMAN: We are met here to consider the application of ... (incomplete)
MACHINE SWITCHED OFF
WILSON J: As the applicant and his legal advisers are aware I was the Judge who tried him and convicted him, and am now sitting as a member of the Committee to consider amnesty. I don't know if there are any other interested parties who are now aware of the fact that that is the position. In my view the issue to be decided now has no relationship to the question of the applicant's guilt or not. That is a separate issue, and I have not felt it necessary to recuse myself, but I am quite prepared to hear what anyone may have to say on that issue, and I would invite you, Mr du Toit, to make known the applicant's attitude.
MR DU TOIT: Thank you, Mr Vice-Chairperson. We have considered this matter and my client, as are we, is of a view that there is no doubt whatsoever that you will bring to bear on the facts placed before you an objective discretion, and we are quite happy that you should sit. We are also of a view that your knowledge of what happened on that fateful evening will be of tremendous use to the other Committee Members, and we have therefore decided that not only do we not bring an application for you to recuse yourself, but we express confidence in your presence here.
WILSON J: Does anyone else wish to say anything in this connection?
CHAIRMAN: Mr Brink, do you have any views on the matter?
Yes, we may now proceed.
MR BRINK: Mr Chairman, at the outset I would like to apologise for the lateness of the start of this inquiry,
the reason being that the next of kin and victims were apparently delayed by reason of the roads being extremely wet, and they come from a fairly remote area.
I'd like to thank my learned friend, Mr du Toit, his junior and his attorney for the considerable assistance given in the preparation of the record in this matter, which has saved the somewhat understaffed staff of your Committee considerable work, and of course time and money, and I appreciate their assistance in this regard.
Mr Chairman, Members of the Committee, as you know the applicant makes application for amnesty in respect of 11 counts of murder for which he was convicted and sentenced in the Pietermaritzburg Supreme Court in April 1992. He is also asking for amnesty in respect of two attempted murders, and also for the crime of arson, in respect of which crime he was not charged.
All these events took place - all these events occurred on the night of the 2nd/3rd December 1988 in a place known as Trust Feed in the district of New Hanover, at a time when the applicant was the station commander of the New Hanover Police Station, and the events have since been stigmatised as the Trust Feed Massacre.
If I can refer you, Mr Chairman, Members of the Committee, to Volume I, page 8, of the application. You will see under the list of names of those deceased appear two persons, Ida Hadebe and Numbagoli Zulu, who were the complainants in the attempted murder charge. All these people have been notified, and indeed I have called the roll. They, together with those appearing on page 9 of
Volume I - you'll see those are other interested parties -have been notified. I should indicate that the name of
the deceased, B R Makhatini - that's at No 71 on that page, page 9 - he has since died, but his family were advised. The police sent me a fax indicating that they were all advised of the hearing today, and they indeed signed an acknowledgement in respect of the advice given to them. In regard to the witness No 89, or the next of kin rather, on page 9 - that's No 89 - this person is also dead, but his family have been informed. In regard to No 86, that is a duplication of No 54 on that page, Mr Chairman, Members of the Committee. In regard to the witness No 87, that is a duplication of No 56, and in regard to the witness No 88, that is a duplication of No 55. I understand from the briefers from the Rehabilitation and Reparations Committee that the witness, Ntombolo Rose Makhatini had not arrived this morning. Joseph Makhatini had not, and Hlupegile Peregrine Xulu likewise had not, but they might be arriving at a later stage, and I can ascertain that during the short adjournment.
Now, just to put the Committee in the picture regarding the settlement known as Trust Feed, I should refer you to the judgment of the Trial Court, which appears in Volume II at page 383 the following, and I just paraphrase what the Trial Court found. I don't intend to be long, but it was established during the course of the trial that the Trust Feed area was a so-called black area, and a number of black people bought land in that area in the early part of this century. It was intended they would farm it, but nonetheless they rented the land owned
by them out to tenants. At a later stage the tenants began to assert what they considered to be their rights,
and they formed a Crisis Committee. In short the bulk of the landowners at a much later stage sought the assistance of the Inkatha Freedom Party, and the bulk of the tenants forming the Crisis Committee sought the aid of the United Democratic Front, and that caused a certain amount of difficulty. But nonetheless at the time when the events with which you are concerned took place Trust Feed was a -to quote the Trial Judge - a haven of peace.
And in conclusion, in regard to the opening remarks, Mr Chairman, Members of the Committee, I wish to say that despite a strong recommendation by the Trial Judge - and this appears in Volume III at page 631 and following pages - that there be a full inquiry by the police relating to what appeared to be a cover up in the initial investigations of the murders and attempted murders, no such inquiry has ever taken place. There were undertakings by the then Minister of Law and Order that such would take place, but nothing has been done.
I received a telefax from a senior member of the South African Police Services the other day, who indicated that a captain who was accused No 1 at the trial, and who was acquitted, was subsequently promoted to the rank of major; that Superintendent, as he is now, van den Heever, who was accused No 1 at the trial, has now been promoted to that rank; and on the instructions of the Commissioner-General, that is Commissioner van der Merwe -the then Commissioner-General - Lieutenant General Basie Smit and a retired Regional Court Magistrate, a Mr Krugel, had consultations with the Attorney-General in this
province, and following that no departmental steps were taken against Superintendent van den Heever. This matter
is now with the Investigative Unit, who have issued a subpoena on Lieutenant-General, as he then was, Basie Smit.
That concludes my opening remarks, Mr Chairman.
CHAIRMAN: Mr du Toit.
MR NGOEPE: Sorry, Mr du Toit, before you get onto it, can I just - I want to respond to some of the opening remarks by Mr Brink. Mr Brink, with regard to the, as it were, return of service that you have there, I understood you to say that the report says that the police informed the interested parties that there would be this hearing today. There is something that is deeply troubling me about this whole business, and that is that that is not what the Act says people must be told. The Act does not say that the people should just be told about the date of the hearing. The Act wants the families of the victims to be informed of much more than that. In faction section 19 (4) says that the - that in a prescribed manner the victims or persons, etcetera, having interest in the application must be told when - the time when the application will be heard and considered, and then these people must be informed of their right to be present at the hearing and to testify, adduce evidence, and submit any article to be taken into consideration. In other words the real purpose of this is that people must be appraised of their rights, not just to come and make a cosmetic appearance before us, or at the ... (inaudible) ... the victims and their families must be appraised of their rights, and what their right is all about.
MR BRINK: Mr Chairman, Members of the Committee, I have interviewed all the next of kin present when they arrived this morning. I have explained their rights to them. I have advised them that they are entitled to give evidence, that they are entitled to be represented, but because there are so many of them I suggested that amongst themselves they elect one, or possibly two representatives to testify if they so wish because of the constraints of time - this matter is set down for two days - if each and every one of them come. But if they wish to they are at liberty to do so. They understand their rights. It was interpreted to them by members of the - briefing members of the R and R Committee, so they are fully aware of their rights, I can give you that assurance.
MR NGOEPE: I am not sure I understand what you mean. Are you saying that you have fully appraised the families, the victims, of their rights, and the fact that if they so wish they could have legal representation? Are you saying they have been so appraised of their rights?
MR BRINK: Yes, Mr Chairman. I told them - they all came here. These are people who come from a very remote area, so a Form 2 couldn't be posted to them. There are very few - in Trust Feeds there are no postal addresses. It was as a result of the assistance I received from a member of the Attorney-General's staff that I contacted a Superintendent Marion, who was involved in the investigation at a later stage in the trial. Superintendent Marion knows all these people, and he gave them notice of the venue and the date for hearing. These people were to have been here at 9 o'clock this morning. I personally spoke to Mr Mbongwe, who is an educated man,
/he is a
he is a schoolteacher, who is the victim in the arson matter. I spoke to him and confirmed in writing, so he was fully aware of that. But as far as the rest of these people who are in the hall are concerned - those are the next of kin and the victims - their rights have been explained to them and they propose, as I understand it, electing a representative to, if they wish to oppose the application, give what evidence they wish.
MR NGOEPE: Well, you have mentioned the point, the next point to which I was going to refer you, and I am mentioning this thing because we don't want unpleasant and difficult precedents to be created with regard to questions of procedure. The Act prescribes a particular form which must be completed and served on members of the family or the victims. Now, from what you are saying my impression is that this has in fact not been done.
MR BRINK: A Form 2, that's the prescribed form, was not sent to them because the practicalities of the matter, Mr Chairman, Members of the Committee. It was not sent. No letters were written to them, but I had the assurance -and I've got a copy ... (intervention)
MR NGOEPE: Not on a single one of them? Not on a single one of them?
MR BRINK: Not a single one of them received it. That is why the assistance of the police was called in, and, with respect, the fact that they are here, and they have been apprised of their rights, indicates they are properly before this Committee, with respect.
MR NGOEPE: That's not the point. The Legislature could just have said that we should tell them the morning before. In its wisdom the Legislature wants these people
to be served with a proper form in advance so that they would have, in the quietness and peacefulness of their homes and respective places, properly consider as to what they should do. Not to appear here in the ... (intervention)
MR BRINK: Mr Chairman, Members of the Committee, these people were notified by the police on the 3rd of October of this year, not just this morning or yesterday.
MS KHAMPEPE: Mr Brink, may I just make inquiries? Why was Form 2 not served on the applicants - on the victims and their relatives by the police when the police made contact with them on the 3rd of October?
MR BRINK: Mr Chairman, possibly that should have been done, but I am satisfied that the police who were involved, that's Superintendent Marion who was involved and knew these people, gave them notice. In fact he gave them what he calls warning notices, although they're not obliged to be present, but they were given warning notices as if this were a criminal - some sort of criminal proceeding, which it's not. But I am satisfied that each and every one of these people here were notified well in time, and they have now been apprised of their rights, they understand their rights, they understand what they ... (incomplete)
MS KHAMPEPE: On the 3rd of October were they notified that they had a right to legal representation it they wanted to come forward today to oppose the application by Mr Mitchell?
MR BRINK: I have indicated that my duty in this Committee is to assist them and lead their evidence. These people appear to me to be extremely impecunious. I
very much doubt that they would be able to afford legal representation. But secondly it was put to them by my interpreter, who is one of the briefers, that I am here to look after their interests.
CHAIRMAN: Mr Brink, in order to avoid any view that might be formed amongst people that the requirements of the Act are adequately complied by merely informing them by word of mouth - I understand that attempts were made to inform them, but it is quite clear that the form which they are required to receive was not served on them. You tell us that they are here. I would like to adjourn these proceedings for a short while for you, through the assistance of an interpreter, to make absolutely sure that none of those who are here object to these proceedings carrying on, that they are satisfied - although the requisite notice was not served on them they are satisfied that they have been adequately notified and that they would like these proceedings to carry on. Mr Brink, a very short adjournment of about 10 minutes ought to resolve that matter.
MR BRINK: May I just say, Mr Chairman, Members of the Committee, as you know the Form 2 that we have in Cape Town is in the English language. I haven't seen one in Afrikaans. I certainly haven't seen one in the Zulu language, so, with respect, to serve a Form 2 notice in the English language on people who not qualified to speak English, seems to me, with great respect, carrying the literal requirements of the Act to a degree of futility.
CHAIRMAN: Well, had that been done at least the requirement of the Act may have been met. That was not done. I am going to adjourn now for a very short while to /get a
get a clear understanding from those who are here that, despite short notice and inadequate notice, they have no objection to these proceedings carrying on. And you will call us in ... (inaudible) ... for 10 minutes.
MR BRINK: Next of kin and victims have been discussing matters together. I am given to understand that they want - or some of them want their own legal representation.
CHAIRMAN: How many of them are involved?
MR BRINK: I beg your pardon?
CHAIRMAN: How many of them are involved that seek legal representation?
MR BRINK: Mr Chairman, I wonder if you could ask those to stand up, because it was very confused there.
INTERPRETER: We are referring this to the families that were affected by this. We'll want to know if you do want any legal representation to oppose this application of Mr Brian Mitchell. If this is so we will kindly ask those who need legal representations to stand up raise their hands. Relatives and those also who were directly affected by this would you please do so. Would you perhaps stand up so we may see you, those who need legal representation. We'll like to count you so we get the exact number. Someone will come down to count you. (Pause)
CHAIRMAN: You may be seated. It is very important that those who have been adversely affected by the events of the past which have given rise to this application should be afforded an opportunity to have their views expressed at this hearing, and my Committee has decided that we are
going to afford you that opportunity. We are going to adjourn this hearing until tomorrow morning to enable you to be present here with your legal representatives. This might cause an inconvenience to a lot of others who might be indirectly involved in these proceedings. Unfortunately that inconvenience cannot be avoided. Those of you have indicated a desire to be represented by your lawyer are given this opportunity to be present here tomorrow morning with your lawyer or legal representatives, and we will commence proceedings tomorrow morning at 9.30 punctually.
Now, I am going to ask Ms Komphephi, for the benefit of those who don't understand what I have said in the English language, to explain that to you in Zulu, and after we have adjourned will you kindly meet with Mr Brink to clear up any other problems that you may have so that tomorrow morning we commence punctually at 9.30. I am now going to ask Ms Komphephi, for the benefit of those who haven't understood what I've said, to tell them.
MR BRINK: Mr Chairman, before Ms Komphephi commences, would you also indicate to those concerned that this inquiry is related only to the application for amnesty of the applicant, and not to the general background of other problems that may have occurred prior to or subsequent to that time.
CHAIRMAN: If they do not know already that this is an application for amnesty and not a re-trial of Mr Mitchell, and that we are not here to consider what transpired on that day in order to determine whether he was guilty or not. We are here to consider whether he is entitled to amnesty in terms of the Act. I have adjourned. Those of
you who have any doubts about the matter will clear that up before you leave to go and consult your lawyer. And please, we will commence punctually at 9.30 tomorrow, so please ensure that if you want a lawyer that your lawyer will be here before we start at 9.30 to enable him to discuss matters that he might wish to with Mr Brink. I am going to ask Ms Komphephi now to tell the members in their home language.
MS KOMPHEPHi EXPLAINS TO VICTIMS AND NEXT OF KIN IN ZULU
CHAIRMAN: Thank you. Just hold on.
MR DU TOIT: Mr Chairperson, may I just place on record that we have also discussed the situation with our client, and we have a lot of sympathy with the logistical problems experienced by Mr Brink, and that we would have no objection whatsoever against the postponement to tomorrow. It is my client's view, and I must say that it is a view that is shared by us, that the victims and the relatives of victims should play a meaningful role here, and that that should be part of the process, and therefore we are quite happy to agree to the standing down until tomorrow morning at 9.30.
CHAIRMAN: I see that we are - we have the benefit of the presence here of members of the R and R Committee of the Truth and Reconciliation Commission. I would be pleased if they would assist us in coming to - in talking to the people who want legal representation to make things as easy as possible for them, so that we can commence at 9.30 tomorrow. I think that the members of the R and R Committee would be serving a useful purpose if they assisted us in that regard. (End of side A, Tape 1)
PROCEEDINGS ADJOURNED TO 1996/10/16
PROCEEDINGS RESUMED ON 1996/10/16
MR BRINK: Mr Chairman, Members of the Committee, when the matter was stood down yesterday you asked me to investigate which matters had been settled. I am happy to tell you that my learned friend, Mr Kajee, appears for the next of kin and the victims, and he came yesterday afternoon to the City Hall to have discussions with my colleagues who appear for the applicant. The State Attorney came this morning. I understand that, bar one matter, all have been settled, and indeed were settled some time ago. In regard to the question of settlements I have asked Mr Kajee to indicate - he does represent them and he is here present - to put himself on record, and to address you in regard to those settlements.
CHAIRMAN: Yes, Mr Kajee.
MR KAJEE: Mr Chairperson, the Honourable Commissioners, I am glad to report that the civil claims that were lodged by victims of the Trust Feed Massacre have been settled this morning barring one, where assurances have been given to the effect that because ministerial permission is required these will be considered, and positively considered.
CHAIRMAN: Yes. What is the attitude of the applicants in respect - or rather of your clients to the application?
MR KAJEE: The attitude of the community of Trust Feeds is that they do not wish to give evidence in this matter in view of the fact that the civil claims have been settled. They have indicated that they do not at this stage - they do not at all wish to give evidence to oppose the application. The community is not happy that Mr Mitchell be given amnesty, and be released without
paying the full price of his actions and serving the full sentence that has been imposed on him by Court, but they wish to make clear to the Amnesty Committee that they will leave the decision relating to whether amnesty should or should not be granted to the discretion of the Committee, as they believe that it is in the interests of reconciliation to take our country out of its dark past, particularly as Mr Mitchell has indicated, to an extent unofficially through his counsel, that he wishes that some kind of forum be established to enable him to obtain full forgiveness from, and reconciliation with, the community and family members whose lives he has so tragically affected. The community of Trust Feeds has also requested me to advise the Amnesty Committee that they will try to forgive Mr Brian Mitchell if he becomes actively involved in the reconstruction of the community that he was responsible for destroying.
The application itself is not being opposed, it is merely left to the discretion of the Amnesty Committee. Thank you, Mr Chairman.
CHAIRMAN: Mr du Toit?
MR DU TOIT: Thank you, Mr Chairperson. I intend briefly introducing the evidence which I seek to lead in support of the application, but I must first thank my learned colleague, Mr Kajee, for placing on record that there is no opposition. I must also extend my thanks on behalf of the applicant that the community is willing to receive him in their midst, because he has informed me that it is his intention to visit the community at an arranged date to offer his personal apologies. And we are grateful therefore that the application is not opposed by those who /have been,
have been, as my colleague indicated, so tragically affected by what happened.
The application will show that my client joined the South African Police Force when he was 18 years of age in December of 1975. Certain personal matters will be covered briefly by verbal evidence, since it is before you and your fellow Commissioners in the lengthy affidavit which was placed before you.
The evidence will show that my client was not involved in what one would call normal policing at all. In fact he spent only a short period of his rather lengthy career doing normal policing, and I can tell you that in respect of that I have received letters from members of the community, unsolicited, expressing gratitude for what he did. The evidence will show that my client, almost immediately after he completed his training, was involved in riot control. When he was not involved in the control of riots and political strife, political problems, he was in the then South West Africa, where he fought SWAPO. I must also say that it is an outstanding feature of his service that so little time was spent on what one would normally describe as policing in a normal society.
So it happened then that in roughly February of 1987 he became involved in what is called - or what is known as the Joint Management System. He was made a staff officer and attached to the Divisional Headquarters in Pietermaritzburg. There he became the secretary of the Regional Joint Management Committee, and evidence will be led to explain what this was and what its main function was. In his capacity as secretary of the system he came in possession of certain documents, inter alia a strategy
document compiled by a general of the South African Police headquarters in Pretoria, setting out the police involvement and implementation in what was called the total strategy against what was seen as the total onslaught.
Mr Chairperson, Commissioners, the evidence will show, and the document itself will show, that there was devised a Government management philosophy, or a strategy, which covered most aspects of life. It covered, for example, the church domain, education, media, the so-called alternative media, and in fact dealt, as I have said, with almost every terrain or domain of life itself.
More particularly of relevant to my client, however, is the strategy which is set out in this particular document to the effect that people will be taken from the black communities, trained as so-called special constables, or "kits konstabels," and will then be taken back into the communities to win back physically land areas lost to the UDF/ANC or the Comrades, as they are called. The strategy is to claim back inch by inch land or areas already lost, and to prevent further gains on the side of the UDF/ANC combination active at that point in time.
The documents which have been placed before you already by my client will show that at first a small number of special constables were employed and trained, and, because of what is described as the success they experienced in winning back inch by inch certain of the areas now dominated by the UDF, at some stage in '87 and also in the beginning of 1988 roughly 16 000 special constables were added to the police force consisting of
48 000. This force was considered to be an auxiliary force, and it was born out of the then Rhodesia. The force of special constables were deployed throughout the country as a result of the strategy set out in this particular document, annexure A to the affidavit of my client, the applicant. In this process of deployment the special constables were taken all over the country and attached mainly to Riot Units. The Riot Units used the special constables in order to regain area, land lost to the UDF, and/or to prevent further claims made successfully by the UDF.
A research document of the Catholic Institute for International Relations, which we have attached to the application, and to which I will refer my client so that he can confirm the contents thereof as also how he saw it, shows that on the 1st of March of 1988 300 special constables were deployed in the Pietermaritzburg area. The then Minister of Law and Order announced that the special constables will be deployed in Pietermaritzburg to restore law and order within the Pietermaritzburg divisional area, and probably also the KwaZulu-Natal or Natal area. Despite church protestations, protestations from the church, the constables were deployed and the Defence Force elements or Defence Force members were removed from the area. The document is of a view that this was done in order to deploy the special constables successfully.
My client, in his capacity as secretary of a Joint Management Centre, divisionally seen within the headquarters of Pietermaritzburg Police, also came into possession of certain documentation which was handed to
students at a police training centre called Milierskop(?). The lectures were available at the headquarters to Riot Unit members, more senior people, in the form of a manual. The manual, and one of the lectures more particularly, deals with the clandestine operations of the South African Police secretly operating in small black townships. It is, of course, needless to say that this is highly relevant to the application which was placed before you. The evidence will therefore show that there was an approach within the South African Police Force that not an inch will be lost, and that inches lost will be regained, and when my client took up position as station commander of the New Hanover police district he in fact became the ex officio chairperson of the local or mini Joint Management Centre, and it was his duty, as it was the duty of station commanders all over the country, to implement this strategy which I have summarised briefly.
The judgment of His Lordship, Mr Justice Wilson, showed that the motive behind his conduct in Trust Feed in fact was to interfere with the political dispensation, to interfere with political gains made by a UDF aligned organisation, and it is quite clear that my client, on the instructions of a superior officer, Captain Terblanche, the local officer commanding of the Riot Unit, called Riot Unit 8, caused specials to be delivered to the Trust Feed area, where, in line with the manual, they arrived in an unmarked kombi and in civilian clothing after dark. And, as the judgment clearly shows, the special constables were used in an attack that evening.
The Riot Unit operated in some instances, as it did
here, as a sweeping instrument. In other words it would
move into an area, mostly UDF dominated, and it would then sweep the area of the young Comrades of weapons in order to prepare the area for an attack, which would then take place later during the evening. This attack would be launched by Inkatha or Inkatha Youth Brigade, as it also happened here, and there would be support from special constables.
The special constables were used, as the strategy document also sets out, as a physical wedge against what was called the tyranny of the Comrades, the idea being that the policing will acquire a black face, as is also clearly demonstrated in this research document which we traced, and that it would be possible for the black policemen to act offensively within certain smaller areas on a clandestine basis.
The evidence will show, therefore, that my client's conduct was a politically motivated, that it was as a result of what he knew, and the instructions were orders of a Major - Captain, later Major Terblanche. It is necessary to state that the evidence will show that Major Terblanche was, some time after the event, killed by a special constable. The special constable in his turn was killed by members of the Murder and Robbery Squad. My client's information, which he will briefly refer to, is that that was done in order to prevent the relevant special constable, that is the person who killed Major Terblanche, to reveal that other such attacks in which the special constables were used took place in the Hammarsdale area and various other areas within the Natal territory.
Mr Chairperson ... (intervention)
MR NGOEPE: Just make sure that you leave enough
time for your client as well.
MR DU TOIT: I am sorry?
MR NGOEPE: Just make sure that you leave enough time for your client as well to come and testify.
MR DU TOIT: Yes. What the evidence will also show is that my client was found guilty in April of '92, that he was sentenced to death. There were certain remarks made by the Trial Judge asking for an inquiry into the management system. It will be shown that the remarks made were correct, and it is also clear that no such investigation ever took place.
Lastly, my client will inform you briefly of what he is now, of what has happened to him, of how he sees the future, and he will also address the victims and the relatives of the victims.
Mr Chairperson, this more or less in brief is what the evidence will show.
CHAIRMAN: Yes, you may proceed by calling your witness.
MR DU TOIT: May I then ask you to do the necessary. I would like to lead the evidence of the applicant.
BRIAN VICTOR MITCHELL (Sworn, States)
MR DU TOIT: Mr Chairperson, my junior, Advocate Naidoo, will briefly lead the evidence in respect of the personal aspect.
QUESTIONED BY MR NAIDOO:
Mr Chairperson and Members of the Committee, I shall go into the personal details, education and training of the applicant, and for your convenience I'd refer you to page 10 of Volume I of the papers placed before you. That is at page 10. Mr Mitchell, will you please state your
full name for the record? --- Brian Victor Mitchell.
Yes. And how old are you? --- I am 39 years old.
It is common cause that you are presently held at the Pietermaritzburg Prison. --- That is correct.
And that you were arrested on 2nd August 1991 on 11 charges of murder and seven charges of attempted murder, isn't that correct? --- That is correct.
Where were you born? --- I was born in Vryheid.
And when? --- On the 27th of July 1957.
Will you speak up please so that we can hear you clearly. And where did you school, Mr Mitchell? --- I went to school at General Smuts High School.
And when did you join the South African Police? --- I joined the police force on the 31st of December 1975.
And what was your age at that time? --- Then I was 18 years old.
And had you completed your basic training? --- Yes, I did.
Where did you complete that training? --- I did it at Pretoria Police College.
And after having completed your basic training where did you initially serve? --- I was then posted out to the Krugersdorp Police Station.
When was that? --- That was in July 1976.
So after your term of service at Krugersdorp in 1976 where did you go to? --- I was then sent to Pinetown Police Station.
And will you inform the Committee and Chairperson when that was, what year? --- That was at the
beginning of 1977.
And from there where were you posted? --- I was then posted to Umzinto Police Station.
That is the Umzinto Police Station? --- That is correct.
In what year? --- It was at the - in approximately 1983.
And after having served in Umzinto where did you then go to? --- When I became an officer I was posted at Pretoria head office.
Which office is that? --- I then - in Pretoria head office.
And thereafter where were you posted? --- From there I went to Pietermaritzburg, Loop Street Police Station.
In what way were you transferred to Pietermaritzburg? --- I was there as branch commander.
And in which part of the police system did you work? --- Then I was in the uniform branch.
CHAIRMAN: Can you talk a little more loudly please. It might be difficult for people to hear.
MR KAJEE: How long were you there for? --- I was only there for a couple of months.
And thereafter where were you posted? --- From there I went to Pietermaritzburg Divisional Headquarters.
Will you speak into the mike so that we may hear you clearly, Mr Mitchell. In what capacity did you serve at the Divisional Headquarters in Pietermaritzburg? --- I was a staff officer.
Yes. --- And I was secretary to the Joint
In what year was that? --- I was there in 19 - in 1980 - 1985.
It was roughly 19 ... (intervention) --- ... 87.
... 87, not so? --- That's right, in 1987.
Yes, correct. Now, the Divisional Headquarters in Pietermaritzburg, which area did that embrace? --- That stretched from Kokstad to AD Smith, to Greytown.
Yes. And will you place on record whether you completed any diplomas or certificates? --- I've done a diploma in police administration.
Is it correct that you completed a diploma in police administration towards the end of 1983? --- Yes, that is correct.
And thereafter you were promoted to lieutenant in December 1985. --- That is correct.
And to captain in 1991. --- Yes, that is correct.
Yes. Did you resign from the Police Force? --- I did.
When was that? --- That was in 1994.
Was that after your conviction? --- That is correct.
Why did you resign from your position? --- I resigned so that I could retain the medals that I had been given during my service in the Force, rather than be discharged and lose my medals.
Yes. So you were afraid of losing your medals. Will you inform us as to which medals these are? --- I was given a medal for combatting of terrorism, and for faithful service.
And do you have anything else to say in regard to your personal details? --- I was once a qualified and professional policeman, and I served the country and the people of my area with diligence.
Thank you. Those are the personal details I wish to lead at this stage. Later certain personal circumstances of the applicant will be led. My learned leader will proceed with the further leading of this witness. Thank you.
CHAIRMAN: Thank you.
QUESTIONED BY MR DU TOIT:
Mr Mitchell, it was in approximately February of 1987 that you commenced working at the Divisional Headquarters of the South African Police here in Pietermaritzburg, is that correct? --- That is correct.
What was your rank? --- I was a lieutenant.
And did you then come into close contact with Captain, later Major Terblanche, who was then the head of Riot Unit 8? --- That is correct.
What was the main function of this Riot Unit, as it was of other Riot Units in the country? --- It was the combatting of the unrest and the maintenance of law and order within the political sense of the word.
I must just ask you again to speak up please. It's very necessary that everybody should hear what you're saying. Now, did you develop some sort of relationship with Captain Terblanche, your superior? --- Yes, I did.
What type of relationship? --- I admired him and got to know him well in the time that I was there. He had /a strong
a strong personality and he was a strict disciplinarian. And he also ruled the unit with an iron fist.
Mr Mitchell, just dealing briefly - we'll come back to your own notes - with the Joint Management System. Did you also then come into contact at the Divisional Headquarters with what was called the Joint Management System? --- That is correct.
What was that? --- It's a counter revolutionary strategy that was implemented by the Government at that time in our history during the political violence in the country.
And what was its main function as you saw it? --- It was to counter the revolutionary onslaught and the maintaining of law and order. But basically the counter of the revolutionary onslaught.
Now, what was the security situation as you saw it in Natal during 1987 and 1988? --- There were many attacks. There was virtually a civil war going on.
I note that you say that people were killed and that houses were attacked and burnt down. --- That is correct.
What happened to policemen within the townships? --- The policemen were chased out of their homes and their families were chased out. Their houses were set alight and many of them were killed.
And you said that eventually, I see in the statement, that Natal became somewhat of a battlefield, is that correct? --- That is correct.
You then became the secretary to the Joint Management System, in the divisional sense of the word, here in Pietermaritzburg, is that correct? --- That is /correct.
And what did you learn about the strategies implemented by this system? --- It was a counter revolutionary strategy known as a total strategy against the total onslaught, the latter coming from the UDF, which was regarded as the internal arm of the then banned African National Congress.
Did you attend meetings of this body? --- I did.
And who would attend this type of meeting? --- It was mainly the Defence Force and the South African Police, and other Government departments.
The local Defence Force officers? --- That is correct.
Police officers, and what other departments? Examples? --- Education, social and departments dealing with economical issues. The only department that was not allowed a sitting on the Joint Management System was the Department of Justice.
The Department of Justice. Is it correct that the relevant departments or representatives would be called in as they were needed depending on the circumstances of the topics to be discussed? --- That is correct.
But it would exclude the Department of Justice. I think you said that. Would it also happen that certain matters would be discussed in the presence of certain representatives, and they would then be excused and the discussion would continue with those who were left? --- That is correct.
We will return in a little more detail to that. Did you then become interested in this strategy, the so-called onslaught and the total strategy against the onslaught? /--- Yes,
--- Yes, I did.
Is that why you made copies of certain documents? --- That is correct.
What did you do with the documents after you copied it? --- I studied them and used them as part of my work situation.
Now, the first document - just to identify it - that I want to refer you to is a strategy document, is that correct? --- That is correct.
It is annexure A to your affidavit, attached to your affidavit. --- That is correct.
It actually starts on the marked page 32 of Volume I, is that correct? --- That is correct.
It is dated February 1987. It's a confidential document. It was compiled by General-Major Steenkamp of the South African Police Headquarters in Pretoria, is that correct? --- Yes, that is correct.
And the covering letters on pages 37 to 40 in Volume I shows that it was distributed from headquarters to various divisional commissioners and certain section heads throughout the country, is that correct? --- That is correct.
But it was limited to senior officers. If you look at page 37, in paragraph 3, you will see that - more specifically the section dealing with counter measures - according to the brigadier who wrote this letter, "Contains certain sensitive suggestions and should be distributed to district commandant level." What rank would that have been under the old dispensation? --- You would then be a colonel.
Colonel. Colonel and upwards. --- That is
And you were able to copy - to make a copy because it was available because of your position as secretary of a Joint Management System? --- That is correct.
Were it not for that it would not have reached your eyes? --- That is correct.
Now, Mr Mitchell, I will return in some detail to the document later when we deal with the notes that you wrote in prison, but in paragraph 26 of your affidavit on page 13 you have given a brief summary of how you saw the document. How did you see it? --- It was a document, and it was clear that it was a - that there was a total strategy on the side of the Government against what it considered to be the total onslaught. It was required that the police implement the strategy countrywide. It included the strategy to train special constables, to take them out of the community, and to place them back in the community as a physical force or wedge against what was described as the tyranny of the Comrades, of the UDF/ANC. There was in fact a very brief training, and they were armed with shotguns, mostly 12-bore shotguns, is that correct? --- That is correct.
In paragraph 27 you make another observation. Would you place that on record please, in respect of this document, the strategy document as I will refer to it. --- Yes. The special constables were used against the UDF forces and the ANC forces. This was particularly the case in black areas where the UDF/ANC made substantial gains over the years, and to prevent further gains.
Now, is it correct that the special constables, as the result of the strategy document and other
considerations, were then deployed over the country? --- That is correct.
What units or section were they usually attached to? --- To the Riot Units throughout the country.
The Riot Unit would also have been present on a countrywide basis and in divisions. --- That is correct.
What is also important is that I should ask you to place on record what was the relationship between the Divisional Headquarters in each division and the Riot Unit? --- The Riot Unit fell under the command of the divisional commissioner.
And were in fact attached to the Divisional Headquarters? --- And were - that is correct.
So, for example, Major Terblanche would have an office both at the Unit and at the Divisional Headquarters. --- That is correct.
And that is why you saw him on a daily basis, is because he would first come in every day to the Divisional Headquarters and his office there. --- That is correct.
Before he goes out to where the Unit members are physically stationed. --- That is correct.
Is that correct? --- That is correct.
In paragraph 28 would you make the observation as to how you saw this body of roughly 16 000 special constables, with some municipal constables, which was attached to the police force of 48 000? --- They were an auxiliary or third force that was similar to the forces that were used with success in Rhodesia.
And in this respect I shall return to the document
when we deal with your notes. Now, is it correct that in paragraph 30 you observe that the document does not only deal with the special constables, but with almost every aspect of life? Is that correct? --- That is correct.
Such as? --- It included the areas of the church, the media and education, the foreign policy of the country, and issues like sanctions against the Government, but is specifically aimed at the restoring of law and order within the boundaries of the Republic, and defeating the revolutionary onslaught.
You also make the point, which I think you have made briefly, that in the mid- to late-80s there was chaos and rioting took place over the country. --- That is correct.
And how was this seen at that point in time by the officers or officials of the Joint Management System in the Pietermaritzburg divisional area? --- It was seen that there was total chaos in this area.
Was there any pressure? --- There was an enormous amount of pressure placed on the Riot Unit to try and solve the problems within this province, and specifically within the Pietermaritzburg area.
I shall ask you to come back to this aspect when we deal with your notes. I just want to deal by way of introductory summary with the role of the South African Police Force in this National Joint Management System. What role did the police play as an institution in this system? --- It was responsible for implementing the total strategy against the revolutionary onslaught.
And you have attached documents which you have collectively identified as annexure B to your affidavit. /--- That
--- That is correct.
Let us just identify the documents, and if I may ask you and the Chairperson, as well as the Commissioners, to go to Volume II on page 328. Page 328 of Volume II, marked B. My learned junior observes that he has marked it with a flag, and that you will have a B there next to it. Now, this is a covering letter which is dated May of 1986, and it is again a letter which attaches certain documentation to all divisional commissioners, all police head office sections, as well as the district commandant of Walvis Bay, is that correct? --- That is correct.
It deals with the role of the South African Police within the National Management System. --- That is correct.
It complains that the system is not working to well at that point in time in practice, and senior officers are requested to do certain things, is that correct? To see to it more particularly that the system is improved on the ground or in practice. --- That is correct.
In a secret document from page 330, which is annexure A, there is a document which deals with the onslaught against the Republic of South Africa, is that correct? --- Yes, that is correct.
And a management philosophy is set out in this secret document. --- Yes, that is correct.
Annexure B of this document of annexure B, on page 334, contains a diagram setting out how the National Management System will be operating in practice, is that correct? --- Yes, that is correct.
I will bring you back to this document also to provide certain free English translations for that, and an /explanation
explanation of the diagram, but this diagram shows how, from the State President down to the Cabinet and various Cabinet Committees, the Management System would be operating, is that correct? --- Yes, that is correct.
If we look briefly at the last column the 12 GBS, as it is called here, would be Joint Management Centres in the various divisions, or 12 divisions, is that correct? --- That is correct.
One would have been Pietermaritzburg. --- Yes, that is correct.
And of course, in order to complete this picture, at the bottom of that there should actually be one last column dealing with Mini or Local Joint Management Centres, such as the one that you were the chairperson of in New Hanover. --- Yes, that is correct.
And there would be hundreds of them all over the country. --- That is correct.
We will come back to that. Annexure C deals with what is called the nodal point, is that correct? --- Yes, that is correct.
That's a person who would act as a nodal point, where information will be gathered, and would then be sent through. We'll deal with that briefly. Is it correct that on page 339 there is also a document which is addressed to senior officers dealing with the involvement of the South African Police in the National Management System? On page 339. --- Yes, that is correct.
That is from the officer of General-Major Genis, G-e-n-i-s, is that correct? --- That is correct.
Major-General. From page 344, and especially from page 326, there are certain documents dealing with counter /measures
measures against the overflow of violence into white areas, and the quelling of riots in a small rural black township, is that correct? --- Yes, that is correct.
Now, some of these documents have the appearance of lectures. Where did you get these documents - copies of? --- These documents all form part of my work situation, and were documents that I needed and required to use to implement my work and the instructions from head office.
Was there a manual? --- There was a manual.
Who used the manual? --- The manual was used by Captain Terblanche - Major Terblanche.
Of Riot Unit 8? --- That is correct.
And was this manual available to the senior officers? --- Yes, it was.
In paragraph 32 of your affidavit on page 14 - if I may refer you to that page, Mr Chairperson, Mr Vice-Chairperson, Commissioners - you have summarised the contents of annexure B. --- That is correct.
Would you take us through paragraph 32 please. Paragraph 32 on page 14 of Volume I. ---
"It seems clear from the documents that there was what was considered by the South African Police and the Government to be a total onslaught against the Republic of South Africa, and that a total strategy was necessary in order to counter such onslaught. There is contained in the documents a philosophy of management of the situation and the implementation of the total strategy against the onslaught, including
"references to various types of actions in order to counter such onslaught. The management philosophy, as it was called, was aimed at the continued existence of the State and the national interests of the Republic of South Africa, as it is called in the document. It will be seen from the document that the "stratkom" played an important point in the Joint Management System of the total strategy against the total onslaught. The document deals in detail with required conduct and actions in the event of riots and in the event of internal unrest situations, as well as in the event of any attempt to further the onslaught."
Now, after you have been the secretary of the System for some time you decided that you wanted to apply for a transfer to the Security Branch, is that correct? --- That is correct.
Why? --- I found the work that I was doing at that time, and the work revolving around the total onslaught, the revolutionary onslaught on the country, to be very interesting, and it was the type of work that I wanted to continue with.
But at the same time - I think this is clear from paragraph 33 - you were transferred to the police station of New Hanover. --- That is correct.
Did you discuss this with the divisional commissioner? --- I did.
Your request to go to the Security Branch and the transfer which came through simultaneously. --- That is correct.
And? --- He said that he required me to work at the New Hanover Police Station, and that I should take that transfer.
Now, when you arrived at New Hanover you then implemented the Joint Management System, is that correct? --- That is correct.
In what capacity did you do that? --- I was ... (intervention)
On local level, no, district level, the New Hanover district level. --- I was then the chairman of the - in Afrikaans term it's PBS, or the Local ... (intervention)
Management Centre. --- ... Management Centre.
The Afrikaans is Plaaslike Bestuur Sentrum. The English would be Local Management Centre. --- That is correct.
How did you become the chairperson of that? --- It's a seat that's automatically allocated to certain police station, and then other surrounding police stations fall under that particular seat.
So you became the chairperson because of your capacity as station commander. Who else served on the Local or Mini Joint Management Centre, district level, New Hanover? --- It would be the surrounding station commanders.
Surrounding station commanders. Police officers of course? --- Police officers.
Yes. And? --- Security Branch, the local
Commando Unit of the SADF, if there was one, and then there would be other Government departments which were involved in work within certain areas, or within certain problem areas. For example the Development Services Board or education.
And it would exclude justice, as you've indicated. --- And it would exclude the Justice Department.
Now, what was the function of this Mini or Local Joint Management Centre in New Hanover as you saw it? --- They had to deal with the issues of security, of the economical and the social problems that were within the areas, and find strategies to resolve those issues.
In paragraph 36 you have also provided a summary of how you saw your own duty within this Local or Mini Management Centre. Would you just take the Committee through that please. ---
"Amongst my normal duties I also considered a prime duty to be my role within the Joint Management System or my role within the total strategy against the onslaught. It was my duty to see to it that the UDF/ANC were countered effectively within my area. This included favouring the IFP and groups not perceived to be State enemies."
Now, we will not deal with the next paragraphs except for paragraph 39, because in your notes we will come back to this just now. But you have attached the judgment and the sentence of Mr Justice Wilson, the Vice-Chairperson of this Committee, is that correct? --- That is correct.
Now, we will deal in a little detail with that and certain general remarks made towards the end of your evidence, but just to summarise, the Riot Unit on Friday, the 2nd of December, swept the area, as you set out in paragraph 43, is that correct? --- Yes, that is correct.
What did that entail? --- It was in preparation for an offensive action that was going to take place against members of the UDF/ANC and their supporters, and it had been done with the help of constables. I was instructed to assist with member from my station in cleaning up the area.
By? Who gave you the instruction? --- By Major Terblanche. He said that there wasn't a further inch of soil within the area to go to the ANC/UDF alliance, and that I must see to that.
We will come back to that also in a little more detail. Now, you have set out in paragraph 49 what happened at the trial. It's common cause, I am not going to lead your through that on page 16. You have attached the judgment and the sentence. You have also made two previous applications for indemnity, is that correct? --- That is correct.
And you have attached the applications as annexures D and E. --- That is correct.
Now, I think I can lead you on this. The first application was not considered because you were a condemned prisoner and not serving a term of imprisonment. --- Yes, that is correct.
Then the death sentences imposed by Mr Justice Wilson were commuted on 24 April 1994 by the then
President, and 30 years' imprisonment was substituted, is that correct. --- Yes, that is correct.
You did apply under the old Act, the '92 - the Further Indemnity Act of 1992. That is the application marked annexure E in Volume III, is that correct? --- Yes, that is correct.
Now, what you have done is to, during more particularly the last year or two, to write certain notes, is that correct? --- Yes, I did.
For purposes of this application. --- That is correct.
And that was taken up from paragraph 55 on page 17 of your affidavit. --- Yes, Sir, that is correct.
Would you just take the Committee through 55 and 56 please, as well as 57. ---
"The Constitution recognises a need for understanding, but not for vengeance, a need for "vuntu" but not for victimisation. In the spirit of reconciliation, and for the purpose of applying for amnesty, I am prepared to make disclosures of the events leading up to the Trust Feed incident and further revelations. The purpose is not that fingers can be pointed, but to demonstrate my willingness to contribute to the future of South Africa. I do not want to be party to a new onslaught of mudslinging by political parties. It took me over two years to free myself from a capsule of indoctrination and
You speak of a capsule of indoctrination, we will deal with that, but can you recall when you were in death row you once discussed with me what you considered at that time to be the most pressing matter, namely your two medals? --- That is correct.
You actually called me to the prison to discuss the question of the medals. You were afraid that you would lose the medals. --- That is correct.
Can you remember that I pointed out to you that you had 11 death sentences hanging over your head ... (intervention) --- Yes.
... and that the medals would be rather minor compared to that. --- That is correct.
Mr Mitchell, I want you to deal with the question as to why the information was not disclosed by you before this application. What was your attitude after you were arrested? I think you've summarised it in paragraph 61. --- I can only explain it in posing a question, by saying why would, for instance, a British soldier remain silent when he is faced by the enemy and captured by the enemy, and even during torture he remains silent and loyal to his country?
You also expected the backing of the police irrespective of the outcome of your trial, you said in paragraph 63. --- That is correct.
You refused to disclose all the facts and the information for quite some time. How many times during the consultations which I had with you before the trial, after the trial, did I urge you to make all the facts known to me so that I could give it to the trial or use
it? --- There were many times.
Now that you have decided to make available the documentation and your information, is it correct that you have arranged through me to also speak about matters which are not relevant to your application here with the broader Commission and with their investigators? --- Yes, Sir, that is correct.
And that a meeting is about to be set up within the next week or so, is that correct? --- Yes, that is correct.
Could we just briefly then deal with when you started at the police ... (incomplete - end of Side A, Tape 2) ... then? --- I was then 18.
On what date did you join? --- On the 31st of December 1975.
And where did you go to after that? A police college? --- That is correct.
What was the duration of your training? --- I was there for six months.
And after that what happened? --- Okay, during our training we were - it was when the Soweto riots broke out that we were then taken through to the Soweto riots on the back of Bedford trucks.
In paragraph 66 in your notes you've set out what you experienced as an 18-year-old when you went into Soweto. Would you just place that on record please. --- Yes.
"As a young white South African I was for the first time confronted with an uprising that left me shivering in my boots. During this uprising I
"experienced the solidarity of the black masses like never before, and the brutality of the law enforcers to put down the uprising. The hostility of the blacks towards us was real and constant."
Now, what was the position of the Riot Units in those days, in the 76/77/78? --- There was no permanent Riot Units. Members would have to perform their normal policing duties, and then were - when required to go to the riots they would have to leave their work and go and do that.
In paragraph 68 you have an observation to make. --- Yes.
"Just as many young black men from South Africa fled during the 1976 period, and who were eventually trained as ANC terrorists, as I and many others then saw it, so my life took on a parallel whereby I was trained in counter insurgency tactics and counter revolutionary measures to stop the eventual onslaught."
Let us continue with your career. You were then transferred to Krugersdorp. --- That is correct.
And the violence, you say, continued on the Rand, or Gauteng, during '76 to '77, is that correct? --- Yes, that is correct.
And you were transferred in '77 to Natal, namely Pinetown. --- Yes, that's correct.
What duties did you perform there? In paragraph 70
you've set it out. ---
"I was placed on the Riot Unit. We would have to conduct our normal policing duties, and I was attached to the Pinetown Police Station. As well we would then have to deal with unrest situations as they arose."
And you spent hours in Land Rovers. --- Yes, that is correct. We were divided into six sections with six white members. Each section had a Land Rover with a sergeant, a driver in front, and four members at the back. Many hours were spent cramped up in the back of these Land Rovers - winter, summer, rain, cold and sunshine.
And you in fact were trained and retrained to quell or limit the unrest situation. --- Yes, that is correct.
But it was in 1981 that your training then took one step further, and that was when you now received training in counter insurgency or COIN. Where was that? In paragraph 73 you set this out, on page 20 of Volume I. --- That was at Milierskop.
What is Milierskop? --- Milierskop is a counter insurgency training base for the South African Police.
Situated in Gauteng? --- Situated near Marble Hall - near Marble Hall.
And you have set out in the affidavit the training you received here, but is it correct that you saw many videos, you were brought into contact with what were called tamed terrorists, or askaris? Is that correct? --- Yes, that is correct.
You were sent off to South West Africa, as it was
then known, to fight against SWAPO in 1982. --- Yes, that is correct.
You returned and were sent back - this is what paragraph 78 shows - in 1983 to Ovamboland in South West Africa. --- Yes, that is correct.
When you came back from the border for the second time, in paragraph 79 you have set out what your duties then entailed when you came back here to South Africa. What were those? --- Yes, after returning from the border I was once again put back on the Riot Unit and worked in all the townships, including Inanda, Lamontville, Chesterville, KwaMashu, Clermont.
And when you say that you were put onto the Riot Unit, that you worked the townships, what would that entail? What was that, just briefly? --- Ja, it required that we quell the unrest and the uprisings of that period.
Again the quelling and the limitation of the unrest situation. --- That is correct.
Now, many incidents took place during this - the working of the townships or the quelling or the limitation of the violence or the unrest, is that correct? --- Yes, that is correct.
You have not mentioned all the incidents here, but it will be discussed, is that correct? --- That is correct.
Was there brutality? Was there brutality in the quelling or the limitation of the unrest? --- Yes, there was.
Is there reference to this, the brutal approach, in
one of the lectures in the manual, annexure B? ---
Yes, there is.
Now, what sort of videos were you shown at Milierskop? What sort of videos, type of videos were you shown at Milierskop?
MR NGOEPE: Sorry, before you do that, shouldn't you tell us where that reference is, reference to brutality in the lectures. Is it in the documents, or was it oral?
MR DU TOIT: It is in the documents, and we will come back fully to the documents, Judge. --- Videos of the unrest situations, of necklacing of people that were taken by international video teams that were confiscated from them. It included videos of victims of the unrest in Natal and other parts of the country.
Also during this time, the mid-80s now, you make the point in the early 80s, in paragraph 85 - if you could just place that on record please. --- Yes.
"During the early 80s the Government publicity and propaganda machine was also operating full time. One just has to think of the speeches made by political leaders like P W Botha, Magnus Malan and other Cabinet Ministers. Everything revolved around the so-called "swart kaffir," the communist and terrorist. Terms like Black Consciousness and Solidarity were turned into something negative. I believed that which I now see to be propaganda."
You are speaking of perceptions which were created. --- That is correct.
Deal with paragraph 86 please. ---
"We were led to believe that Nelson Mandela was and portrayed to be as being a monster, a communist, and a violent man. One can now see the deception and the disinformation that was fed to us. Robert MacBride was put under the same kind until I met him at Westville Prison in 1992. Having exchanged ideas and views with him my perceptions changed. Likewise with Mr Mandela. I am very sorry that the changes that have taken place with the elections did not take place 10 years ago."
Now, you have dealt with what happened, inter alia that you were brought into contact with askaris. What did you learn from this contact, Mr Mitchell? --- During the briefings that we had with the askaris we were allowed to address them and ask them questions regarding MK tactics and strategies. I also came to understand that the UDF was the internal wing of the ANC, and that the Comrades were the internally or locally trained fighters for the ANC. These sessions were normally arranged by the Security Branch from head office or headquarters in Pretoria, and they normally took place at Milierskop during our training or refresher courses.
Now, let us just deal - at this stage you completed a diploma in police administration on a part-time study basis, is that correct? --- That is correct.
And you were promoted to the rank of lieutenant in December of 1985. --- That is correct.
You then went to Zimbabwe, the border, and there was
a short period at head office in Pretoria, police head office, before you were transferred back to Natal. --- That is correct.
Now, just to set the record straight, in this short period at police head office there you did administrative work. --- That is correct.
You were then at the Loop Street Police Station for a small while, and then became attached to the Divisional Headquarters in Pietermaritzburg. --- That is correct.
Please let us deal in a little bit more detail now with this aspect. How many districts are there in the Pietermaritzburg divisional area? You set that out, for convenience, Mr Chairperson, in paragraph 89. --- It is divided into Kokstad, Ladysmith, Greytown and Pietermaritzburg.
It would include the Natal Midlands? --- That is correct.
You have already said that you started working at Divisional Headquarters from approximately February '87, that you were the staff officer, and that you became the secretary of the Joint Management System. --- That is correct.
Now, have you met Captain Terblanche before you became attached to the headquarters? --- Yes, I did. I met him when I accompanied the commanding officer of the Riot Unit in Durban and the commanding officer of the Riot Unit here in Pietermaritzburg to Pretoria. That was the first time that I met him.
Were there two Riot Units in the Natal area, one in Durban and one in Pietermaritzburg? --- Divisional
Riot Units, yes.
So the Durban Divisional Headquarters would have had its own Riot Unit attached to those quarters. --- That is correct.
You have already said that you worked closely with a Captain Terblanche at the headquarters. --- That is correct.
Now, in paragraph 92 you give a brief summary of a Joint Management System. It's a helpful summary in my view. Would you just take the Committee through that please. --- Okay.
"The Joint Management System is a counter revolutionary strategy implemented at the time in our history. It was a system that worked up from station level to the State Security Council. The system was run jointly by the South African Defence Force and the South African Police. It consisted of various Government departments, which were accountable to the Joint Management Committee in matters of security and stability. Most of the terminology was in Afrikaans. At station level you would have a Plaaslike Bestuur Sentrum."
Just stop there. --- That is the Local Management Centre of which you were the chairperson as a result of your capacity of station commander in New Hanover. --- That is correct. Then there's the ... (intervention)
District level. --- At district level is the
And at divisional level? --- You have the Sub JMC.
And there would have been 12 country wide, as we will see in a minute, is that correct? --- That is correct.
And the Joint Management Committee sat at Natal Command of the SADF in Durban.
The Joint Divisional Management Committee of Natal would have sat at the Natal Command in Durban at SADF. Is that what you're saying? --- That is correct.
Let's just get that clear. Could you go to page - in Volume II to page 334 please. 334 in Volume II. This, to just place it on record, is an annexure which was attached to the documents which you have collectively called annexure B, and which you found in the Divisional Headquarters of Pietermaritzburg, is that correct? --- That is correct.
If you go to page - whilst you keep your finger at page 334, Mr Mitchell, would you just go to page 329 under paragraph 3 (2). It's says, "Diagram by die instellings by die filosofie moet uit voor ande." That would be a diagram which shows the institutions which should implement the philosophy of a joint management system, is that correct? --- That is correct.
That then is the document with is called bylae B or annexure B on page 334, is that correct? --- That is correct.
Can we just deal with this diagram? Firstly this diagram shows - if we can start from the bottom. (Pause) I apologise, I just wanted to ascertain when the tea break
is because I would like to finish this, but I understand it will only be at 11.15. I will be able to finish it. I would not want to interrupt the chain of thought here.
If you start at the bottom the first column says, 12 by what is called GBS. The English translation would be Joint Management Centres. --- That is correct.
One of the 12, as you have already said, would have been the Pietermaritzburg Divisional Joint Management Centre. --- That is correct.
That would consist, each of those, is that correct, - according to the diagram each of these centres would consist of what is called GIK. That is a - I won't give the Afrikaans wording, but is it correct - I was informed that that would be the Joint Information Committee? --- That is correct. It was made up of subcommittees.
Ja. The Divisional Joint Centre is made up of four subcommittees. --- Yes, it had four subcommittees with it, one on ... (intervention)
The first - yes? --- One on information, the first one. The second was on security.
Security Committee. --- The third one was for ... (intervention)
Communication Committee. --- ... communications, and the third one had to deal with social issues.
I've got the English translation here - if I may help you - would be the Constitutional, Economical and Social or Welfare Committee. Is that correct? --- That is correct. I might add here as well that the sub JMC consisted of the same - or had also the same subcommittees attached to it.
Now, you have already said that under this final
column should actually be the hundreds of Mini or Local Joint Management Centres, which would be at district level. --- That is correct.
It goes into a column which says NKK. That is the Nasionale Koördinasie Komitee, as you told me or showed me. I translated it by National Co-ordination Committee. --- That is correct.
To the right that goes into a Cabinet Secretariat, is that correct? --- Yes, that is correct.
And to the left into a State Security Council. --- Yes, that is correct.
The State Security Council has three subcommittees, or had three subcommittees. --- Yes, that is correct.
Mr Chairperson, again I will not give the Afrikaans wording, but I will translate as I translated what was given to me. TNB would be Branch of National Interpretation. The Afrikaans word is vertolking. Branch of National Interpretation. TS would be Tak Strategie, or the branch dealing with strategy. The TSK is the branch dealing with strategic communication or strategiese komunikasie, strategic communication. Is it correct that the State Security Council, if you just look at the diagram, goes into the Working Committee of the State Security Council? That's WK van SVR, the Working Committee. That into a Cabinet Committee for National Security, into the Cabinet, and into the State President, is that correct? --- That is correct.
On the right-hand side the Cabinet Secretariat goes into the Working Committee of the Welfare Management System. That WVS I would translate English would be Working Committee of the Welfare Management System, and
that would also go into Cabinet Committees, into Cabinet, and into the State President, according to the diagram. --- That is correct.
Is this, according to you, how the Joint Management System was managed, the institutions which were managing the Joint Management System? --- Yes, that is correct.
MR NGOEPE: What is the arrow pointing upwards? What does it signify? Above NKK.
MR DU TOIT: The NKK?
MR NGOEPE: That arrow which points upwards, what does it signify?
MR DU TOIT: I think I must ask the witness. It would appear that it would go into State Security Council left, Cabinet Secretariat on the right, and would also be - do you have an idea why the arrow is also pointing upwards there, although it is not connected to any ... (incomplete) --- Yes, Sir. It has direct working if necessary through the State Security Council, but can work directly straight up by not having to go through the State Security Council, or not having to go through the Cabinet Secretariat.
CHAIRMAN: To the Working Committee? --- Sorry, it has its own direct line going up.
Perhaps this might be a convenient stage. Have you finished with this diagram?
MR DU TOIT: I would like to, because what I would like to do then is to come back the specific practical situation. If it would be convenient I ... (intervention)
CHAIRMAN: Yes. Very well, we'll take the short adjournment now and resume at 11.15.
BRIAN VICTOR MITCHELL
CHAIRMAN: Yes, Mr Brink.
MR BRINK: Mr Chairman, Members of the Committee, insofar as the leading of evidence is concerned I have no objection to my learned friend exceeding the bounds of leading if he wishes to on non-controversial matters. I have no objection - to save time if he wishes to lead I have no objection, but if the Committee has, well, you must indicate.
QUESTIONS BY MR DU TOIT CONTINUED:
Mr Mitchell, we dealt with that diagram just before the tea adjournment, and paragraph 92 on page 23 of Volume I. Now, would you continue and make the observation in paragraph 95. With hindsight what is your view of the situation in mid-80s in South Africa? Paragraph 95. ---
"It is true that the lack of political vision of the Government had plunged South Africa into a hopeless situation of violence and turmoil. The police were always too scared or too proud to admit failure. This hopeless situation had gone into despair and panic. I used to sit and watch the hierarchy of the SADF and the SAP at joint meetings on unrest in Natal and see them at their wits' ends."
Was there a political solution in sight for the people that you refer to? --- There was no political solution within sight.
Could the unrest be contained? --- No, the spread of the violence and the attempts to prevent it had failed.
And what happened in this respect in the headquarters in 'Maritzburg? --- I used to watch the brass from Pretoria, and the brigadiers at Divisional Headquarters in Pietermaritzburg, and the officers seconded to Pietermaritzburg, pile all the responsibility for preventing the violence upon the shoulders of Captain Terblanche and his Riot Unit.
Go on with the strategy please. ---
"The strategy of attaching roughly 16 000 special constables as an auxiliary force to roughly 48 000 existing police force members was arrived at to solve the solution."
I want to deal more fully now with annexure A, the strategy document, and we shall come back to the next paragraph. This is the document, the final version of which was compiled in February of 1987, which deals with the alternative structures, etcetera, in South Africa, is that correct? --- That is correct.
Now, this is on page 52 of Volume I. Now, is it correct that from pages 60 and following reference is made to the situation - the development of a revolution in the then Rhodesia? --- That is correct.
And what is done is there is an overview of what happened in Rhodesia, and why the revolution there, as it is called, went the way it did, is that correct. --- Yes, that is correct.
After that was dealt with the development of the
revolutionary struggle, as it is called, in South Africa is developed, and an overview of that is given as from page 67 and following, is that correct? --- Yes, that is correct.
Of more importance is the period of page 74 from 1976 to 1986. --- Yes, that is correct.
Mr Chairperson, may I, just for your convenience, place on record that I will be following rather closely, except here and there, the brief schedule of relevant pages which I have made available to you so that you will have a handy reference to the various pages. Now, the period of '76 to '86 would deal with the riots, the unrest which started in Soweto in '76, and right up to the unrest situation which you have been describing in some detail in the middle 80s. --- Yes, that is correct.
It refers to the strategy of the ANC/UDF/SACP, is that correct? --- Yes, that is correct.
And the nett result of that is to be found on page 85, where the strategy is set out, namely to make the country ungovernable, is that correct? --- Yes, that is correct.
On page 85 there is reference to a press statement of Mr Nzo, then the Secretary-General of the African National Congress on 5 July 1986, with reference to how there was a call to make the country ungovernable, how the one apartheid structure after another collapsed, the emergence of street committees, the embryonic people's power, and the strategy is to move from ungovernability to people's power through such structures or alternative structures. That's how the author of this document saw it, is that correct? --- That is correct.
In the following pages is it correct that the UDF strategy is set out - that is on page 89 - and that is basically the setting up of these structures, the alternative structures, from within communities and from within the country. Is my summary correct? --- That is correct, yes.
It says that there is mass movement, which caused the Community Councils and certain other structures to collapse. The document then deals with alternative structures, which brought about the collapse or the limiting of third tier government, as can be seen on page 92 of annexure A, is that correct? --- Yes, that is correct.
And, although it is not necessary to deal in detail for purposes of your application in my humble opinion with these, I think it must just be mentioned - is it correct to say that the document then deals with almost every aspect of community life in South Africa, the media, alternative media, education, alternative education ... (inaudible) ... solidarity with the ANC/UDF, etcetera. --- That is correct.
And on page 208 of Volume I there is the conclusion after this study and overview were done. --- Yes, that is correct.
And on page 211 is it correct that the conclusion is that the ANC/UDF constitute a political rather than a military danger? --- That is correct, yes.
And you will notice that on page 208 to 212 the conclusion is that in fact the biggest danger constituted is the ungovernability, and is also the political danger, winning the hearts and the mind of the people, as it is
called. Is that correct? --- Yes, that is right.
Now, from the application's point of view of more importance would be the suggested counter measures. Is it correct that the statutory document then goes over and it actually sets out a range of counter measures to counter the revolutionary struggle, the ungovernability, the various alternative structures? --- That is correct.
CHAIRMAN: Where does that appear?
MR DU TOIT: This would be from page 224 of the document to 256, and I will refer more particularly to page 240, and could I ask the Chairperson and the Committee Members to please page to 240. One of the counter measures announced or suggested is the strategy of employing special constables, is that correct? --- Yes, that is correct.
The first new paragraph on page 240, and the second sentence I've roughly translated. Is it correct that it says, "An effective physical wedge against the tyranny of the Comrades must simply be created from the ranks of the blacks themselves through special constables and community courts." --- Yes, that is correct.
The strategy seems to be that from within the ranks of the blacks, as it is called here, there would be created a physical wedge which would be effective, and which would come about in the form of special constables and community courts. Is that correct? --- Yes, that is correct.
On page 241, if I could ask you to page there, the idea is that, as I read the document, the underlying portion, is that the moment the local perception exists that the Comrades do not physically dominate they would
become rather ineffective. --- That is right.
The special constables must dominate physically. --- That is correct.
And therefore the Comrades would, by way of perception, not be effective. --- Yes, that is correct.
On page 242 there is now the actual suggestion that an auxiliary force or a special constable force be created. In paragraph 2 on page 242, is that correct? --- Yes, that is right.
And in (iii), that's the last paragraph, again there is the suggestion that an effective physical wedge against - or for the tyranny of the Comrades would be created from within the ranks of blacks themselves, as it is stated there. --- That is correct.
On page 243, in the paragraph marked 2.2, there is the reference now to what happened in Rhodesia, where there were Security Force Auxiliaries used at a late stage of what is called the revolution or counter insurgency in Rhodesia, is that correct? --- Yes, that is correct.
We do not have time to go through this quotation which appears from page 243, but there are certain important moments to which I would like you to draw the Committee's attention. Would you see that in paragraph (ii) on page 243 the Security Force Auxiliaries there initiated by the Special Branch in Rhodesia created own local militia? Do you see that? --- Yes, that's correct.
And the idea was, as can be seen from the next page 244, to regain and consolidate their hold on the tribal trust lands. That would be the first new - the second new
sentence on page 244, and in the third sentence from the top. --- Yes.
To consolidate and hold the tribal trust lands. And what is important, two sentences downwards there's reference to a clear and hold type of operation. You clear the area of anti-Government elements and then you hold the land by putting the militia in there. Is that correct? --- Yes, that is correct.
We will not deal with the full quotation, but I think it's perhaps necessary that you should also draw attention to what is said on page 245 at the bottom in (vii), that,
"Land would be dominated, but when the Security Forces leave the terrs ..."
referring to the terrorists,
"... would then return."
--- That is correct.
And over to the next page on 245, the second sentence,
"Allegations that they use their position ..."
this would now be the militia employed there to retain areas,
"... to intimidate the rural folk to vote for the Bishop are probably true, but the auxiliaries do present a degree of stability which the trust lands have not known for some years."
Is that correct? --- Yes, that's right.
There are two remaining important observations here which I would like you to just draw the attention of the
Committee to. The very last two words on page 246, the same page, underlined,
"Thus by the time the auxiliaries were proving a viable scheme the whites in Rhodesia had run out of time."
Is it correct that the document at a later stage warns that these special constables be brought - must be created as a force quickly before the same happens, before it is too late? --- That is correct.
Now, there is then a discussion as to where this auxiliary force to be created in South Africa was to be situated, is that correct? --- That is correct.
Would you look at the bottom of page 248, and then over to 249. The question is what should be the name of such a force. That's the very first paragraph, Mr Chairperson, on page 249. Secondly whether that new force should be attached to the South African Police - to the South African Police Force or to the Municipal Police, or thirdly, whether it should be a third force on its own. Is that correct? --- That is correct, yes.
The pros and the cons are discussed on the same page, and there is then a suggestion that it should be attached as an auxiliary force to the South African Police Force. --- That is correct, yes.
Could we also draw your attention, Mr Chairperson and Commissioners, to page 255, the third new paragraph. Is it correct that at this stage there were a few special constables already employed? You'll see the middle paragraph, which will roughly translate.
"Through the special constables the South African Police have, within a few
"months, already freed the black townships inch by inch from the grip of the alternative structures."
Do you see that? --- Yes, that's correct. That was before they were deployed her in Natal.
And the idea is now to - or the suggestion is made to employ thousands of the special constables and attach them as an auxiliary force to the South African Police Force. --- That is correct, yes.
This is then what you knew of special constables when you were employed at the Divisional Headquarters and when you went to Trust Feed as station commander. --- Yes, that is correct.
Now, in the document - just to complete the picture, is it correct that in the research document of the Catholic Institute for International Relations it is shown that a number - that would be annexure G, Volume III, on page 691, if I could ask you to just go to that. 691, the middle paragraph starting with, "This situation," and the second line.
"An additional 16 000 "kits konstabels" ..."
"... and Municipal Policemen were added to the police force."
This is on page 691, I am sorry.
"Many known members of the vigilante groupings were drawn into the new forces, and the strength of the entire South African Police is only 48 000 at that time. The deployment of an
"additional 16 000 new policemen meant that the numerical strength of the SAP was increased by a third."
It would appear then that about 16 000 special constables, Municipal Constables, were then in fact attached - employed and attached to the South African Police Force, is that correct? --- That is correct, yes.
I think you have said this morning that they were then deployed countrywide, and they were attached to the various Riot Units, just to complete the picture. --- That is correct, yes.
And to further complete the picture as far as Pietermaritzburg is concerned, could I ask you to go to page 789 of the research document, annexure G. Page 789. Do you see the heading there, "Pietermaritzburg Gets Kits Konstabels"? --- Yes, that is correct.
Would you just read out the first two paragraphs, ending with the last paragraph on the next page please. Just read that, thank you. ---
"On the 1st of March 1988 Adriaan Vlok, Minister of Police, announced that special police might be sent to Pietermaritzburg if they were needed for the maintenance of law and order. The next day it was revealed that 300 special constables had started duty there the previous night. The political affiliations of these ... "
Of those. ---
"... of those who were trained had not
"been screened prior to their recruitment. Brigadier Millet, Vlok's press secretary, said that the constables understood that they must not take sides. He went on to explain that the police were not allowed to take part in any extremist organisations like the UDF or the AWB, but could be part of an organisation like Inkatha."
And the next paragraph. ---
"The "kits konstabels" had all been recruited from the Pietermaritzburg area, and had been armed with shotguns. Their role was to reinforce the South African Police."
And the next paragraph on the next page please. --- "Despite alarm expressed by the Pietermaritzburg Agency for Christian Social Awareness and the PFP that the training of the constables was inadequate Brigadier Millet said that the special police were extremely popular with the local people in various parts of South Africa."
And the next first line - sentence. ---
"A week and a half later at least five "kits konstabels" were dismissed on account of alleged involvement in crimes."
Now, if it is correct that 300 special constables came to Pietermaritzburg on the 1st of March of 1988 what, /according
according to you, would have happened to them? Where
would they have been deployed? --- They were deployed in the flash points or the unrest areas where the violence was.
And to what would they have been attached? What unit or what section, the special constables? --- To the Riot Unit.
Now, it is common cause that a couple of months later, on the 2nd/3rd December 1998, the same year, a couple of months after the "kits konstabels" or the special constables came to 'Maritzburg, you employed and used these special constables in the Trust Feed area. --- That is correct.
And they were brought there on the instruction of the officer commanding of Riot Unit 8, Major Terblanche. --- Yes, that is correct.
How did you see that as against the strategy which you have drawn the attention of the Committee to, Mr Mitchell? --- I saw it falling within the strategy.
Although it is not necessary in my humble view to deal with the matters in detail, and it will be dealt with else where I would imagine, the counter measures also include measures directed at the use of the media, is that correct? --- Yes, that is correct.
Counter measures in the church sphere. --- That is correct.
Would that include certain personalities such as the Reverend Allan Boesak? --- Yes, that is correct.
Dr Beyers Naude? --- That's correct.
And Archbishop Desmond Tutu? --- That is correct.
Is it your view that the strategy was indeed implemented? --- Sorry, say that again.
Is it your view which the strategy which is set out in annexure A, the strategy document, was indeed implemented in practice? --- Yes, it was.
Can we now go back to your affidavit on page 24, paragraph 97. Page 24 of Volume I in paragraph 97. You have now set out the strategy, and it would appear that indeed thousands of special constables were attached to the police force. What was the general attitude within the circles that you moved as far as this province, Natal, is concerned? --- It was said that - and repeatedly said, that not a further inch of Natal was to be lost to the UDF/ANC.
And what was the stance in respect of Inkatha in this total strategy? --- The police sided with Inkatha, and they also instructed them on counter tactics against the Comrades, who were armed and trained to fight against the police, SADF and Inkatha.
You were also appointed as the stratkom officer for the division, is that correct? --- That is correct.
Just briefly, although again it's not in my view relevant in detail, what is the - in paragraph 100 you just mention it. Briefly what was your function as stratkom officer for this division, the Pietermaritzburg division? --- Okay, it's the strategy that was recently revealed by Paul Erasmus from the Security Branch. It dealt with strategies that were sent down from head office, normally the Security Branch. They weren't allowed to be sent out to our districts, the various districts in their entirety. They had to be reworked and
reworded before they were sent out for implementing. They were usually between top secret and secret documents.
Generally speaking what were the thoughts at this time within those circles on dealing with unrest? You make three points by way of summary in your notes in paragraph 104. --- It boiled down to undeclared civil war between Inkatha/Government Security Forces and the ANC backed by the UDF. I was taught to ... (incomplete - end of Side A, Tape 3)
Now, in 104 you've also made notes in respect of certain thoughts. --- Yes, there were certain thoughts at the time with the unrest, was that not an inch of Natal was to go to the UDF/ANC irrespective of the costs; that the creation of no-go areas provided a safe haven for Inkatha, and they then only had to protect themselves from attacks from outside the area.
Is that the so-called clear and retain strategy that was born from Rhodesia? --- That is similar, yes.
And then please proceed. ---
"As a counter measure to the black solidarity that most of us learned to fear the violence was kept within the confines of Inkatha and the UDF. The Security Forces sided with Inkatha, and this kept the focus away from the whites. The violence would appear to be black on black."
"The violence was suddenly pushed up in any given area. In the case of the Trust Feeds the attacks by Inkatha on
"the fateful night. The effect was to weaken the opposition so that they gave way and the area was left in the hands of pro-Security Forces and pro-Inkatha or pro-Government people. Houses of activists were set alight and attacked. Here the special constables, as a third or auxiliary force, played an important role. I refer to now, "Everyone is afraid, the changing face of policing in South Africa," a research document of the Catholic Institute for International Relations published in London in 1988. A copy is annexure G."
Now, what you are referring here, just to be brief, because the document is before the gentlemen, is that it would appear that the special constables were involved in violent incidents all over the country according to this document. --- That is correct.
At so-called flash points. --- That is correct.
The research document also refers to a clampdown on news. Was it your experience that in the mid-80s there was indeed such a clampdown on news? --- Yes, there was.
Would you share your views which you have set out in paragraph 108 with us please? ---
"One must also look now at how disinformation and the clampdown on the media were used. The average white South African male was sitting at home on a Saturday afternoon drinking beer and watching rugby, while the townships
"were ablaze with violence and unrest. We were ordered to stop such unrest at all costs."
The unrest situation was limited basically to the township areas, is that what you are saying, news-wise? --- That is correct.
Now, in paragraph 112, although I am not going to take you through the whole of the paragraph, at the trial you were questioned by Mr Justice Wilson on certain aspects, is that correct? --- Yes, I was.
Now, then you ended that discussion during your cross-examination by stating that,
"The riots shattered the foundations of many families of the police."
That's at the bottom of page 27.
"It shattered the foundations of the South African Police as a whole."
What do you mean by that, that the foundations were shattered as a whole? --- It ended up that many policemen lost their homes, lost their families, and it ended up that some of us ended up as arsonists and murderers.
You're referring to the moral foundations of the force as an institution ... (intervention) --- Yes.
... now with hindsight. --- Yes, I am.
And is it correct that you say that you then became prepared, as you saw it, to fight fire with fire? --- Yes, I was.
And there would now be terror on the terrorists, as you see it? --- Yes, that is correct.
By the authorities. That you say in paragraph 114.
--- Yes, that is correct.
You have also studied the documents contained in annexure B, is that correct? --- I have.
I do not intend dealing in detail with the whole document, but will, as requested by you, draw attention to certain of the important aspects. Can I ask you to page to page 339 of annexure B. This would be the manual or the notes, lectures also, available at the Divisional Headquarters. That's a covering letter from head office addressed to senior people within all the sections of South Africa on a national basis, is that correct? --- Yes, that is correct.
The document is described as secret. --- Yes, it is.
And on page 344 the document is called, "Counter Measures Overflow of Violence into White Areas." Is that correct? On page 344. --- Yes, I've got it.
Can I draw your attention more specifically to the next document on page 346, the translation would be a quelling or preventing of riots in a small rural black township. --- Yes, that's correct.
May I ask you also to then page to the next page 347, and paragraph 4. Now, I am translating. It says, "The fact that members of a force are well known complicates clandestine operations." --- That is correct, yes.
"Because all members of a force are well known on or in small places, and even their first names are known in many instances, it is usually necessary to make use of members from elsewhere to operate secretly in the area." Is that correct? --- Yes, that's correct.
"It again has its drawbacks in that a stranger is immediately viewed with suspicion." --- That is right.
Now, just to draw it through to your situation, in what vehicle did the special constables arrive in Trust Feed? --- They came with an unmarked kombi.
What clothing were they wearing? --- They were dressed in civilian clothes.
Were they known in the area? --- No, they were not.
And where were they put in order not to arouse suspicion? --- They were posted at Mr Gabela's house, the Inkatha leader of the area.
Now, from page 19, your typed 19, but 28 of Volume I, you go back to Trust Feed, is that correct? You will see from paragraph 118. --- Yes, that's correct.
You describe firstly the special constables as an auxiliary or third force. You say that policing acquired a black face, and that black offensive power was added to the Riot Units, is that correct? --- Yes, that is correct.
So when you came to Trust Feed you became the Chairperson of the Local Management Centre. --- Yes, I did.
I do not intend leading you through the paragraphs dealing with the Trust Feed incident in detail, because the judgment is there, and you have set it out from 1 to 2, paragraph 1 to 2, but what I think I must ask you is did you receive instructions to place the special constables at Gabela's house? --- Yes, I did.
From? --- Captain Terblanche.
And what were they going to do in Trust Feed? --- /They were
They were going to render assistance to Inkatha on the evening of that attack.
As what did you see them? --- I saw them as an assistance or third force.
And how did you see the strategy that you knew of in relation to what was done by the specials that evening with the assistance of the Inkatha Youth Brigade in Trust Feed? --- I saw it falling within this strategy document and the relevant documents that we've referred to.
Now, is it correct that Major Terblanche instructed you to bring the Youth Brigade leader, as well as the Inkatha leaders through to Morawa House in Pietermaritzburg? --- Yes, he did.
To do what? --- They were to be addressed by Mr David Ntombela, the warlord for Inkatha.
And when you returned what was to happen? Without reference to a paragraph now. I am just leading you briefly. When you returned to Trust Feed after your visit to 'Maritzburg what was to happen? The specials would come to Trust Feed, the special constables? --- That is correct.
And? --- The attack would be launched that night against the UDF activists and the UDF elements within the area.
Who would take part in the attack? What was the agreement? --- The Inkatha Youth Brigade, or the supporters of Inkatha, Inkatha members, with the assistance of those special constables.
The records show that the attack took place. Houses
were burned down and so forth. --- Yes, it was carried /out.
And the Riot Unit, did they visit Trust Feed before the - the official Riot Unit now. Did the official Riot Unit visit Trust Feed on the morning, the Friday morning of the 2nd of December of 1988? --- Yes, they did.
To do what? --- Their purpose was to clean up the area of weapons and to make the resistance less against the offensive that was going to take place that evening.
When you later that evening visited the area you found several structures burning. --- Yes, I did.
Is it correct that you gave an instruction that the house of Mr Mbongwe was to be burned down? --- Yes, I did.
To whom did you give the instructions? --- I gave that instruction to the special sergeant.
Can I draw your attention to paragraph 136 on page 31 of the affidavit? Accused No 1 in your trial was Captain van den Heever, is that correct? --- Yes, that is correct.
Did you, on the day prior to the sweeping operation by the official Riot Unit visit the area with Captain van den Heever? --- Yes, I did.
Would you please deal with paragraph 136. --- Yes. During the operation Captain van den Heever said to me that should the special constables work in the area I must assist them by picking up any shotgun doppies that may have been left behind at the scene.
The cartridges, spent cartridges. --- The spent cartridges.
Yes, and did he tell you anything else? --- He
said that it also had happened - similar things had happened at Hammarsdale, and that at one incident they'd planted false exhibits in terms of cartridges, false cartridges and things like that.
What is the same thing that he was referring to? --- That there was attacks taking - attacks took place by the special constables.
Other similar incidents. --- Similar incidents, that's correct.
Now, I want to deal with the morning after the attack. Did you go to the area? --- Yes, I did.
Who arrived at the scene? --- Captain Terblanche and Lieutenant van den Heever.
Did you inform the Captain of what happened? --- Yes, I did.
Who else arrived on the scene, referring to paragraph 151? 151 on page 33. Who also visited the scene that morning afterwards? 151, paragraph 151. --- Paragraph 151?
Yes. Who came to the police station at New Hanover? --- Oh, after that incident, yes.
Yes, after the incident. --- I was visited by Brigadier Marks and a Brigadier van der Westhuizen from Pretoria head office, and a Captain van Zyl, who was a divisional CID officer. They questioned me about the incident, and initially threatened to lock me up. I explained to them what had happened. Obviously this questioning had originated from the allegations made by Mr van Wyk and Mr Bertin.
And then? --- They then left, they went out of my office and consulted privately, and then Captain
van Zyl returned to me and said to me that I must not worry about it.
What did you infer from that remark? --- Well, I drew the conclusion that they would then - they understood that there was a mistake made and that they would cover up for it.
And was it? --- Yes, it was.
Now, going back to paragraph 150, did you have a meeting with Captain van den Heever near the Albert Falls Dam some time after the attack? --- Yes, I did.
Just briefly what transpired during the conversation? --- He said to me that I mustn't worry about this incident, that there were other units operating in Pietermaritzburg, but he didn't give me the details of that. He said to me that if anything should happen to him, or if there was pressure put on him, that he would mention that Minister Vlok - mention what Minister Vlok had told him at a meeting, and which had far-reaching implications.
And what else did he say, the last sentence there? --- Yes, he said he would use this information if pressure was put on him regarding this Trust Feed case.
Now, it is common cause that Mr Justice Wilson found you guilty, and that after the lengthy judgment he made certain general remarks, is that correct? --- Yes, he did.
Can I ask you to go to paragraph 156?
MR NGOEPE: I am sorry, can I just interrupt you there. I am sorry about that. Back to 150. That last paragraph, that last sentence.
MR DU TOIT: Yes.
MR NGOEPE: I can see clearly that the word there is information, but when I read it I was under the impression that the context would suggest that - would suggest influence. Am I wrong in that thinking? Looking at the last sentence of paragraph ... (intervention)
MR DU TOIT: No, I think - I am sorry, I have actually asked my learned junior to just make reference to three paragraphs. I wanted to come back, but I can deal with it now. Mr Mitchell, just before we come to the judgment could we go to - just after you realised that the incident would be covered up, as you said it was, did you - you were then sent onto a border trip to Maseru Bridge, is that correct? --- Yes, I was.
And it was then that you heard that Major Terblanche was murdered by a special constable. --- Yes, I did.
Or killed, and that the special constable was then shot by members of Murder and Robbery Squad, is that correct? --- Yes, that is correct.
Did you discuss this incident with anybody? --- Yes, on my return to Bergville I spoke to van den Heever telephonically about this incident and related matters. He told me that the special constable was taken out because he had a green pocket book with a record of the activities committed by the members of the Riot Unit, and that this special constable was going to reveal the information.
WILSON J: Could I also raise one matter? My brother has mentioned paragraph 150. When Mr Mitchell gave evidence a few minutes ago in setting out the last sentence he said, "He would use this information if the pressure was put on him regarding this case." It should be "this
information." --- "This" is the word. That's right, M'Lord.
MR NGOEPE: In that case, Mr du Toit, it solves my problem. It solves my problem.
MR DU TOIT: I think it does, yes. Now, as I have said, after the judgment certain remarks were made, and I would like you to come to paragraph 156. Would you read the quote that you have drawn there from the judgment by WILSON J. --- After sentence WILSON J made certain remarks. The Judge said an inquiry should be held into the part played by the Joint Management System in the events at Trust Feed.
Ja. --- And whether it was desirable that members of the South African Police should be involved in such an organisation, a counter revolutionary body. I quote,
"The next matter which I think should be inquired into is the part played by the Joint Management Committee or System, if any, in the events at Trust Feed, and whether it was desirable that members of the South African Police should be concerned in such an organisation, a counter revolutionary body. It appears from the evidence of accused No 3 that the South African Police in fact played - and played ..."
Or played. ---
"Or played a leading role in this organisation. Connected with this is
"the part played by accused No 3 and his predecessor as station commander at New Hanover in the formation of a Landowners Committee, which was clearly of a political nature, and whether it is proper for members of the South African Police, particularly commissioned officers and station commanders, to participate in the formation of such political bodies, which will then be involved in political disputes which exist in this country."
And the next paragraph, read that please. ---
"It is clear from accused No 3's evidence that he and Captain Terblanche contemplated using members of the South African Police to assist one of the political parties to the extent of committing murder on their behalf, and I think it should be in the general interest that there should be a full inquiry as to whether similar operations have been conducted in the past by the Riot Unit or by Captain Terblanche or by any other officer."
Was this inquiry into these two vital aspects ever held? --- No, it was not.
Was it in your interest that there should have been such an inquiry? --- Yes, it was.
Did I ask you to disclose the information which you have there? --- Yes, you did.
And did you? --- Not at the time, no.
Paragraph 158. You have a view that you express there, please. --- Sorry, say it again.
Yes, in paragraph 158, please express that view. --- Okay.
"It was in my interests that it should be revealed that there was a strategy; that there was a mistake made by the Security Force members because of the Nationalist Government's policy, and that the police were used by them to do their dirty work. I for one would not be in the position I am today had I been a motor car salesman."
Now, can we deal with paragraph 159. With what motive did you commit the acts on the evening/morning in question? --- It was with a political objective.
And what was the objective as you stated it there in paragraph 159? ---
"It was to counter the revolutionary onslaught of the UDF/ANC, and to assist Inkatha against the UDF/ANC."
Did you outside of the scope of your duties? --- Yes, I did.
Outside? --- No, I did not.
And did you receive orders? --- Sorry, again?
Did you receive orders to commit those acts? --- Yes, I did.
You have said from Captain Terblanche. How did you see yourself as being engaged? --- I saw myself engaged in countering or resisting the struggle of the
WILSON J found that your acts were not committed with a political motive as political is normally understood, but he did find that you did not seek to satisfy a personal motive. Is that correct? --- Yes, that is correct.
Was there any personal motive involved here? --- No, there was not.
Did you receive any remuneration? Were you involved in the acts because you were being paid? --- No, I did not.
CHAIRMAN: This was not one of the events that resulted in your getting a medal? --- No, M'Lord.
MR DU TOIT: At paragraph 145, if we may just return to that for the moment, Mr Chairperson, on page 32. Did you seek the death of women and children, Mr Mitchell? --- No, I did not.
And that was accepted by the Trial Court, the Trial Judge and the two Assessors, is that correct? --- That is correct.
I have a reference, if I may. The reference in respect of women and children is found on page 616 of Volume III of the judgment, and the second is 614. Pages 616 and 614 in Volume III, referring to the judgment of WILSON J and the two Assessors on mitigation and mitigating factors. 614 and 616, Mr Chairperson. Mr Chairperson, my learned junior, Advocate Naidoo, will conclude the examination with your permission.
QUESTIONED BY MR NAIDOO:
Mr Mitchell, are you now desirous of making amends? --- Yes, I am.
Yes. --- Although it may be impossible to do it, but I am desirous of that.
Yes. Now with hindsight, having gone through the experience you have, have you acquired any greater understanding of the acts and the situation? --- Yes, I do understand now why it happened and how it came about.
And do you have any better understanding of the struggle of the liberation movements? --- Yes, I do. I understand now why and what they were struggling for, and that just as much as they were struggling for their own freedom they were struggling for the freedom of the whites.
And is there now a shift in the values you used to hold previously? --- Yes, absolutely.
What is that shift? --- I've become a Christian. I am able to ... (incomplete)
Yes. Now ... (intervention) --- ... to rethink what I did in those years and why I did them.
Yes. Insofar as you've set yourself down in paragraph 161, that you've become a Christian and understand the value of forgiveness, will you let us have your thoughts on that? --- Yes. I understand that forgiveness does not come cheaply.
(END OF TAPE 3 - START OF TAPE 4)
MR BRINK: But how did that house come to chosen, or was it just a random shooting? --- Yes, Sir, this is where I have a bit of a problem in being able to explain why that particular house was taken out. It's something that His Lordship, the Honourable WILSON J, and myself didn't agree on in the trial, and I can't explain why the special constables chose that particular house.
You were in command of that group. --- That is correct. I was in command. I was the one that loaded them off there, but I can ... (intervention)
CHAIRMAN: What did you say? You were the one ... (incomplete)
WILSON J: Who loaded them off there.
CHAIRMAN: Who loaded them off there. --- Yes, which - I loaded them off at the shop, which is a short distance from the house. I am in this position now that I've been as honest as possible with the Commission. I have got nothing to lose. It would have been far easier for me to explain my presence at the house had I gone with them to this Commission. I don't want to withhold any information, I don't want to be seen to be withholding information, and I said to my advocate that if it stands between me having to spend 30 years in prison or saying that I was at the house I am not able to do it, because I wasn't there. So I have this bit of a problem. But I don't want to be - the judgment and the decision that's been made in the judgment, I don't want it to become the issue in this whole case. I wanted to come and explain the background and the circumstances and the situation we were in at the time, and how these things came about, things that were not explained at the trial, and was not explained fully, and the information that I withheld because of my blind loyalty and my blind stupidity at the time.
MR BRINK: Mr Mitchell, for my part I accept your frankness. You have accepted responsibility for the massacre. --- Yes, Sir, I accept that what we did and
what we were involved in are the things that culminated in /a lot of
a lot of innocent people being killed. It's really one of the most tragic things that has happened in our country. But I just wanted to also point out the other - the other thing, that how it came about, and how we were mis-used.
One final question, Mr Mitchell. If I can refer you to Volume I, page 33, paragraph 150, and that relates to the then Minister of Law and Order, Mr Vlok. You say that van den Heever told you that Vlok had told various policemen at a meeting that he had information or - information relating to various problems which had far-reaching implications. Do you see that? --- Yes, Sir.
Did he - did van den Heever tell you what that was, what the information was? --- No, he mentioned that it was something that was said at a meeting, but I didn't want to prompt him because I know how it goes within the ranks. They just say to you, "No, well we can't say." You know, it becomes a need-to-know basis, and sometimes the less you know the better.
Now, we know that there had been a cover-up in the initial investigations into the Trust Feed murder case. --- That is correct, Sir.
Was van den Heever involved in your view? --- In the cover-up?
No, in the murders. --- No. No, he was not.
He was not? --- No.
Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR BRINK
CHAIRMAN: I'd like us to go back to the beginning of the events of that fateful night. --- Yes, Sir.
When was the decision taken that this house or these houses were to be attacked? --- Sir, the decision was
taken at a meeting at Morawa House in Pietermaritzburg when the leader of Inkatha and the vice-chairman of Inkatha and the Youth Brigade leader and myself went to the Riot Unit and we accompanied Captain Terblanche to
Morawa House. At this meeting it was arranged that the unit would first do an operation in the area, and that night the attacks would take place.
When was that decision taken? --- The decision was taken for us to go to Morawa House.
The decision at Morawa House, when was that taken? --- I am not too sure - do you want to know the date that we went to Morawa House?
The date when it was decided that this attack should take place. --- I can't remember now, because it was prior - just prior to the attack.
MS KHAMPEPE: Was it not on the 30th of November when you accompanied Mr Gabela to Mr Ntombela ... (incomplete)
WILSON J: Was it on the Wednesday? --- Yes, I think on the 30th that we went through. It's the day that we went through to Pietermaritzburg.
MR DU TOIT: Mr Chairperson, I think the record will show that it was either on the 27th or the 29th of November. It was either the 27th or the 29th of November. It was just a couple of days before the Friday.
CHAIRMAN: Were you the highest ranking policeman at this meeting where this decision was taken? --- No, Sir. Captain Terblanche, as the head of the Riot Unit, was the person that set up the meeting, the person that took us there. I've never been there before. It was my first time to go there. It was my first time to meet David Ntombela. I've subsequently learnt a lot more about him
from the trial and after the trial, and then through certain statements that particularly are made in this one book.
Well now, the decision having been taken, let us now talk about the execution of that decision. Were you in charge of the execution of that decision? --- Yes, Sir. It was - yes, it was left in my hands as the station commander of the area, and the special constables were then placed in my area.
Who were you assisted by? --- In terms of my second in command, or ... (incomplete)
Can we have the names of the people that were immediately assisting you? --- Okay, in terms of the operation that was carried out the operation was - there was no other people from my station involved. It was an operation that was done by myself entirely in co-operation with the Riot Unit.
In co-operation with the ... (incomplete) --- In co-operation with the Riot Unit.
With the Riot Unit? --- That is correct, Sir.
How many comprised the Riot Unit on that occasion to carry out this particular operation? --- There was two operations. There was the operation - the clean-up operation before in the morning.
Yes. --- And then that evening it was the four special constables and myself.
Yes. Now, the clean-up operation, were you involved in that as well? --- Yes, Sir. We were involved in that as well.
That happened during the day. --- Yes, that happened in the morning, the morning before the attack
And how many of you were involved in the clean-up operation? --- There was quite a lot. There was - I'm just guessing now because it's a long time back. It's - you know, it was in 1988, so I'm guessing that there must have been more than 40 people.
More than 40? --- Yes.
And were many people arrested in this clean-up operation? --- Yes, there was - not in terms of that were detained, but in terms of they were taken out of the area and assembled on a rugby field, or on like a soccer field. There was quite a lot that was taken out, yes.
Now, then at that stage, this is at the clean-up operation stage, were the targets identified, the targets that were to be attacked later that day? --- Yes, they - what had happened was that we weren't very - and I personally was not really satisfied with the - that it was very successful because we didn't manage to pick up everybody that we were looking for. It wasn't as successful an operation as I thought it would be.
Yes. --- But at the ... (intervention)
Was it - sorry.
WILSON J: As I remember it you had in fact prepared a list of names, hadn't you, which the Riot Unit then tried to find? --- Yes, that is correct, Sir. That is quite correct.
CHAIRMAN: Now, at that stage were the buildings or the houses that were going to be attacked that night, were they identified at that stage? --- No, Sir, because the attack by the Inkatha people - before I got to the area the attack was launched already by the Inkatha - can
I say hierarchy within the area and their supporters. That attack had already taken place.
Now, then the events that led to the assassination of these people, or the murder of these people in that house, when did that commence? When did you get there? --- Sir, that was in the early hours of the morning. It must have been around about 1 o'clock in the morning.
How many of you went there? --- The attack was conducted by four people, by the four special constables.
And were you not present? --- No, Sir, I was not present.
I understand you just dropped them off in an unmarked car. Is that what happened? --- No, Sir. No, I dropped them off with a police van.
A police van? --- At the shop, which is some distance away from the particular house.
And you knew where they were going to? --- I am sorry, Sir?
You knew where they were going to go to? --- Yes. Yes, I knew that they were going to take out the Comrades in the area.
Now then, when you said that the wrong house was attacked, what does that mean? Does that mean that the wrong house was identified, or that there was a mistake in the attack although the house ... (intervention) --- Yes, Sir, there was another house between the shop and where this particular house is. It's difficult for me to explain to you, but it lies between where they came from and where the house is that was attacked. There was a house with an underground cellar in it. It was - the information was - we didn't have information as such that
it was an underground cellar. The information was that the Comrades would disappear. They would disappear in the area. We suspected that it would be something to that - a similar structure, an underground cellar or something, a very similar structure. This particular one was covered with a carpet and had chairs on top of it. Let's say the entrance into this cellar had a carpet and had chairs on it. It was inside the house.
Now, the people that carried out the attack, were they all members of the police force? --- Yes, Sir, they were special constables. Yes, Sir, one of them was a sergeant and the other three were constables.
And who had supplied them with arms? --- Yes, Sir, they had their shotguns with them and their normal ammunition.
And what were you to do whilst they were attacking this place? --- I had another two people with me that didn't know of this operation. The idea was to drop them off and to leave them in the area, and for me to get out and to pull out of the area.
So is the position that after you dropped them you left the area? --- No, what happened is that the attack took place before I could get out. They returned to the vehicle where we were before I could leave.
And up to that stage did you know how many people they were going to take out? --- No, I never ever - there's something I never really thought about. It was - I never ever expected that 11 people would be killed.
Did you know the identity of the people that they were going to take out? --- Yes, I - the target, the people that they targeted, the instructions that I gave
them, was that they must take out the Comrades. That would be UDF Comrades.
Yes, Comrades, but the individuals, the names, was that known to you? --- No. No, the names weren't available.
Then what happened after they'd returned to the vehicle? --- After they got back to the vehicle we returned with two of them and we dropped them off, but before - when they got out the vehicle was the time that I said to them that they must go back and burn the house of Mbongwe's down, the house that was an issue - or that was mentioned earlier on about the civil claim.
The house that had to be burned? --- Yes, it's one of the houses that wasn't burnt that night.
And the house in which the people were who had been killed, that house was also burnt? --- No, it was not burnt. No, Sir.
It wasn't burnt? --- No, Sir.
WILSON J: Perhaps I could intervene at this stage, and I'm relying on my memory, I can't find the passage in the judgment, but it may assist my learned friend. My recollection, Mr Mitchell, was that the evidence was that there was this wake taking place in the house that night, that there were lamps or candles burning, and that that led to the confusion. Because what was contemplated was that after the raid that morning the Comrades will gather in some house where they could be taken out, and unfortunately, very tragically, there were lights in the other house which caused the wrong identification. That was evidence was led. --- Yes, Sir. Sorry, yes, Sir, that was where the confusion came in, that is correct.
CHAIRMAN: Was that evidence given by one of the four attackers? --- Yes, Sir, I think it was the evidence that was given by everybody - I mean of the attackers. Or it was the evidence that came out, yes, Sir.
Were you required to submit a report to your superiors on what had happened? --- Yes, Sir. What happened the next morning when we returned, and I saw that so many innocent people had been killed, and I saw the disaster that it was, Major Terblanche arrived at the scene together with Captain van - well, Lieutenant van den Heever. I then told Major Terblanche about it, about what happened. I told him 90% of the story, but then we were interrupted by some other police members. So he then said to myself and to van den Heever we must go and speak to the special sergeant, and then report back to him.
Were you required to submit a written report of what had happened? --- Sir, what happened is I submitted a preliminary report, but I never mentioned any of this in it because I had already mentioned it to Major Terblanche. Major Terblanche then said that the special constables must be pulled out of the area that same day, so within a couple of - an hour or so they were pulled out of the area.
WILSON J: To add something to that, you made several statements. --- Yes, Sir, I made - I did eventually end up making several statements, but none of them were worth anything.
MR NGOEPE: How were the special constables to identify the correct house? --- Prior to going to the area there was a meeting between myself, the special
sergeant and a member that was with him and Mr Gabela, and the area was discussed where this was going to take place, and mention was made of the coming together of the Comrades in a house, and it was explained to them by Mr Gabela where this house is. Because I am not fluent in Zulu unfortunately, and I took it that - well, the explanation given there at the scene that they knew where it was.
No, but in terms of your personal understanding of the operation how would this house be identified? --- You see it's a specific area behind a shop, behind a shop of Mr Mbongwe, and the house was behind the shop. There's a house next to the shop and there's some houses behind the shop.
Can I just ask you, were they supposed to - because you made reference to a possibly lit house during the night. Were they supposed to attack any house that could have been lit at that time of the night? --- No, Sir. No, that wasn't the - that's not what I said to them, that they must attack any house. I mean it was a - it's difficult for me to explain it.
No, I understand your answer. You've said no. I understand your answer. Can I ask you the next question then? You see, when your counsel led you reference - extensive reference I must say - was made to documentation relating to the recruitment of special constables. Now, I don't want to go through every page with you, but I want to put to you is that from these various pages that were referred to, as also the statement of Mr Adriaan Vlok, and in particular Brigadier Mellet, when he said that the special constables were not supposed to take sides, the
overall impression I get is that special constables - the
official policy was that special constables should be used within the terms of the law, and not to commit crimes. --- There is a later reference to the effect that they must not be aligned with any radical organisation in terms of the AWB or in terms of the UDF, but that they can - that they can take sides like with Inkatha. That was maybe in theory, but in practice what happened is that the Inkatha - these special constables were all recruited out of Inkatha, out of the community as Inkatha members. These special constables were actually Inkatha card holders, the ones involved in this particular attack.
I appreciate that, but those were selected by yourself, this particular four. --- No, Sir. What happened is that they were supplied by the Riot Unit. In other words they were selected within the ranks of the Riot Unit themselves. I was not a member of the Riot Unit at the time by then.
Sorry, Mr Mitchell, you are not suggesting that every special constable in Natal was a member of the IFP, are you? You are not suggesting that? --- I am not - I can't answer you on that and say that every one of them, no, Sir, but I would hazard a guess that a large majority - a large group of them were.
Now, what I want to point out to you is that if you look at page 242, and this is the point I am trying to make to you - if, for example, you look at page 249, I am sorry. Page 249, there's a sub paragraph 2 there to which your counsel referred you. It says that the special constables should be drafted into or onto the existing South African Police, South African Defence Force and
Municipal Police Force. Am I right? --- No, Sir,
actually what they mean here is this question raised, where should they be attached to? Should they be a - to which particular of the armed forces should they become an auxiliary force to, or should they be a force on their own. So eventually the decision was taken that they would then be attached to the South African Police.
Well, what I am saying to you is that that is an indication that they were to be used in a lawful manner. --- Sir, I think the overt policy and consideration wasn't that there was anything cynical about it. It came about eventually in practice that the things went wrong.
But you don't know whether the idea of using the constables that night in the manner in which they were used originated from Captain Terblanche or whether it originated from authorities higher than himself. --- Yes, Sir. That's why I say we're at an extreme disadvantage with the death of Captain Terblanche, because he would have been the one that would have been able to assist me in explaining further up.
From the documents that we have been referred to - perhaps your counsel will deal with this in argument - I must just put this to you. From all these documents that we have been referred to in putting the lectures and the like I find no justification - no official justification for the use of the special constables in the manner in which you did that night. --- Yes, Sir. I won't argue with you on that point. I just - I think the idea was to describe my frame of mind. No, not only my frame of mind, but the frame of mind of the commanding officer of the Riot Unit, and the set up within the country and what was
going on at the time, and how it was going on. I also found it very difficult thinking back to 1988. It's a long time ago, and I think a lot of people have forgotten really how bad it was in the country at the time, the experiences. I won't say everybody, but I think a large majority of people have forgotten what it was like, and to see the despair and the difficulties that the Security Forces were having to control the situation that stupid mistakes like this were made, yes. There were stupid, stupid mistakes made by us. And I ... (intervention)
Mr Mitchell, that might have been so, but let me tell you that this question - I put this question to you because in your evidence you said that you saw this operation as falling within the strategy set out in the documents, and ... (incomplete - end of Side A, Tape 4) --- (Incomplete) ... the document on the - especially the one on the use of forces within the "plateland gebiede," or in the rural areas, that particular "lesing" or "handluiding" - lectures. It reveals the tone and the understanding of hitting hard and fighting fire with fire, and that was my understanding.
Yes, I have read it, but I understand it to say that you must hit very hard, but within the parameters of the law. --- Sir, I am not trying to justify what I did. I am trying - at all. I think I am trying to maybe explain my frame of mind, and that's what I've tried to do throughout this document, is not to have a court case all over again and to say that I am innocent, but just to describe the role played by other people within the case.
Something else. Professor Grazer, that is the gentleman who submitted a report in your favour - I think
it was him. In that report you are being described as somebody who was very ambitious. --- Yes, Sir, that is correct.
Do you agree with that assessment of yourself? --- Yes, I do, Sir.
Ambitious in what respect? In terms of wanting to achieve higher positions in the police force? --- Yes, Sir, that is correct, and to better myself.
Would that suggest that you would have done anything in order to achieve that? --- Yes, Sir, it does. It is sad to say it now, and it's very sad for me to look back on my life and to see how stupid I was to let my ambition get in my way.
You would do anything, including the killing of people? --- Yes, Sir, it eventually did revolve to that. It revolved to us becoming murderers and arsonists.
Well then, wasn't this - weren't these crimes committed precisely because of that, precisely because at all costs you wanted to enhance your position in the police force? --- No, Sir. No, that position or whatever wasn't the driving force or the reward for what I was doing. I was doing what my work is and what I understood within the context of the country was. For ambition-wise I studied very hard. I studied and became an officer at a very young age, and maybe at too young an age. So I think in terms of ambition I was prepared to study and to work hard for it.
No, I am not suggesting that you got that title of a lieutenant as a result of that. My question was were you not driven by the ambition for promotion to commit that type of crime? --- In terms of meaning that it
was a reward for me or something? I am asking. As a reward?
In terms of the authorities seeing that you are a committed policeman. --- It could be one of the factors.
Now, you have said that you committed these crimes -or rather this whole thing, this operation, was on the instructions of Major Terblanche. --- Yes, Sir, that is correct. That is where the whole thing was - between him and myself this whole thing was arranged, because he was then head of the Riot Unit.
You do not agree with the suggestion that you were seen that particular night and you fired some shots? --- No, Sir. I would have told you if I was there. I would have said to you today. I would have said I was there. I find it more difficult to explain this whole incident with my not being there. It would have been far easier for me to say, "Yes, I was there and this is why it happened." I find it very difficult, and I would never ever try and sabotage my chances or any possibility of getting a second chance in life just for that little, little factor.
Some of the victims were children, isn't it? --- Yes, Sir, that is correct.
You didn't expect children to be killed. --- No, Sir. No, that was not what we envisaged. Not what I envisaged, no.
But if you attack any house at 1 o'clock in the early hours of the morning wouldn't you expect that children would be there sleeping in that particular house? --- No, it was - what we thought would happen was that
the Comrades would have grouped together to defend off the area, that they would have been together, not that they would have had women and children with them.
Was your information that that house was being exclusively used by the Comrades? --- The information was that the Comrades gathered together in groups to defend off the area, because that whole particular area is a UDF area. They also used - in that particular area they used to scale the trees to use as a look-out for when the police came, things like that.
Who was in command of the operation that swept the area that morning? --- That was Captain Terblanche. You see, he was head of the Riot Unit and he was the one that organised that the Riot Unit come that morning to do that operation.
The instructions that you gave the constables with regard to that particular house was that they should just attack the house and shoot whoever was inside that particular house, assuming that it was the correct house? --- Yes, we envisaged that the Comrades would be armed as well, that there would be some sort of retaliation.
CHAIRMAN: You've told us that you were the secretary of the Joint Management System. --- Yes, Sir.
Did it have any other officers besides a secretary? Did it have a chairman or a leader of the Joint Management System? --- Sorry, Sir, just say that again.
You were secretary of the Joint Management System. Did the Joint Management System then have somebody else as an officer, as chairman or leader? --- No, I don't understand the question.
WILSON J: In Pietermaritzburg, before you went out you
were secretary to the Joint Management Commission. Now, who was the chairman at that stage? --- Okay, of the sub JMC, which is the Pietermaritzburg sub JMC, is the Pietermaritzburg chair, was the then divisional commissioner would have been the chairperson.
CHAIRMAN: Do you know what his name was? --- Yes, Sir, it was a Brigadier Kotze.
And when you went to New Hanover and took control of the station the area as a whole fell under your control, and you were then still secretary of that Joint Management System. --- I was chair ... (incomplete)
When went to New Hanover you became chairman - I am sorry, thank you very much. So at the stage when this incident occurred you were chairman.
MR DE JAGER: You told us that during the morning the area was swept and certain people taken away so that it could be prepared for an attack in the evening. --- Yes, Sir, this is what happened.
Was there in fact an attack in the evening, during the evening? --- Yes, Sir, the Inkatha people attacked a lot of houses and set them alight, activist's houses and that.
So apart from the four constables there was an attack by Inkatha people, the Inkatha Youth, or even seniors, I don't know, and you dropped the four constables at a certain house. Were they kept there at the house? --- Yes, Sir, they stayed at Mr Gabela's house. He was the Inkatha leader of the area, and the man that accompanied us to Pietermaritzburg on that day - a couple of days before that.
So he knew all about the coming attack and he was
informed about it. --- Yes, Sir, he was part of the meeting that sat at Morawa House, the Inkatha head office, with David Ntombela.
Was he instructed to point out the house or what was his role in this attack? --- No, he just sat on - he just stood by the meeting that we had at his house when I arrived there that evening to fetch the four special constables.
Did you speak to him on fetching the four constables? --- (No audible reply)
And he was acquainted with the area and the specific house that should be attacked? --- Yes, sir, he was acquainted with the area at the top. He was - he'd lived in that area for many years, he knew the area.
How far from his house was this house that should be attacked, the target house? --- As the crow flies? No, why I ask you that, Sir, is because if you go with a vehicle it's much further.
(Inaudible) ... flies. --- I'd say almost a kilometre.
Could this house be seen from his house? --- No, Sir, it can't.
Did he take part in the attacks? --- In the attacks of the - the first lot of attacks, I am not certain of that. I don't recall asking him whether he was part of it, because I accepted him being part of the leadership, but being an oldish man I didn't envisage him being one who would be able to do it.
Now, the four constables, they were strangers in the whole area. How was it planned how should they know which house to attack? --- Yes, Sir, that was - it was
explained to them at the meeting that we had beforehand, before I dropped them off that they must look for this, that it would be a gathering - a place where the Comrades came together, that they would be together, and this was the thing that we discussed before going. But I say with hindsight, yes, it was very poorly planned and very stupidly done, and this is how it culminate into such a grave mistake.
MR ATTORNEY: I think Mr de Jager is asking you how would these people, being strangers, identify this particular house? --- Mr Gabela was the one that knew the area. He was present with us when we were discussing this.
WILSON J: Can I intervene again at this stage? My recollection, Mr Mitchell, is that this was a rural area, the houses weren't close together, they were down this road or that road. It wasn't a question of going up into an entirely built-up area to pick out a house. And there were trees growing there and things of that nature, weren't there?
MR ATTORNEY: Ja, but still I don't understand. A stranger, how would he - I mean if it is more than - even if it is more than three houses how would a stranger be able to identify the house in question? --- From the proximity of the shop, because there's only one shop there, and the house - and there was a house next to it. But there was a house behind it, and the houses that were, let's say subject of the discussion, was the house behind the shop.
Are you saying that it was described to them as to how the house was located in relation to the shop, etcetera, etcetera? --- Yes, but in the dark it looks
- they went too far. In other words - I think sometimes in my own experience if you walk in the dark you're inclined to go further than what you should, or you get a little bit disorientated. I think that's the only thing that I can - as I've sat and tried to think about it over these years.
MS ATTORNEY: Mr Mitchell, I am trying to follow your evidence. Are you saying that earlier on that day there was a pointing out made by Gabela in your presence and also in the presence of the constables? --- No, no, that is not correct. No, there was a different operation earlier on in the morning. It was a different operation.
So you also had not been aware of the location of the house? --- No, I didn't go and see where the house was. I personally didn't go and see where the house was.
Mr Mitchell, let me just take you to page 30 of your document just to correct one thing. That is with regard to the date when the meeting at Morawa House took place. That's paragraph 129. I think this point was raised earlier on, and your counsel stated that that meeting must have taken place about the 29th of November. But I think - I don't know whether you will agree with me that it in fact appears to be the 30th of November in accordance with the date reflected at paragraph 129. That's on page 20. Is that ... (incomplete)
CHAIRMAN: The last sentence of paragraph 129.
MS KHAMPEPE: At paragraph 128, Mr Mitchell, you state that there was a second visit by Captain Terblanche - the date is not reflected, but one can presume that it was immediately after the 24th of November - wherein he instructed that violence had to be stopped at all costs.
--- Yes, that's correct, you've got the right place there. On the 29th was his second visit, so his first visit was around about the 24th, if I recall it. The second visit was on the 29th, and it was the following day that we went to Morawa House, so that would have been the 30th.
I just wanted to correct my facts there. The gruesome killing at House TF83 could be viewed as having been intentionally carried out with a view of galvanising the Inkatha into action against the UDF or the ANC, and thereby significantly increasing the black on black violence. Would that be the correct view? --- Yes, that is what happened, yes.
If that is so then, Mr Mitchell, is it possible that there might have been an intention on your part to mislead the special constables, or not to pay due regard in making sure that they went to the right place, because it was intended that in any event the attack should be launched on the Inkatha members in order to galvanise such a response from the Inkatha people against the ANC? --- No, no, no, that - no, no, that was never - it was never the - my alliance or my allegiance and my loyalty to Inkatha and the special constables' loyalty to Inkatha would never have allowed us to do that. No, it was never in any way to reflect that it was something - it wasn't - our loyalties was to Inkatha. That's why I say they would never have gone and killed their own people, and I would have never deceived them, no.
The operation which was carried out on the 2nd of November, the crime prevention operation, you say there were about 40 policemen who took part in that operation.
--- Yes, really I am taking a big guess now because I -we're going back many years now and I can't remember. I am just trying to picture how many people were there. It could have been roughly 36 people if I divide them into groups of six. It may be a little bit less.
Were that number aware of why that operation was being carried out? --- Were they aware of what they were doing?
Why they had to clean up the area. Were they aware that it was in preparation of a plan to direct an attack against the UDF? --- Well, they - no, they weren't privileged to that meeting, and they weren't privileged to that information, because it was done on a higher command structure. But they know - obviously they'd been told the morning that it was a UDF area, so there was quite a lot of allegiance within the ranks of the SAP on the side of Inkatha generally speaking, from your divisional commissioner structures where I was right down through the ranks.
You have stated in your document and in your evidence that Mr Ntombela in fact ordered the attack against the UDF on the 30th of November. --- No. No, the reason that Mr Gabela was taken to Morawa House was that he be schooled into - because he was seen as a very weak leader, and it was the idea of putting more - telling him and getting him to take a more stronger hand in the area, and then launching the attack because the special constables would have been put at his disposal.
At that stage had a decision to bring in these special constables - had that decision been taken? --- I was told at that meeting that special constables would
That decision was taken after the meeting at Morawa House, is it not correct? --- Ja, basically the meeting was taken - well, it was at the same time, because from there we went to the Riot Unit, because I was in the company of Major Terblanche.
Mr Mitchell, according to paragraph 133, which is on page 30 of your document, you state that on your way back to New Hanover Gabela confirmed that he had been told to launch an attack against the UDF after the police operation on the 2nd of December 1988, and you go on to say he was told by David Ntombela, and he was further told that offensive assistance - and I presume that also military assistance - would be provided in the form of armed special ... (incomplete) --- Yes, that is correct. That is correct.
So in fact it was Mr Gabela who ordered the attack on the UDF according to what you are stating. --- Ja, I think that is narrowing it a little bit too much, because I think the presence of Captain Terblanche and myself and David Ntombela - I think it wasn't something that we could have told him, and said to him, "You must go and attack." It had to come from within his own party.
That's page 30 to 31. You were also requested by, I think Captain van den Heever, to make sure that you picked up any shotgun doppies left behind by the special constables. Did you in fact do that after the operation had been carried out by the special constables? --- Before I got to be able to pick up any doppies there were doppies picked up by another two policemen that were with us, that were then placed by me in the van, in the patrol
van. But they weren't handed in at that time.
And this, I presume, only happened some time later that morning, the picking up of the doppies by the police who came in. --- Yes, it only happened when we returned back later that morning.
Why, Mr Mitchell, did you not after the operation act in accordance with the instructions from your captain immediately after the operation had been launched by the special constables? --- Ja. No, the idea was that - it wasn't that we do it - they had people within themselves, or they had their own people that launched the attack that picked up doppies, but it was doppies that were missed during the attack that afterwards must be picked up.
Now, after the attack did you instruct these special constables to check how many terrorists had been killed at House TF83? --- No, I did not.
Why not? --- No, because it was a matter of launching the attack and then pulling out immediately. It wasn't - it was - I don't know what you can call it. Ja, launching it and then pulling out immediately.
Is it not also true that you couldn't have been able to pick up the doppies that night because you also were not sure of the house? If you were not present at the time of the attack then you didn't know which house had been attacked. --- No. No, the idea was that we return the next - when I returned the next morning in the daylight hours then I would pick up the doppies.
WILSON J: From the evidence that was led there would have been no difficulty in finding the house that night, would there? There were people screaming, there was great
alarm. --- No, that is correct, M'Lord.
MS KHAMPEPE: Are you aware, Mr Mitchell, of any other operations which were conducted by other station commanders within the district of Pietermaritzburg of a similar nature? --- No, I am not personally aware of it. I was - as I say I only operated in New Hanover area at that time when I was a station commander.
CHAIRMAN: Mr du Toit, any re-examination?
MR DU TOIT: No, no re-examination.
NO FURTHER QUESTIONS BY MR DU TOIT
WILSON J: I just want to make this - to be quite ... (incomplete - end of Side B, Tape 4) ... been at the meeting at Morawa House. Now you say you were there. --- No, M'Lord, no, I didn't sit on in the meeting. In other words the meeting that David Ntombela and Mr Gabela and the other members had was private. Myself and Captain Terblanche stood outside. We never attended the meeting personally.
But you've been giving evidence here about what was said at that meeting. --- No, Sir. It was things that were said to me by Major Terblanche, and it was things that was said to me by Mr Gabela when we left there on our way back to New Hanover.
Because, you see, at various times in your evidence you said things like - and I quote from page 438 of the record,
"M'Lord, I can only maybe only say that it was the affects of the liquor and what I heard from the meeting at Morawa House that prompted me to come to this
--- Yes, that is correct, but I never physically sat in on the whole meeting. Let's say - because I explained to you that Captain Terblanche spoke to David Ntombela, and then after that - after they had spoken there Mr Gabela and them went in.
Page 440, line 21,
"M'Lord, I went to the meeting at Morawa House, and what I heard at this meeting put certain - perceived me to see certain things as I explained to the Court."
--- Yes, that is correct, Sir.
MR DU TOIT: I have no re-examination.
MR DU TOIT: No re-examination, thank you.
CHAIRMAN: Yes. I understand you're not calling any other witnesses.
MR DU TOIT: This will be the only witness in support of the application.
CASE FOR THE APPLICANT
CHAIRMAN: Mr Brink, just to place on record ... (incomplete)
MR BRINK: I am calling no witnesses.
CHAIRMAN: Calling no witnesses.
CASE FOR THE RESPONDENT
CHAIRMAN: (Inaudible) ... prepared to address the Commission?
/MR DU TOIT:
MR DU TOIT: Thank you, Mr Chairperson, Vice-Chairperson, Commissioners and members of the audience. The application is brought under the Promotion of National Unity and Reconciliation Act of 1995. I think it is necessary - I think that it is necessary to state first of all that one finds in the introduction to this Act certain aims set out; to build a bridge between a divided society, to establish the truth in order to prevent a repetition of such acts. That would be acts of gross violation of human rights. And it says that the well-being of all South African citizens and peace would require reconciliation and the reconstruction of a society, and it is in order to advance this reconciliation and reconstruction, according to the Act itself, that amnesty shall be granted in respect of acts and offences associated with political objectives committed in the course of the conflicts of the past.
It is important to note that the Constitution provides that amnesty shall be provided or granted in respect of offences or acts associated with a political objective and committed in the course of the conflicts of the past. It is of course necessary that there should be a political objective, and the motive of the person who committed the offences is also the first consideration to be considered in section 20 (3) of the relevant Act.
I would submit that in this particular matter there is no doubt that there is a political objective. The motive was not personal. And I would submit that that is quite clear from the facts, not only before the Committee, but also the facts placed before the Trial Court. Secondly, the context in which the act or the
offences were committed, and whether it was committed in the course of political uprising, a disturbance, or an event, or in reaction thereto. We would submit that it is clear on the facts that what happened was part of the events in that particular time and in the area of Natal, and that there is in fact also a satisfaction of the second requirement, which is the context.
Thirdly there is the consideration of the legal and factual nature of the act or the offence, including the gravity - the gravity of such act. It is of course obvious that the offences here are very serious indeed. Were that the only consideration the application probably would not have been placed before you, but it is one of the considerations and it must be weighed as against the other considerations.
Fourthly, the question as to whether the object or objective of the Act was primarily directed at a political opponent or against private property or individuals. It is significant that the section does not refer to the victim itself, but the aim, the primary aim of the act. In this instance the primary aim of the act, of the offences, certainly was directed at political opponents as seen from the point of view of my client, and we would submit that the requirement that there should be primary direction at a political opponent has in fact been satisfied on the facts before you.
It was done in the execution of an order. He was instructed by Major Terblanche to receive the special constables and place them at the house of the Gabela. He was instructed to see to it that the violence is stopped, and I would submit that it is quite clear on the facts
before you that there was the execution of an order.
Lastly, the relationship between the acts and the political objective pursued, the directness, the proximity of the relationship, the proportionality of the acts or offences to the objective pursued. We would certainly submit that on the facts there is the political objective, and that there is also a direct proximity in what was done. The specials were taken there in order to achieve the political objective which was sought by my client.
We would therefore submit that on the facts before you the criteria have been met.
What also has to be considered is whether the requirements mentioned in subsection (2) are met. Firstly, my client was an employee of the Security Force, he was a member of a Security Force, and I would submit that on the facts he clearly acted within the scope of his express or implied authority as a result of an order, and that it was directed against a known political organisation. It was also committed with the object of countering or otherwise resisting the struggle.
At worst for my client I would submit, Mr Chairperson and Members, he satisfies the requirements mentioned in subparagraph (f) of subsection (2) of section 20, that he on reasonable grounds believed that he was acting in the course and scope of his duties, and within the scope of his express or implied authority.
The background information placed before you was placed before you in order to show what went on in his mind, what his state of mind was like at that point in time; to show what facts he knew and what facts he took into account when he acted. At worst for him the factual
basis is such that there are reasonable grounds for the applicant to believe that he was acting within the course and scope of his duties. There is no evidence that there was a personal motive. It is clear that the motive was a political motive.
It is not necessary for my client to show that the official policy was the use of the special constables in the way in which he used the special constables, but what is clear is that there was the frame of mind that not a single inch of land will be lost to what was perceived to be enemy or the opponent. The strategy was that the special constables should be a physical wedge against the Comrades. His perception, at worst for him, was that the special constables were there to prevent further land from being dominated or won over by the UDF/ANC Comrades.
Again it is not offered as justification for what was done, because it cannot be justified. It is not offered in order to show that there is innocence, because the Court has already found that there is guilt. It is offered to show that from the age of 18 there was this culture, one can describe it as a subculture, as Professor Grazer in fact has done. There developed a culture which is foreign to a democratic and open society. There developed a subculture within the police force which was unhealthy, which was abnormal, and which brought about a situation where people were indoctrinated, where people saw other citizens as enemies. And we see that from the open way in which the evidence was placed before you, and we see that even in the strategy document that there is a reference to enemy. And the friction in the past, the difference of views, brought about an approach within the
police force in the circles in which my client moved that certain citizens were to be regarded as enemies, not only of the police but of the State. And I think that what was demonstrated by the evidence today is that a peaceful co-existence became impossible; that the police, in Natal at least, chose sides; that in Natal the police force was strengthened by the addition of certain special constables, at least some of whom had definite links with Inkatha. Of course they should have remained neutral. Of course they should have been involved in normal policing, but my client did not have the privilege of working in a normal society. My client was used to quell disruptive action. My client was used by the police force to quell and limit rioting. He was certainly not privileged to serve as a community policeman.
MR NGOEPE: Sorry. Sorry, Mr du Toit.
MR DU TOIT: It is necessary that the perspective ... (intervention)
MR NGOEPE: Yes, I want to ask you - but why then? What was so special about special constables to make your client think that they could be used that way? Why didn't he use members of the South African Police Force, for example?
MR DU TOIT: I think that the strategy document there makes it clear that the idea is to use black people within the black community, tragic as this may be, as a physical wedge. The strategy was exactly to remove the white police face from the community, as I understand the strategy, and as my - I think my client understood it at that point in time, so that he saw the special constables as this wedge, this physical force which will be used in
order to prevent further land from becoming UDF or ANC dominated. And it is on that basis that he approached it. I think that there was the added advantage, as my learned junior points out, that such violence as will come to the fore will be black on black and not white policemen on black. I think that is also clear from the approach which is found in this strategy document.
What needs to be pointed out is that within this subculture, within this subculture of, one can say, a civil war in this area during those years, the foundations of the police force were shattered, as my client testified. The moral foundations of the police force were shattered, and what my client has been testifying about, for example, the sweeping of an area in order to render it vulnerable, is not something which was heard here only. A day or two ago in the Supreme Court in Pietermaritzburg another special constable testified to exactly the same effect, namely that areas - according to a newspaper report that I read - would be used - their unit would be used to sweep the area and to ready the area for certain overt action. Also from the one document it is clear that clandestine operations took place, that strange or foreign policemen - that is to that particular area - would be brought in to operate secretly within that area.
It is within that framework that one does observe certain overt moments, certain overt elements in the covert plan. On this factual basis one cannot approach what was done from the armchair and from the viewpoint of a normal police force operating within a normal society, because both those two elements were missing at that point in time.
/MR DE JAGER:
MR DE JAGER: Mr du Toit, there was a cover-up. I think that's common cause.
MR DU TOIT: Yes.
MR DE JAGER: Isn't that an indication that if it wasn't ordered it was at least approved by superiors?
MR DU TOIT: Well, not only that. My client was promoted to a captain thereafter, and I must say that that he acted vicariously was also accepted, for example, through the settlement of most of the claims on the basis that what he did was done in the scope of his duty. But certainly there was no reaction. The senior officer who came from Pretoria discussed the matter with the investigating officer and the matter was left there. It was only some years after that - I must also point out that - and I think WILSON J will remember this, the special constables were allowed to leave with a group of 80 from the South African Police Force and went en masse after this incident to the KwaZulu Police, where the four specials were hidden. They went to a kraal where they were looking after somebody. And it is striking that 80 special constables actually were allowed to leave the South African Police Force and they were allowed to join the KwaZulu Police Force shortly after this incident.
WILSON J: Well, what I do remember is that at the time it was alleged they were looking for the special constables the special constables were still being paid their salaries, and that when they joined the KwaZulu Police the KwaZulu Police wrote to the South African Police asking for references, and were supplied with references by the South African Police.
MR DU TOIT: And not only references, but rather
outstanding references. At least the stamp of approval, at the worst for my client, was put on this after the incident.
MR NGOEPE: But, Mr du Toit, whether or not this was authorised it would have embarrassed the police anyway.
MR DU TOIT: Yes.
MR NGOEPE: Isn't that so?
MR DU TOIT: Absolutely. I must ... (intervention)
MR NGOEPE: And the fact that there was a cover-up does not necessarily mean that there was prior authority. It was just going - whether authorised or not it was going to embarrass the police.
MR DU TOIT: I think that what eventually happened embarrassed them more, and I think what obviously would have happened if there was this atrocity committed by a policeman outside of what was considered to be acceptable there would have been action, he would have been arrested and he would have been brought before Court, as eventually happened when an independent policeman brought his discretion and decision to bear on the facts. But I think the subsequent events also demonstrate that there was the stamp of approval.
But let me say immediately that if one looks at the criteria there is no stamp of approval necessary. Major Terblanche sent the constables there and instructed him to place them at Gabela's because they were going to be used. My client received an instruction, and what happened afterwards in my view, at worst for my client, tends to confirm that this situation was not totally unacceptable to the authorities at that point in time. Knowing this,
because the senior officer from the head office, the
brigadier, knew about it. Knowing that my client was promoted to captain in 1991. It is therefore clear that what happened was not even held against him on the basis that there should not be promotion.
I must also point out that the promotion did not follow the event, so that I don't think one can argue that, objectively seen, there was a seeking of a more senior position, and that he was, let us say, rewarded for what happened. That certainly is not the position, no.
MR NGOEPE: May I just ask you something? The revelation on the part of your client that he had received instructions from Major Terblanche, did it come out while Terblanche was still alive?
MR DU TOIT: What happened in my view was that before the trial - when you mean did it come out you mean into the open, the public, or do you mean was it mentioned to somebody else? If you mean by coming out in the open, at the trial already when this was canvassed for the first time Major Terblanche was deceased. So he was deceased because, as I said, he was killed by another special constable who was himself killed by other policemen. So that in fact when there was the first opportunity for this to be made public he was already deceased.
But the discussion at the particular time, that is when the brigadier came to Pietermaritzburg, as I understand the position - to New Hanover, when they discussed the matter with my client, Terblanche was also present. I think it was quite clear that his presence must have influenced the brigadier from head office, who just did nothing and allowed van Zyl, after a private
discussion, to go back to my client and say, "Don't worry,
nothing will happen."
But I must point out that it is not necessary for a successful application to show that there was a stamp of approval from the authorities. That there was an instruction is enough, but I would suggest that on the probabilities, if one looks both at what happened at the time, what happened prior to the incident, and also what happened after the incident, even when the Trial Judge said, "But there should be an investigation into this. What is this Joint Management System?" WILSON J said, "How could policemen be involved in this? This is not normal police function." He said, "Could it be that this unit was used elsewhere?" He posed various questions and he said, "Let there be an inquiry." If there was any concern on the side of the authorities at that point in time to establish, to answer those very apposite questions, there would have been an inquiry. I would suggest that the fact that there was no inquiry also tends to support that there was the stamp of approval, although, as I have indicated, that is not what the Act requires. Even if the applicant, given what he knew, was reasonably - on reasonable grounds believed that he was acting within the course and scope, or express or implied authority, it would be adequate.
The background material was made available for two reasons. Firstly to give a graphic description of what the typical reading material in this abnormal society was for a policeman. In what normal society would a policeman be reading a strategy document and counter measures like that? The answer is very obvious. In no normal society. /And that
And that is why I say that one - and I think my client has
also lodged his plea with you to put you back not only to those years, but also if possible into his shoes from 18 years onwards on the one side, and that is what happened. It is tragic that there were sides, and that the normal function of a police force to remain neutral was not adhered to. What one found was the police force in general solidly on the one side, because the other side was perceived not only to be anti-Government, anti-State, but in fact the enemy. And it is in an almost war-like situation that the police were pulled in and then used, in my view, to do certain things. Because what is clear is that the Joint Management System should not have been something in which the police force and my client should ever have been involved in, but they were used in order to limit UDF domination, the internal ground swell which was unstoppable probably already at that point in time.
MR NGOEPE: Mr du Toit, sorry, I don't want to interrupt you, but I just want to tell you that I have got two profound difficulties on which I would like you to help me. You have touched them, but not clearly enough, and to me they are very basic, they are very fundamental. The first one is you referred to section 21 (b) - and you must tell me if you want to come back to it or you want to deal with it now, but that is now ... (intervention)
MR DU TOIT: 20 (b).
MR NGOEPE: 21 (b).
MR DU TOIT: No, it's 20 (b).
MR NGOEPE: All right, let it be so, let it be so.
MR DU TOIT: Oh, 20 (2) (b).
MR NGOEPE: 20 (1) (b), right at the top there, the
act or offence which the application is associated with the political objective.
MR DU TOIT: Yes.
MR NGOEPE: Now, we know what the political objective was, I guess. What I am not so sure is - in fact let's get to the question of authority, because you see to argue on two legs. You argue that there was actual authority, and even so, even if there was no actual authority, alternatively then you rely on ... (inaudible) ... am I right? Now, the problem with this case is that - assume that the United Nations issues a resolution authorising Washington to launch a missile attack on Baghdad, and the United States unleashes such a missile, but it releases it in such a way that the missile lands on London. Is that still within the authority of the United Nations? That is the problem I have in this case.
MR DU TOIT: No, let me say I think ... (intervention)
MR NGOEPE: In other words there has been some - the difficulty here is that there has been some aberration with tragic consequences.
MR DU TOIT: Mr Commissioner, yes. Murder will always be an aberration, and that in itself also demonstrates the abnormality of ... (incomplete - end of Side A, Tape 5) ... of early release. What we are saying is that he was ordered to place the specials, who he was told will come there, at Gabela's house, and he knew that the special constables would be used in the attack that evening. That is not only authority, it is an instruction. It is the fact that he obeyed the instruction that brought the special constables there, that brought him to take the special constables to Gabela, and also to use the
constables. In other words he was instructed and he was not only give the authority, but he was given a direct order by a superior officer to do what he did.
MR NGOEPE: By killing members of the IFP was he still within the premises of the stated political objective? Did he not go outside the parameters of the political objective?
MR DU TOIT: No, because he instructed the special constables to attack in accordance with an order he was given, and I don't see what happened after that as not falling within. It is the direct result of an order. It is the direct consequence of the order. It is - the order is what brought the action in movement, and that is why the Act does not require that the victims should be of a political party, but that the act should be primarily directed at a political opponent. Otherwise the Act would have required that the victim should have been a political opponent, which the Act does not do, because the Legislature perceived the situation where, under the abnormal circumstances, an order can be directed at target A, the conduct of the officer in instructing on the ground can be directed at A. Something may go wrong and innocent people in the process may be hurt or even killed, as tragically happened here. But that is why the Legislature specifically requires that it is the aim which should be primarily directed at the political opponent, and not that the victim should objectively physically be the political opponent. So, at worst for my client, if the target was not that specified in the order it will make no difference, because in accordance with the criteria as set out in the Act he will remain entitled to the amnesty.
It does not say that the victim or the object should be a political opponent, but that it should be primarily directed at a political opponent or State property or person, or against, whether it was primarily directed at the political opponent or private property or individual.
I therefore believe, with respect, Mr Commissioner, that the question as to whether the target is in conformity with the actual order will not arise. My client sought the achievement of a political objective, and that is what both the Constitution and this Act have in mind, namely to, even under unthinkable circumstances like this, women and children killed, to accept that in the abnormal situation horrendous offences were committed, and that provided that the aim or the objective was political that there should be an approach which is alien to the criminal justice system, namely to release or to prevent the criminal justice system from coming into operation by bringing about early release.
MR NGOEPE: But if the plan to execute an act which is directed at a particular objective, as you say - if the operation is executed with such a reckless disregard, with such recklessness, surely it can have as its consequence the fact that it can hardly be said that you are directing yourself to the stated objective. It can hardly be said so.
MR DU TOIT: No, I believe that the physical performance of the act is not to be judged. That has to be judged is whether the act was primarily directed at achieving a political objective, and there can be no quarrel on the facts before you that that was indeed so. Because in war, in civil war, and in situations like this many things go
wrong. That is why there is no specific requirement that the victim himself or herself should be a political opponent. What is examined is the subjective intent, the motive behind - not even the intent, but the motive behind the conduct.
MR NGOEPE: So if I am sitting somewhere behind the mountains, and I intend to kill members of the ANC in Pietermaritzburg, I can just throw a bomb over and even if I kill other people it doesn't matter as long as I am primarily - my primary objective is to hit members of the ANC.
MR DU TOIT: Is objective as long as your - the objective motive or the motive, the objective which is the aim of a motive, is political. That is the consequence. In my view the only ... (intervention)
MR DE JAGER: Mr du Toit, shouldn't the offence be associated with the political objective? You need not have the political objective yourself, but the act should be associated with the political objective.
MR DU TOIT: No, that - I think that follows from what I say, namely that what is the main object of examination here is the motive which sits behind the act. The consequences, unthinkably tragic as they may be, will not affect that motive. And it is for that reason why the Legislature has been very careful not to limit the granting of amnesty to those - to be blunt, to those murderers, the murderers of exactly the people at which the Act was also aimed at motive-wise by the perpetrator. That is why the - the requirement is one of association. The requirement is one of making the object, the primary object even - there may be secondary objectives, but the
primary objective to achieve a political aim.
You are also called upon to keep in mind the criteria applied in the two Acts repealed by section 48 of this Act. Of course the first Act would not be applicable because he was not entitled to consideration under the first Act, but the '92 Act the criteria there will be applicable. And there the wider criterion is clearly associated with a political motive.
I must point out that it is here where the release of the other four perpetrators of the offence found guilty by WILSON J will become relevant, because the four special constables, who were not only convicted of a similar offence, but the exact same offence or offences, were released under that Act. And I would submit that that is also a consideration which should weigh heavily with you since, in my view, the Constitution could never have envisaged inequality, in that the four special constables are released and that the officer who gave that instruction is not released. I would submit that one is driven to an inference of inequality if people who committed the identical offence are, for purposes of amnesty, not treated equally. And therefore I think in this particular matter the criteria applied in the Act of 1992 will be of specific weight.
There are other considerations not directly applicable to the facts. One of these considerations must be the effect or the outcome of this application. If you were to grant amnesty or early release here it will send out a strong signal to other members in the police force, in the defence force, past and present, to come forward and to tell everything. I think that an early decision
here, a speedy decision to release, will bring about a situation where other force members, as my client has in fact urged them to do, will come forward and will lodge their applications. I think that it is necessary that those who have more information than my client should come forward. I would mention members of the force who may have been involved with the Management System and various other strategies for much longer than my client would have been would also possess valuable information. If you were to grant the application of my client there will be a solid signal which is sent out.
That also would be in accordance with the declared aim of this Act, because, as, Mr Chairperson and Commissioners, you will no doubt know, the aim to establish the truth to prevent a repetition of such acts in future is almost at the heart of this Act. And I believe that you would serve ... (intervention)
MR DE JAGER: Okay, Mr du Toit, but that would amount to it that if we don't give amnesty other people won't come forward, so we need to give amnesty, and that can't be an argument.
MR DU TOIT: I think that the argument of course is not that there should be any coercive moment in the consideration, but if the broader interests of the Act can be served, and it is striking in fact, Mr Commissioner, that the Act in fact says that it is necessary for the wellbeing of South African citizens - that is the broader community - and peace that there should be reconciliation and reconstruction. That can only take place if what happened in the past is known so that we can move into the future, as Pastor Ray McCauley said so graphically. We
can't move into the future if we don't know what happened in the past. What would you be doing is not to say, "Well, there's a sword hanging over the head of the Committee. If I don't give it then people may not come forward," because rightly or wrongly that may be the effect, and of course it is not the only consideration. But if you want really to serve the aims of this Act I would submit that that is indeed an important consideration.
I would submit that you have before you a factual basis. It tells a story. It tells the story of an abnormal situation. It tells the story of policing in a society which was everything but normal at that point in time. I would submit that if you apply the criteria to the factual basis before you the decision which is justified on the facts would be that the criteria are satisfied. In my view there is no suggestion, and there cannot be any suggestion, that the criteria as set out in section 20 (3) are not satisfied. The facts are there.
I would ask my colleague to conclude our argument for the application.
MR NAIDOO: Mr Chairman, Members of the Committee, the case that is made out on behalf of the applicant is that the Brian Mitchell of the Trust Feed massacre was a Brian Mitchell steeped in the indoctrination of the apartheid system. He was at that time shrouded in a cocoon of ignorance, largely encouraged, fostered and nurtured by the system of apartheid, which curtained him off from any meaningful communication with his fellow human beings, with the black people whom he saw as nothing more than the swart kaffir.
The case is also made out that during his incarceration Brian Mitchell has had the time to reflect. He has had the time to actively educate himself, and he has had contact with various people, with various pastors, who have brought him out of that ignorant level at which he was operating. And this will be seen from the input of Pastor Ray McCauley and Reverend Jaba.
What we say is that the Brian Mitchell before you has undergone a transformation. From the facts it will emerge that he has come to a greater understanding of himself and of his deeds. Brian Mitchell comes before you today and says that he wants to go out there and he wants to be actively involved in freeing others from the shackles of their indoctrination, those who are still shackled to the old South Africa by the chains of ignorance and indoctrination. And this he wants to do by being involved in preaching, and through his future conduct and involvement in the community.
Now, going to the objectives of the Act, Brian Mitchell has told you that he wants to make amends. Further objectives of the Act is that he has come here and made a full disclosure with a view to reconciliation. Now, his disclosure before in this application has at a micro level resulted in a certain measure of relief being given to the immediate victims, in that there has been a settlement of their civil claims arising out of his co-operation and the facts which he has made available to the attorneys of the victims.
At a wider level, on a macro level as it were, the disclosures here will no doubt lead to the emergence of disclosures of new facts, and a new perspective or better
understanding of the identity of the real perpetrators of various crimes and atrocities perpetrated throughout the country, as well as the methods used in achieving their aims. The strategy employed at the Trust Feed was employed throughout the country. The information which he places before this Committee, if properly used, will no doubt result in other persons in positions similar to that of Brian Mitchell coming forward.
During the repressive era, or at least a portion of it in the 80s and the early 90s, I was personally involved in conducting various defences on behalf of activists. I had done dozens of trials for certain Comrades and for persons who were in fact the victims and targets of the strategy advanced by the likes of the applicant. This added to my awareness of the destructive and dehumanizing dispensation of the past, the destructive and dehumanizing policy of apartheid. It destroyed many lives, it destroyed many families, and destroyed much good and many good human beings.
The Interim Constitution and the Act with which we are concerned here today, the Promotion of National Unity and Reconciliation Act, both have certain objectives, and these objectives look to the past, they look to the present, and they look to the future. In looking to the past they require and they urge, they exhort disclosure of what happened, and this is best done by confessions and disclosures by the perpetrators of the violence in the past. At the same time it looks to the present in that there is the coming together of the victims and the perpetrators. The additional information and disclosures provided by the perpetrators makes it possible for
reparation for the victims, and this would then lead to some measure of reconciliation.
The Act also, in its preamble, looks to the recommendations being made from the information gleaned out of the past so that necessary measures may be instituted to ensure that this never happens again. In this context then it is necessary for persons like the applicant to come forward and to reveal, to explain how and why they acted as they did. The knowledge gleaned from these disclosures will help achieve the objectives of the Constitution and of the Act. The history which is then put together may be used as a factual plinth on which a reconciled new South Africa may be placed.
The releasing of an individual like Brian Mitchell would normally be anathema to me. It would be repugnable in the extreme to any - in any normal society because it strikes at the very heart of the criminal justice system. But we have an Act here, and we have an abnormal situation which calls on us of necessity to suspend even what is at the heart of the criminal justice system, and we are to achieve the greater goals of the Constitution and the Act for the reconciliation of the nation.
In conclusion, the granting of amnesty in this particular case will be single(?) in various respect, and also unique. It would be a grant of amnesty to the first senior officer from the police who has come forward. He has made full disclosure, and I would submit that he has satisfied the various criteria. What is also important in granting amnesty is this individual comes before you as a person who has been transformed.
MR NGOEPE: You sound more like you are praying for
his release than arguing for it.
MR NAIDOO: I think what I am - I am glad that in certain respects my submissions here sound like a prayer. One reason it sounds like a prayer is because I have stated that it is anathema for me to stand here. I find it repugnable to stand here and actually argue that Brian Mitchell be released, but in doing that the purposes, the objectives of the Constitution and the Act under which this application is brought has to be considered, and I then exhort the Committee to give Brian Mitchell that chance to make amends, because he comes here having served five years in prison. He comes here also as an individual who has also lost everything. Yes, I would agree and concede that he has not lost as much as the victims have lost, but the whole purpose of granting of amnesty is so that one may have reconciliation.
One of the aspects that has to also be considered by the honourable Members of the Committee and you, Mr Chairman, is that the victims - or the representative of the victims has indicated that there is no opposition being advanced by the victims. They leave it in the discretion of the Committee. There is then an - what can be derived from this is that were there to be a release then that release would be acceptable to the victims in the spirit of reconciliation. And this particular implication or inference may be made from the submission made to you by their legal representative in saying that at this point in time they are unable to forgive, but were the applicant to go and involve himself in the community then the door to forgiveness is still open. And this grant of amnesty would then also assist in
bringing about that reconciliation.
I have no further submissions to make in this regard.
CHAIRMAN: Mr Brink, are there any views which you wish to express?
MR BRINK: Very, very briefly, Mr Chairman, Members of the Committee. What does give me cause for concern is the fact that the Trust Feed area was - and cannot be better described than in the words of WILSON J during the course of the trial - as a haven of peace at the time when the applicant arrived there. He arrives as station commander in January 1988 at a time when the Crisis Committee was representative of both the landowners and the tenants. He then gets involved with Inkatha, helps to form the Landowners Committee, and within -I think it was six months of that committee being organised, violence erupts. In October, and again November, subsequently the massacre itself. And one wonders why, if his instructions were to take out the members of the UDF, or those perceived to be members of the UDF, why the extensive police powers which the police had at that time could not have been employed, namely detentions. That detention concentrates the mind quite considerably.
However, the victims and the next of kin in this matter, through their attorney, have indicated that although they find it difficult at this stage to forgive, and while they do not support the application, they do not oppose it, and that, with submission, is a healthy attitude. Because I believe, in all fairness to the applicant, and to the victims and the next of kind, there seems to be an embryonic growth towards reconciliation,
and if that can be achieved that would be the most marvellous, marvellous thing.
And in those circumstances I do not oppose the grant of this application. I do not. I think in fairness as well what my learned friend for the applicant has said in regard to the four special constables - admittedly they were a lesser breed, so to speak, and under the applicant's orders, but the applicant was under superior orders, and no doubt his superior was under superior orders, and that will be investigated and no doubt the truth will come out. But in the circumstances I think it only fair to say that I certainly do not oppose this application for amnesty.
That is all I have to say unless there are any other matters you wish me to deal with.
MR DU TOIT: Mr Chairperson.
CHAIRMAN: Yes, Mr de Jager.
MR DU TOIT: May I just say one or two things with your permission please?
MR DU TOIT: The first is that I was requested by my instructing attorney, Mr Nation, to apologise to you and the gentlemen. He fell ill late yesterday afternoon and we took him through to the airport. We understand that he is better now, but he asked me to offer you and the gentlemen his apology for not being here today.
Secondly I would like to place on record my gratitude to the Chairperson, yourself, and the Commissioners, for allowing us to sit through the luncheon today, and for your patience.
Lastly I would like to express my gratitude towards
my colleague, Advocate Michael Naidoo, who is acting on a pro amico basis, and also my attorney and Professor Grazer, who kindly agreed to make the report available to you so that you would be in a position to judge what sort of person you would release should you so decide. Also made available his services on that same basis. And I would also like to express my gratitude to those individuals. Thank you, Mr Chairperson.
CHAIRMAN: The commission will deliver its decision in due course after it has naturally - after it has had time to consider all the submissions that have been placed before us and the evidence that we have heard.
On behalf of my Committee I want to congratulate and thank the legal representatives for the applicant for the manner in which they have presented their documentary evidence, and the care that was taken in making all this available to us. It does make our task that much easier when documents are prepared and submitted in this fashion. I want to tell you each one of us are mindful of the fact that we are very, very ... (incomplete - end of Side B, Tape 5)