MR NEL: Thank you, Mr Chairperson. I call the next applicant, which is Captain Jerry Brooks.
JERRY J BROOKS: (sworn states)
MR NEL: Thank you, Mr Chairperson. Mr Brooks' application is found in the Cele bundle, starting on page 11 and the short summary of his evidence will then be marked, if it may be Exhibit H.
CHAIRPERSON: H. Thank you very much.
EXAMINATION BY MR NEL: Mr Brooks, you are applying for your participation in the abduction of Dion Cele from Swaziland, am I correct?
MR BROOKS: Yes, that is correct.
MR NEL: And during the time of this incident you were stationed in the Security Branch in Pietermaritzburg?
MR BROOKS: Yes, that is correct.
MR NEL: And Col Vorster was your direct Commander?
MR BROOKS: That is correct.
MR NEL: It is also then Col Vorster who tasked you to assist with this operation.
MR BROOKS: That is correct.
MR NEL: You have heard the evidence given by the previous applicants insofar as it affects you, do you confirm the correctness thereof? And you have also had the opportunity to study Annexure A, or Exhibit A. Do you request for this to be incorporated in your application?
MR BROOKS: Yes.
MR NEL: Before we continue with the facts of the matter, is it correct that upon a previous occasion when you did not have legal representation, you were questioned about this particular incident and at that stage you denied any knowledge of the incident?
MR BROOKS: That is correct.
MR NEL: Could you briefly explain to the Committee why this was so.
MR BROOKS: This was in the 16th of November 1996 ...(intervention)
CHAIRPERSON: In what application was that?
MR BROOKS: It was not an application, I was subpoenaed by the TRC to give evidence before them in camera.
MR NEL: Was it also so that you submitted your amnesty application through me?
MR BROOKS: Yes.
MR NEL: Could you explain to the Committee briefly why you did not tell the truth at that stage?
MR BROOKS: Firstly, I was uncertain whether the SAPS would participate in the amnesty process and secondly, at that stage I did not have any legal representation, and that is why I denied it.
MR NEL: But today you are here to tell the truth and you request amnesty for this?
MR BROOKS: That is correct.
MR NEL: Your participation in this particular incident was quite remote. Am I correct in saying that you and Col Taylor did not even enter Swaziland, but that you waited outside the Swaziland border on a farm near Amsterdam, for the group which is already known to us?
MR BROOKS: Yes, we waited at the border post near Nerston.
MR NEL: Were you in any way involved in the interrogation of Dion Cele?
MR BROOKS: No.
MR NEL: Were you involved, or were you on the farm after he had been brought back to Elandskop near Pietermaritzburg?
MR BROOKS: No, not at all.
MR NEL: And at that stage you did not know that Dion Cele had been eliminated, but later you found this out.
MR BROOKS: That is correct.
MR NEL: Was there any reward that you received from anybody for your participation in this operation?
MR BROOKS: None whatsoever.
MR NEL: Your political objectives are contained within your application on page 15 of the Cele bundle, paragraph 10 and further. Do you confirm the correctness thereof?
MR BROOKS: Yes, I confirm this.
MR NEL: Thank you, Mr Chairperson, that is the evidence by Mr Brooks.
NO FURTHER QUESTIONS BY MR NEL
CHAIRPERSON: What did you do at the border post?
MR BROOKS: Col Taylor and I went to the post, it was part of the operation to see whether everything was safe for the group's return from Swaziland.
CHAIRPERSON: What were you required specifically for?
MR BROOKS: I am not certain, but what I inferred was that I had to accompany Col Taylor so that he would not go on this aspect of the operation by himself.
CHAIRPERSON: Were you told what it was all going to be about?
MR BROOKS: Yes, I was briefed about the purpose behind the operation.
CHAIRPERSON: Did you know that somebody was to be abducted and brought into the country?
MR BROOKS: That is correct, I knew about it.
CHAIRPERSON: Did you know the individual concerned, Dion Cele? Did you know him?
MR BROOKS: I knew him by name, but I did not know him personally.
CHAIRPERSON: Up till the time that you left Nerston with Taylor, had the vehicle bringing Dion Cele into the country, had it arrived?
MR BROOKS: Upon our arrival at Nerston, the vehicle had not yet arrived. Approximately a half an hour later, I cannot recall precisely, the vehicle returned.
CHAIRPERSON: And did you see this man, Dion Cele?
MR BROOKS: Yes, I saw him.
CHAIRPERSON: Did you talk to him?
MR BROOKS: I greeted him but I did not speak to him.
CHAIRPERSON: In what language did you greet him?
MR BROOKS: I always greet them in their own language, so I greeted him in Zulu.
CHAIRPERSON: What else did you do after you greeted him?
MR BROOKS: Well I sat around on the farm for that period of time and returned the next day, I didn't really do anything specific.
CHAIRPERSON: Did you have any contact with him on the farm itself?
MR BROOKS: Not really, except when we went through sometimes I saw him but I didn't really have any contact with the man.
CHAIRPERSON: You were not involved in any questioning of the man?
MR BROOKS: No, not at all.
CHAIRPERSON: Thank you.
MS THABETHE: No questions, Mr Chair.
NO QUESTIONS BY MS THABETHE
MR LAX: Thank you, Chairperson.
You were waiting at the border post I understood from your evidence, is that correct?
MR BROOKS: That's correct.
MR LAX: And this vehicle then arrived at the border post about half an hour after you'd got there.
MR BROOKS: Well I wouldn't say it was half an hour, I would say it was approximately half an hour. It may have taken longer, but it wasn't less than half an hour.
MR LAX: The issue is that it arrived at the border post, the time is not really that material. Is that correct?
MR BROOKS: It didn't arrive at the border post itself, but more a short distance away. Where they had crossed the border illegally, that is where we waited on the dirt road. So we gave them enough time to drive to Manzini and to return, so I would say that our time calculations were rather precise because in terms of the time that it took them to return we didn't really wait that long, we couldn't have waited there longer than an hour.
MR LAX: You see my only worry is this, you waiting at the border post, they've crossed at some other place, on a dirt road where they flattened the fence and gone over, and then how did they arrive at the border post suddenly, where you were waiting? That's what I don't understand.
MR BROOKS: Let me just explain this. The place where they crossed was approximately 200 metres from the border, so we would refer to that as the border post because it was within the immediate vicinity of the border post.
MR LAX: I understood from the earlier testimony that they went and crossed somewhere where they wouldn't be seen, they did it unlawfully, how would they then go and cross about 200 metres right there near the border post, they could be seen. It doesn't make sense to me.
MR BROOKS: I'm saying 200m, but it may be somewhat further. It could definitely not have been a kilometre or further than that. Let me say that it was on the eastern side of the Nerston border post, which was very close as far as I can recall. And I'm referring to this place as the Nerston border post, but it wasn't exactly at the border post, it was approximately 200m away from the border post itself.
MR LAX: No, I hear you, it just leaves some question marks in the back of my head. I'll leave it at that.
ADV BOSMAN: What was your rank at the stage when you participated in the operation?
MR BROOKS: I was a Constable.
ADV BOSMAN: Did you drive the motor vehicle for Col Taylor?
MR BROOKS: No, he drove his own vehicle.
ADV BOSMAN: I still find it strange that you had such a remote share in the matter and that you left without really having done anything. Why did leave before Col Taylor, why did you return before him, and on your own as well?
MR BROOKS: I don't understand the question.
ADV BOSMAN: You see, before the others you returned to your office, did Col Taylor give you the order to return?
MR BROOKS: No, I returned the following day with the others to Pietermaritzburg. We left in one vehicle for Pietermaritzburg.
ADV BOSMAN: In other words, did you return before or after the elimination of Mr Cele?
MR BROOKS: After the abduction we went to the farm in Amsterdam and after that we returned to Pietermaritzburg the following morning, where in Pietermaritzburg we split up, Col Taylor and the others went to Elandskop and I remained in Pietermaritzburg.
ADV BOSMAN: Very well, that explains it then, thank you.
CHAIRPERSON: So in other words, that night you spent at Amsterdam with everybody else?
MR BROOKS: That is correct.
CHAIRPERSON: And during that time in Amsterdam itself, whilst the deceased was still there, you had no contact with him?
MR BROOKS: I don't say I didn't have any contact with, I saw him and so forth, but I never spoke to him continuously or anything like that. I saw him, I knew that he was in our presence. We were very close to one another at that stage.
CHAIRPERSON: Yes, I mean personally you didn't engage in any conversation with him?
MR BROOKS: No, not at all.
CHAIRPERSON: That's what I mean. Thank you. Arising out of all that, Mr Visser, are there any questions that you wish to put?
MR VISSER: No thank you, Mr Chairman.
NO QUESTIONS BY MR VISSER
CHAIRPERSON: Any re-examination of the man?
MR NEL: No thank you, Mr Chairperson.
CHAIRPERSON: Thank you. Sorry Thabile, is there anything that you wish to ask arising out of the questions that have been put to him?
MS THABETHE: No, Mr Chair.
CHAIRPERSON: Thank you. Very well, thank you very much, you are excused.
WITNESS EXCUSED
MR NEL: Thank you, Mr Chairperson, that concludes my applicants.
CHAIRPERSON: Thank you. Gentlemen, before we start concluding these proceedings, you will recall that Mr Britz' client has not been heard and the letter I received from him yesterday. I want to try and avoid postponing this hearing until he is heard and I'm going to conclude these hearings and if possible make a convenient day towards the end of this week or early next week just to enable Mr Britz and his client to be here, so that we can conclude his part of the evidence. Mr Visser, if you wish to address us you may please do so.
MR VISSER: Yes. Mr Chairman, there's just one aspect outstanding and that is whether the family - I don't understand them to oppose the applications, but nevertheless they might wish to say something to you.
CHAIRPERSON: No, I've taken that into account. You mean as far as the present application is concerned?
MR VISSER: Yes, Chairperson.
CHAIRPERSON: Well are you likely to lead evidence?
MS THABETHE: Can I ask you to give me a second please, Mr Chair?
CHAIRPERSON: Take your time.
MS THABETHE: Thank you.
CHAIRPERSON: If you require a little more time I am prepared to stand down to enable you to consult the people.
MS THABETHE: I'm indebted to you, Mr Chair, I would appreciate that.
CHAIRPERSON: Yes.
MS THABETHE: Thank you.
CHAIRPERSON: You will call us as soon as you are ready.
MS THABETHE: I will do so, Mr Chair.
CHAIRPERSON: Thank you. We will adjourn for a short while.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes?
MS THABETHE: Mr Chair, I've met with the family. I don't have any further witnesses. I will address whatever needs to be addressed during argument.
CHAIRPERSON: Thank you. Mr Visser?
MR VISSER IN ARGUMENT: Thank you, Mr Chairman. Mr Chairman, if we may then go onto the argument in this matter.
We act as we have stated before, for three applicants in this matter, Botha, Vorster and Wasserman, who apply for amnesty in regard to the incident of the abduction, murder and other issues accompanying that incident.
Mr Chairman, you will recall when then amnesty process started we approached argument with great caution and very voluminously. We have been able, Mr Chairman, because of events which have taken place since those early times, to shorten our argument dealing with the conflicts of the past, the political background and position of applicants who were members of the Security Forces. I remember well, Mr Chairman, how you sat not too long ago, I believe it was in the Nietverdiendt 10 matter, listening to us again, where we fully argued - and I believe Mr Lax was a Commissioner in that same hearing, where you listened to us on the background yet again.
Chairperson, in the meantime there have been decisions, some of the original Amnesty Committee and some of other Amnesty Committees which followed subsequently, which have addressed some of the issues which we have mentioned during those past arguments which we presented to you. We have one hitch, if I may call it that, in the present case and that is the introduction of a new Commissioner who has not had the discomfort of having to listen to me addressing her about that background. And we were wondering how to perhaps get around that problem without have to ...(intervention)
CHAIRPERSON: She has in the meanwhile acquainted herself over the past with documents which deal with this kind of matter.
MR VISSER: Yes, Chairperson, but I'm just worried that she might not have had the benefit of hearing what I have to say about it. Chairperson, what has occurred to us ...(intervention)
CHAIRPERSON: I will come to your assistance in that regard, so you needn't worry too much about it.
MR VISSER: Thank you, Mr Chairman. But what has occurred to us, Mr Chairman, is that back at the guesthouse I have on computer a summary which is a very abbreviated summary of what the original argument was in this regard, which I can print out and let Commissioner Bosman have tomorrow and perhaps during the course of the hearings where we won't repeat this again, she might put to me if there are any problems which she might have in that regard.
ADV BOSMAN: Yes, I thank counsel for that suggestion, Chairperson.
MR VISSER: It's in fact not terribly much, Mr Chairman, it's about 30 pages.
Mr Chairman, coming then to the issues before you now, we have the situation where Vorster tells you and we know is common cause, that one of the most important aspects of the quest in the conflicts of the past was the question of information. He's referred to the circular in his amnesty application, where the need to recruit informers was specifically mentioned. We know that one of the reasons why the Security Forces were as successful as they were during the conflict of the past, was primarily because of their ability to recruit informers of all sorts and shapes and were able to take pre-emptive action or proactive action and thereby sustain the government of the day.
Mr Chairman, it was no different in the present case, except for one factor and that is that according to the evidence of Mr Vorster, he had received an indication from his informer, Goodwill Sikhakane, that this particular victim, Mr Cele, was interested or was willing to become an informer. As Mr Botha said, well that made it an extra incentive then to approach Mr Cele. The way in which they did it, Mr Chairman, and this we have seen also in the case of Ndwandwe, was where the person was outside the borders of the country he would abducted and attempts would be made to recruit that person to become an informer.
The process, Mr Chairman, of that recruitment has been discussed in previous amnesty applications. We saw fit not to do so again, but in essence it's a matter of common sense. When you recruit a person you have to inform him of contact points, contact persons etc., and in a sense you lay bare your own information network to that person. That in turn implies that before you do so you have to have complete faith as far as it is humanly possible, that the person is genuine when he indicates that he will work with the Security Police, in order not as it were, to blow your own cover.
In the case of Cele this did not happen except to the limited extent of Goodwill. His cover was clearly blown the moment he enticed Cele to get into the kombi and thereafter was abducted and Goodwill was left behind in Swaziland. Clearly if the operation, the attempts to recruit Cele would be unsuccessful, Goodwill's situation would clearly be compromised if Mr Cele would have been released thereafter. Which in turn formed one of the options which was considered at the end of the day by Vorster and Taylor and perhaps to a lesser extent by Wasserman, although he said he associated himself therewith, in deciding that Cele had to be eliminated.
Now Mr Chairman, I'm not going to repeat the evidence, you heard the evidence. What we would like to submit to you is that there appears to be no material conflicts on the evidence, the real question here would turn around perhaps proportionality. As far as the political background in concerned, Mr Chairman, we submit that there can also be very little doubt that these policemen didn't do so because they had nothing else to do, but they did so in order to do their duties, perform their duties as they saw it as policemen, in order to sustain the government.
One can argue about the merits or demerits of the method of wanting to recruit an informer and then going about it in the way in which the applicants did, namely entering Swaziland and abducting that person. Well Mr Chairman, of course in those times people were killed on both sides of the line and you have heard evidence time and time and again on many occasions, of the risky position in which informers found themselves.
Ms Thabethe suggested why instead of abducting him, that is Mr Cele, didn't you simply send Goodwill to go and talk to him and ask him whether he's prepared to work with the police. Well that would have been a crazy suggestion, Mr Chairman, because if Mr Cele - if he had misread Mr Cele, he would have signed his own death warrant by doing so, because he would have exposed himself.
It is also clear, Mr Chairman, that members of the Security Police couldn't go into Swaziland and attempt to recruit him there, they would be off their normal domestic ground, they would not know what situations they would encounter there and by far the safest would be to bring them back to the Republic of South Africa.
This in turn, Mr Chairman, brings up this whole question of the accord which was entered into between the South African Government and the Swazi Government. We hear about this accord, Mr Chairman, but frankly, speaking from our side, we have never heard any evidence presented at any of these hearings that the Swazi Government allowed a free hand to the South African Security Forces in Swaziland.
CHAIRPERSON: I think the information one gathered over the period of time was that there may be a few highly placed individuals in the Swazi Government who may be playing ball with the South African Government, rather than an arrangement between them at a government level.
MR VISSER: Yes. Yes, that certainly is our impression. We may be right, we may be wrong, but it accords with your impression. Certainly from an interstateal agreement point of view there is no evidence which we are aware of that suggests that members of the Security Forces of this country could enter Swaziland and act unhindered, one rather gets the impression as you've just pointed out, that perhaps in government as you've pointed out, but certainly in the Police Force in Swaziland, there were certain people placed in certain positions that were sympathetic to the cause.
And if one had to speculate, Mr Chairman, and I don't want to go too far off the beaten track, but if one had to speculate, one would imagine that if the Swazi Government had a real problem with a person who is incidentally also the enemy of the South African Government, they would have turned a blind eye to any action taken against such person in Swaziland.
But for all practical purposes, Mr Chairman, it's quite clear that the applicants in the present case went into Swaziland. Although they entered legally through the border gate, what they did in Swaziland they did stealthily. It wasn't as if there was a normal arrest, a taking to a police station, a booking of Mr Cele etc., nothing of the kind, he was abducted, it was done stealthily.
Now Mr Chairman, Mr Cele is now taken out of Swaziland and as Vorster said to everyone's surprise, he was not amenable to work with the South African Police. In fact, Vorster says that he thought that he had been misled by Goodwill. Be that as it may, the fact of the matter is that there was - as was exactly the case with Portia Ndwandwe, suddenly a dilemma. The dilemma was twofold in regard to releasing him, and that is the position of Goodwill.
And of course here the Security Branch had a man who was a high-ranking official by all accounts in MK, and which they would not be able to release because the whole point of the war was to eliminate, and I use that in the broader sense of the word, not necessarily killing, but to eliminate people in key positions in order to bring disarray in the organisation of the opposing enemy.
So Mr Chairman, at Amsterdam it doesn't work, Vorster says that the intention was if he would be amenable to be recruited, he would be replaced in Swaziland as soon as possible for him to start operating. Clearly, that makes good sense as well because once a person stays away fro any length of time, some people might start asking for explanations and for reasons. So one can't find fault with that intention expressed by Vorster.
Now at Amsterdam the plan does not come to fruition, he's taken down to Pietermaritzburg, he is by all accounts for the better part of the day, further interrogated and attempts were made to recruit him at the farm near Elandskop without success, Taylor then speaks to Vorster and Wasserman and says "We've got a problem and it seems to me that we're going to have to eliminate this gentleman because he doesn't want to co-operate. We can't release him, we can't charge him and this seems to be the only way out". And that is what then came to pass. We don't need to go into the details, Chairperson, but you heard the somewhat emotional evidence of Mr Wasserman, of how exactly it came about and what happened thereafter.
Mr Chairman, we submit with respect, that bearing in mind the bigger picture of the conflict, the political conflict of the past, and bearing in mind what Mr Cele stood for, not in the sense of his person, but in the sense of his organisation and particularly the fact that it was an MK member, that the act was proportional to the objective that was sought to be achieved, and that was first of all to eliminate him as a key person in the MK machinery and secondly, to protect the identity of Goodwill Sikhakane.
Now Mr Chairman, we are in possession now of certain decisions that have come down. I referred to them earlier. Mr Chairman very briefly, referring to the decision in the Jack Cronje application, 2773/96, we would rely on particularly what was stated from pages 1 to page 4. The original Amnesty Committee of which you are the Chairman, dealt with many of the aspects, Chairperson, which place the actions of members of the Security Forces in perspective. And we don't need to read it to you again, Chairperson, you're very well aware of the decision, having been part of it, other than to say that we rely on - actually it's page 1 to 6, and we would ask you to incorporate the decision there taken also in - as far as the principles are concerned, in our application presently before you.
Now Mr Chairman, there was at one stage some argument before another Amnesty Committee as to the binding effect or otherwise of amnesty decisions which had been handed down. We were the first and we still are the first to concede that a Commission of Inquiry and also this particular Amnesty Committee is not a Court of law, where its judgments have precedence and have to be followed unless clearly wrong. But Mr Chairman, and I'm certain I don't have to convince you of this point, one would expect that in the interests of reasonable administrative action, one would expect - and of course also from a point of view of certainty, one would expect other Amnesty Committees to follow what was stated in decisions of previous decisions.
Mr Chairman, in that vein we refer you to the Khotso House incident amnesty decision for one reason only. You will recall that until very recently we grappled with the problem of the wording of Section 20(2)(b), because on the plain wording it would seem to indicate that the legislature had in mind with its authorisation which it specifies in that sub-section, that the act, omission or offence had to be authorised before it could be stated that it fell within the express or implied mandate of the security member who acted. And you will recall, Mr Chairman, that for a long time in our argument when we addressed this sub-section, we referred you to what appeared to us to be an inherent paradox, because the paradox being that amnesty may only be granted for acts and omissions which are also offences. And certainly as you put it in the Kondile case to General Erasmus, no act existed at the time which authorised any policemen to kill Mr Kondile. Now in the matter of the Khotso House bombing, Mr Chairman, there is a part of the judgment which deals very specifically for the first time, with the wording of sub-section 20(2)(b). I might just tell you how it came about, Mr Chairman. We appeared a week or two before the judgment came out, or perhaps even longer, before this judgment came out, in Johannesburg in other amnesty applications before a Panel of the Amnesty Committee, which inter alia included Adv de Jager and Adv Gcabashe. During that hearing the merits of, and the interpretation of (b) of Section 20(2) was argued, I may add, quite hotly so, and we then asked for permission, for time to prepare a proper argument and we did so and that argument was presented to that Committee. As it turns out, Mr Chairman, it would appear that in the Khotso House matter this argument that was presented in another matter, as I've just explained to you, was included in this decision probably because two of the Commissioners, two of the four Commissioners in the Khotso House incident, were Adv de Jager and Adv Gcabashe.
So Mr Chairman, what we submit to you is that from page 5 of that decision, which you no doubt have, we submit you will find a correct interpretation of sub-section 20(2)(b), starting with authorities such as MKHIZE vs MARTINS in 1914AD referring to British law and running up to 1945AD in FELDMAN'S case, which appeared to us, with respect Mr Chairman, still the existing law in our country. We are not going to repeat it, Chairperson, we merely wish to direct your attention to the fact that we believe that there is now a correct interpretation of that sub-section before you and we would ask you with respect, to follow that interpretation as presented in the Khotso House matter.
If you don't have a copy of the Khotso House decision, Chairperson, we can make one available.
CHAIRPERSON: We will be able to get it.
MR VISSER: Thank you, Mr Chairman. It's a very brief decision, it will take no time at all for you to read it. And the relevant part, Mr Chairman, runs from page 5 - sorry - yes from page 5 to page 8.
Mr Chairman, perhaps lastly, we were struck by some similarities between the present case, the facts of the present case and that of the one which you presided in concerning Mr Kondile. You will recall, Mr Chairman, that in Kondile's case he was first arrested when he came across the Swazi border. There was some suggestion under false pretences. He was arrested by the Security Branch in Bloemfontein and then he was placed over to Port Elizabeth. At Port Elizabeth he was assaulted and eventually he ostensibly agreed to become an informer. Du Plessis was the person who dealt with him. And he told you at the time that Mr Kondile indicated that he would become an informer and he, that is du Plessis, believed him, believed that he was genuine and started exposing some contact persons to him and some information routes, after which, on a particular day when du Plessis went to visit Kondile, he sat on his bed and he found a note which was written by Kondile and which was obviously intended to be smuggled out of the prison, in which he informed the ANC that he was assaulted and compelled to agree to become an informer, but that he wasn't going to become such an informer and that he would report to them the moment he is released.
You will recall, Mr Chairman, that a decision was then taken together the then Brig van Rensburg and Gen Erasmus, and it was decided that in the circumstances they couldn't release him, they couldn't charge him and therefore they eliminated him. And that decision, Chairperson, has also come to hand, it is under AC/99/0037, where you as I said before, were the Chairperson and where you were assisted by Judge Pillay and Adv Gcabashe and Adv de Jager.
And we submit, Mr Chairman, that your decision in the Kondile matter finds application to a great extent in the present case, the only difference being that in this case Mr Cele did not indicate that he was prepared to become an informer after he was abducted, but apart from that and apart from the degree of the assault, Mr Chairman, there appears to be very little difference between the two matters. And we would ask you in the light of the decision in Kondile's case, to favourably consider granting the amnesty as prayed for also in the present case.
What was impressive, if I may say so Mr Chairman, about the decision in the Kondile case, is that it showed the insight of the Amnesty Committee in placing the assaults on Mr Kondile in proper perspective vis-à-vis his killing. And that we found very interesting, Mr Chairman. And again we say with respect, that we ask you with respect, to deal with the assault in this case albeit it of a far minor nature, in the same sense, Mr Chairman. Would you grant me a moment please, Mr Chairman?
CHAIRPERSON: Yes, certainly.
MR VISSER: Yes, Mr Chairman, yes, we have presented before yourself and Commissioner Lax, argument in regard to an issue which might arise because of the fact that part of the incident took place in another country where this Commission has no jurisdiction.
You will recall, Mr Chairman, that the submission which we made and which has been accepted, I believe by Justice Miller and his Committee, in the Zero Hand Grenade, if indications which we received from the Committee can be relied upon, that is clearly not the concern of the Committee, of the Amnesty Committee what the value of the amnesty which might be granted to an applicant, will be to him. The Act in fact does give indications that that must be so. The Act speaks of "committed inside or outside the country" etc.
Now clearly, if you granted amnesty in the present case and these applicants went to Swaziland for a weekend to celebrate, they might find themselves being arrested and they won't be able to rely on your amnesty which you granted them. But that must not be held to stand in the way of you doing your duty in terms of the Act, as we submitted before and as we now submit again.
In what we will give Commissioner Bosman tomorrow, there is towards the end a little heading dealing with that issue as well, Mr Chairman. Suffice is it to submit to you that the fact that an incident took place partly within the country and partly outside the country is no - now I'm looking for a word, there's no bar to you granting amnesty. Actually I was hoping Commissioner Bosman was going to give me the latin word.
CHAIRPERSON: She may yet do it.
MR VISSER: She may yet, Mr Chairman.
ADV BOSMAN: Impedimentum is the word, Mr Visser.
MR VISSER: Impedimenta, yes, yes. Impedimenta.
Mr Chairman, we submit that the evidence which you heard from my clients would have struck you as being evidence which was tendered in a spirit of full co-operation. They have attempted to remember all the issues relating to this incident. They have made such concessions as one would expect reasonably of them to have made. And we would submit that there is no reason for you not to believe them. We submit that there is no opposition to the application and therefore ask you to favourably consider granting the applications as we prayed for.
Mr Chairman, I don't believe it will be necessary unless you ask me to do so, to go through what exactly each of the persons is applying for.
CHAIRPERSON: It's set out in the ...(intervention)
MR VISSER: We dealt with it in the evidence and we would accordingly move for such amnesty to be granted. Thank you, Mr Chairman.
CHAIRPERSON: Thank you. Yes, Mr Nel?
MR NEL IN ARGUMENT: Thank you, Mr Chairperson. I'm left in the lucky position of having senior counsel arguing the matter before me and there's not much that I can add except to say that the clients that I represented here were part of the group, although their participation in the whole operation was minutes, if I may call it that. I submit also with respect, Mr Chairperson, that their applications, that of Mr Brooks and Mr Verwey complies with the requirements of the Act and that it is associated with a political objective and also in the way that they gave their evidence they made a full disclosure, even though Mr Brooks admitted that at a previous occasion he did not tell the truth about this incident.
And it's in light of that, Mr Chairperson, that I also with respect ask you to consider their application favourable. Thank you, Sir.
CHAIRPERSON: Anything you wish to say?
MS THABETHE IN ARGUMENT: Thank you, Mr Chair.
Mr Chair, with regard to the requirements of the Act, as my learned has indicated we have no opposition, we have nothing to oppose on, more especially because the victims were not there when these things happened and clearly it was done in the context of political conflicts of the past.
However, Mr Chair, I've been requested by the family to raise a few concerns on their behalf. And Mr Chair, I would like to put it on record that I did explain to them the difference between what is factual and what is emotional. However, they have requested me to put this on record, so I would like Mr Chair to allow me to do so.
CHAIRPERSON: May I just interrupt at this stage and say now who of the dependants are present whom you represent?
MS THABETHE: Mr Chair, I've got the brother to Mr Dion Cele and two sisters.
CHAIRPERSON: Thank you.
MS THABETHE: And also an aunt.
CHAIRPERSON: Thank you. Yes, do carry on.
MS THABETHE: Thank you, Mr Chair.
They've raised concerns that its not quite clear to them why it was necessary for the applicants to have used the kind of method they used, especially because it was indicated clearly that Mr Cele showed or indicated a willingness to co-operate. I did put these concerns on the applicants and they were here, they heard what the applicants have to say, Mr Chair.
Secondly, they are also concerned with the violence as they put it - I'm quoting them, the violence that was used in killing him and they also say they don't see why it was really necessary to kill him. They believe the policemen at that time did have a means to frame him, which could have led to his arrest. Also I did put this to the applicants and they responded. The victims were listening.
Thirdly, Mr Chair, they've raised a concern that the applicants don't show any remorse, they believe that they didn't show that they were sorry. I also explained to them the difference between what the Act requires so that someone can get amnesty and the issue of remorse. I did explain that to him, that remorse doesn't form part of the requirements of the Act to get amnesty. Nevertheless, they requested me to raise this, hence I'm raising it.
CHAIRPERSON: Quite alright.
MS THABETHE: The family also said I must raise it that they hope that it will be known not only in this room, but in public as well, especially where they live in KwaMashu, that Mr Dion Cele was not an askari or an informer, because all along they've been harassed by the community they live in because there were those rumours that Mr Dion Cele was an askari and was an informer. And it became clear from the evidence of one of the applicants that probably because Mr Sikhakane was not told that Dion Cele refused to become an informer, that's where the rumours could have stemmed from. Mr Chair, the rest I leave it in your capable hands. Yes.
CHAIRPERSON: Thank you.
MS THABETHE: Thank you.
CHAIRPERSON: The Committee will consider all the evidence and the information placed before us and in due course will make known its decision.
How to accede to one of the requests that has been made by the dependants of the deceased, or rather the family of the deceased, is to me a reasonable request and I do not know how one can accede to that request. We will have to think of some mechanism which would make it known, when Dion Cele died he remained a loyal MK man, a loyal ANC man and that he never became an informer.
Now we will have to think about how that can be done, but if there is any way in which that can be done, steps should be taken to achieve that. You will convey that to your clients.
MS THABETHE: Yes, I think the media can assist us a great deal in that as well, Mr Chair.
CHAIRPERSON: Right you are. That brings us to the end of these proceedings. We will now adjourn and resume at nine thirty tomorrow morning.
MR VISSER: Yes, Mr Chairman, that would be with the application of Mr Tekere - concerning Mr Tekere.
MS THABETHE: Yes, Mr Chairman.
CHAIRPERSON: Yes. Mr Nel, you're not in that are you?
MR NEL: Mr Chairperson, I - as I've indicated before lunch, do represent the late Col Taylor and the reason why I did not go to my office during lunchtime is because I've had a call from the South African Police informing me that they would - are considering me still carrying on for the late Col Taylor and they will communicate their decision to me in due course.
CHAIRPERSON: Well we've indicated to you what our views on the matter are.
MR NEL: Thank you, Mr Chairperson.
CHAIRPERSON: Thank you. We'll adjourn and resume at nine thirty tomorrow morning.
MR VISSER: Mr Chairman, before you rise - I hate to give the impression that I want to be here longer than is necessary, but may I place something before you for your consideration. We've raised this before. The way in which matters are running, Mr Chairman, and we already anticipated this, we'll probably be finished by lunchtime tomorrow with Tekere, then we're going to have a half a day which - and a half a day on Friday, assuming that you will be adjourning at 1 o'clock on Friday as is usual, which makes up a day. If it's possible that the Ninella matter might possibly be moved forward ...(intervention)
CHAIRPERSON: Will you consider that?
MR VISSER: ... to tomorrow ...(intervention)
MS THABETHE: Yes, Mr Chair, coincidentally I had drafted a suggested roll. I was going to discuss it with my learned friends after this.
CHAIRPERSON: Very well. At least you'll make the necessary enquiries and see if it is possible to do so.
MS THABETHE: Thank you, Mr Chair.
CHAIRPERSON: Thank you.
COMMITTEE ADJOURNS
