CHAIRPERSON: Today we have just got to hear submissions. Mr Knoetze are you ready to give the submission?
MR KNOETZE: Thank you Mr Chairman. Yes I am ready Mr Chairman, but before I address you may I seek permission from the Committee to call my client, General Joggel van der Westhuizen to speak a few words to you.
CHAIRPERSON: You did discuss this matter with us in chambers and we can see no difficulty in calling the General again. Mr Knoetze you say it's just a statement he wishes to make - you don't have to take the oath or what?
MR KNOETZE: It's a statement Mr Chairman, the oath is not necessary.
CHAIRPERSON: Yes.
GEN VAN DER WESTHUIZEN: Chairperson thank you very much. I'd like to say the following
There are three things about which I have regrets.
Firstly, I am sorry about the fact that the new RSA had to be borne from a revolutionary war and that it wasn't the result of an evolutionary process. A political process which should have started decades ago.
Secondly, what I am sorry about was that Strelitzia was never applied. That would have made a plan like Katzen unnecessary.
But above all what I am sorry about is that there are all those victims and casualties on both the revolutionary and the counter-revolutionary sides. I regret the deaths and the maiming and - I am sorry about the death and disruption and the maiming of people on both sides and especially one thinks of all the civilians, civilians on both sides who were affected.
Having said that, Chairperson, I am very pleased that the revolutionary war never ended up as a destructive civil war, because a civil war is one of the worst types of war which a country can experience, and the fact that it never degenerated into a civil war should be acknowledged by both sides who took part in the war and both sides should be given recognition for that.
Secondly I am pleased that nobody was directly killed as a result of Katzen.
In the third place I am glad that, as one of the first generals to appear before an amnesty committee, I had the opportunity to sketch the Defence Force's role in this war.
I am also pleased, and I am glad that I have the opportunity to take part in the peace and recovery of the country. For me a general who only fights in the war and does nothing afterwards is only half a general.
Then in conclusion, I came here and didn't know what to expect. There is a lot of criticism expressed towards the TRC, for me the proceedings here were dignified and just and fair, and I feel the better person for it.
Thank you.
CHAIRPERSON: Thank you General, we appreciate those words that you've given.
Mr Knoetze.
MR KNOETZE ADDRESSES: Mr Chairman may I start off by referring the Committee to Section 20 of the Promotion of National Unity and Reconciliation Act No.34 of 1995. I will take the section portion by portion and deal with it as we continue Mr Chairman.
It starts off by saying that:-
"If the Committee, after considering an application for amnesty, is satisfied that..."
Now regarding the question as to what comprises an application Mr Chairman, I would like to refer the Committee to the decision of M G HOLMES (PTY) LTD v NATIONAL TRANSPORT COMMISSION AND ANOTHER 1951(4) SA 659 (TPD), more specifically at pages 666H-667B, where the learned judge indicated that it was not only the written application but everything that is placed before the tribunal that comprises the application.
So that in this instance, Mr Chairman, I submit that General van der Westhuizen's application comprises his written application as well as the verbal evidence which he gave as well as the exhibits that we handed up, as well as this address which I am now making to you.
Then secondly, Mr Chairman, regarding the words "is satisfied that", I would like to start off by referring the Committee to the post-amble to what is called the Interim Constitution, namely the Constitution of the Republic of South Africa Act 1993, Act 200 of 1993, which reads inter alia as follows:
"This constitution provides an historic bridge between the past of a deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex; the pursuit of national unity; the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the construction of society. The adoption of this constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
There can now be addressed on the basis that these are a need for understanding but not for vengeance; a need for reparation but not retaliation; a need for ubuntu but not for victimisation, in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past".
To add onto that, Mr Chairman, to refer you to a portion of the preamble to the Promotion of National Unity and Reconciliation Act which reads:
"And since the Constitution states (and the reference is to the Interim Constitution) that the pursuit of national unity; the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society and since the constitution states that there is a need for understanding but not for vengeance; a need for reparation but not for retaliation; a need for ubuntu but not for victimisation; and since the Constitution states that in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past".
Then the legislature continued to write down the Act.
Then thirdly on this point Mr Chairman, I'd like to refer you to the decision in the Constitutional Court of AZANIAN PEOPLES' ORGANISATION AND OTHERS v THE PRESIDENT OF SOUTH AFRICA AND OTHERS 1996(4) SA 671, and more particularly at page 685, paragraph 19. The judgment was given by His Lordship Mr Ismail Mohamed.
"To allow the culprits of such deeds...."
and he is now referring to gross human violations...
"...to remain perhaps physically free but inhibited in their capacity to become active, full and creative members of the new order by a menacing combination of confused fear, guilt, uncertainty and sometimes even trepidation, both the victims and the culprits will walk the historic bridge described by the epilogue, will hobble more than walk to the future with heavy and dragged steps delaying and impeding a rapid and enthusiastic transition to the new society at the end of the bridge, which is the vision which informs the epilogue.
Even more crucially, but for a mechanism providing for amnesty the historic bridge itself might never have been erected. For a successfully negotiated transition the terms of the transition required not only the agreement of those victimised by abuse but also those threatened by the transition to a democratic society based on freedom and equality. If the Constitution kept alive the prospect of continuous retaliation and revenge. The agreement of those threatened by its implementation might never have forthcoming and if it had the bridge itself would have remained wobbly and insecure threatened by fear for some and anger for others. It was for this reason that those who negotiated the Constitution made a deliberate choice preferring understanding over vengeance; reparation over retaliation; ubuntu over victimisation".
Why I refer you to this Mr Chairman, is to submit to you that you should rather more easily be persuaded and satisfied than not, and that by adopting that more lenient attitude you will be, in fact, doing that which the Interim Constitution and the Act and what Judge Mohamed has been referring to, namely to assist in the building of a new and better South Africa.
Then Mr Chairman, Section 20 continues in 1(A) by a reference to the application. It says:-
"If the Committee after considering an application for amnesty is satisfied that the application complies with the requirements of this Act..."
Now we submit that that reference to the application must be a reference to what is stated in Section 18, which is the formal and written part of it.
CHAIRPERSON: Is that, that is the way that it's approached, and I don't think there's any difficulty in this matter relating to that ...(intervention)
MR KNOETZE: I submit, not, Mr Chairman.
CHAIRPERSON: In respect of both applications.
MR KNOETZE: Then 21(B) reads, Mr Chairman
"The act, omission or offence to which the application relates is
1. An act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsection 2 and 3".
Now in this regard, Mr Chairman, it is common cause, I would submit, that General van der Westhuizen was a member of the security forces at this stage, and if one then asks oneself, because section 21(b) forces you to go to section 22, whether the General was in fact performing these acts in the course and in the scope of his duties and within the scope of his express or replied authority.
CHAIRPERSON: Yes I think in that regard you know one can conveniently go to section 22 ...(intervention)
MR KNOETZE: "B" Mr Chairman.
CHAIRPERSON: No, sorry, section 20(3) and exclude personal gain, personal malice, ill-will, spite. I think once those have been excluded it's easier to then look at section 22. I don't think there's any question, in the evidence before us, of any personal gain, personal ill-will, malice or spite.
MR KNOETZE: In my submission there is none Mr Chairman.
CHAIRPERSON: Ja.
MR KNOETZE: On the contrary. The man did everything which he did, not only to comply with his direct orders and indirect orders, but also to benefit the people over which he had the duty to protect them.
CHAIRPERSON: Yes, and the personal gain of course referred to there relates to gain resulting from the specific act or incident. It doesn't obviously exclude salaried persons.
MR KNOETZE: Obviously Mr Chairman.
ADV SANDI: Maybe Advocate Knoetze one, in this connection, can also mention the fact that he had, the General had an ultimatum to get things sorted out by December 1986.
MR KNOETZE: That is true Mr Chairman. I would have obviously moved to that point, subsequently. But in my submission the most clear indication of the fact that he did what he did because he had to, is his directive in terms of which he was performing his duties and that appears in Exhibit C page 880, paragraph 4, which says
"The safety of the Eastern Province Command, the territory and the people resident there must be secured against the conventional landward onslaught from outside the RSA as well as military insurgents' activities from inside or outside the constitution territory of the RSA".
and that is precisely what he was doing.
I also wish to refer you, Mr Chairman, to the directive which has been marked Exhibit D, which in paragraph 3 read with paragraph 8 says the following.
"By virtue of the fact that you are the Chairman you are given the authority to carry out all the functions listed below and to do so within the JMC context".
Then paragraph 6 reads as follows:
"The JMC must have a plan of action in terms of which timeous and integrated inter-departmental action can be instituted whether on a proactive or reactive basis and the planning must provide for the co-ordinating of well-considered long-term planning which has as its aim the ensuring of the welfare and security of the populous and to develop it optimally, as well as a plan, a contingency plan to ensure that short-term welfare plans regarding certain problem areas exploited by the enemy can be carried out".
and then continues to set out how that should be done.
My submission is, Mr Chairman, that what General van der Westhuizen did in respect of Katzen, the writing of the plan and the subsequent execution thereof, falls squarely within those clear instructions which he had. But then as far as his directive is concerned, which appears on page 880 one can also refer to paragraphs 13 and 14 which refers to the JMC and says:
"I hold you responsible for the effective functioning of the JMC..."
and so forth.
And then as far as the "JMB" is concerned -
"I hold you personally responsible for the effective functioning and management of the JMB".
and you've been told, Mr Chairman, what the purpose of those two systems were.
Then Mr Chairman on a broader scale I can refer you to numerous portions of what appears in Exhibit C, to indicate that on a broader scale this was also what he was expected to do. I can start off by referring you to Malan, on page 693, and that which he did, I submit, falls squarely within the broad indications given by General Malan. If I may take you, for instance, to page 707, paragraph 6.2. It reads:
"The South African Defence Force as an organisation had a decentralised command structure. This meant that the authority and responsibility in the execution and functioning of the South African Defence Force was delegated. This is a universal accepted philosophy of management and applied world-wide by military forces".
Now that is what the position in which General van der Westhuizen found himself. He was a commander of the Eastern Province Command and had to do, in terms of his broad instructions, that which was necessary in that area and Katzen is what he thought was necessary.
And then page 709, paragraph 6, the last portion which reads:
"Therefore in 1985 the government was forced to internally employ the South African Defence Force in service in addition to the South African Police".
In other words the territory of the Republic of South Africa was declared an operational area for the South African Defence Force. Merely to indicate once again to you, Mr Chairman, that it was a legitimate fight and war against the terrorist organisations.
Then paragraph 7.3 and 7.4 on page 710, especially paragraph 7.4 where General Malan stated that -
"This essential direction of the South African Defence Force was not in all cases limited to only its own terrain. The South African Defence Force applied it wherever it could act independently".
Here reference can be made to hundreds of community projects over the length and breadth of Southern Africa which is also what the General did, Mr Chairman.
Then page 722, paragraph 10.4 where in the second portion it is stated that -
"During this time...."
which is the same timeframe during which Katzen was written and executed Mr Chairman -
"...the government's policy was clear- stop the perpetrator of violence at all costs, the carrier of the car-bomb, landmine, limpet mine, from the neighbouring states had to be destroyed, outside our borders or inside the country before he could commit his atrocity. The destruction of the terrorist, his base and his capability was the mission of every soldier in the South African Defence Force and was also the policy of the government of the day. In this way the killings of innocent civilians could be prevented".
Which is a much stronger policy than that which General van der Westhuizen tried to execute when he did Katzen, Mr Chairman. He wasn't going to the extremes that would, even if he had, been within terms of the government's policy at that stage.
I can also refer you, Mr Chairman, to the submission made by the SANDF which is the first part of Exhibit C where on page 135 and 136 paragraph 55. There appears a quotation from what was broadcast by Radio Freedom which clearly indicates the manner in which the forces which General van der Westhuizen was opposing saw the situation at the time. It says:-
"Ambushes must be prepared for policemen and soldiers with the aim of capturing weapons from them. Our people must also manufacture home-made bombs and petrol bombs. In addition our people must also buy weapons where possible. After arming themselves in this manner our people must begin to identify collaborators and enemy agents and deal with them. The collaborators, who are serving in the community councils, must be dealt with. Informers, policemen, special branch police and army personnel living and working among our people must be eliminated. Every homestead, every village, every township must be turned into a revolutionary base of the people. Make the country ungovernable. The whole of South Africa must be changed into a battlefield. The time has come for whites to be regular visitors to graveyards".
Now clearly Mr Chairman, the government of the day, as well as General van der Westhuizen in his position, was entitled to fight the war in the manner in which it did against the people who made such declarations.
Then I can also refer you, Mr Chairman, to what is termed as Book 1, page 761, more particularly at page 762. You will recall that this is an annexure to the submission which the SANDF made to the Truth and Reconciliation Commission. On page 762, paragraph 1.1, Mr Chairman, it is indicated that already on the 4th of March 1980, when this document was written it was stated that:
"Southern Africa is currently finding itself in total conflict situation and if a solution isn't found quite soon for the problems and issues in this area can be totally destroyed".
Then page 764, paragraph 1.13.4 where in the second portion of that paragraph it is stated that -
"In order preventing the black states developing into areas which could constitute a great threat for the security of the RSA, it is essential that these areas must be taken up from a national security point of view as an integral part of the southern Africa strategy and utilised as allies against the communists".
which I submit, Mr Chairman, falls squarely within the purposes for which General van der Westhuizen wrote and executed Katzen.
The same goes for the second portion of paragraph 1.14.1 of that page which reads:
"Meaningful consolidation of the black states and areas and the incorporation into a South African league of nations respectively as full members or associate members as well as a successful installation of an own constitutional direction under the black members of the RSA will lead to a greater goodwill, trust and confidence and decrease in the internal threat".
Once again, Mr Chairman, a clear purpose of plan Katzen.
The same can also be found on page 768, Mr Chairman, paragraph 3.5.1.3 where as part of the political policy it is stated that - it can be summarised to include -
"The establishment of constitutional structures providing for the full independence of the black peoples in South Africa; meaningful consolidation of the black states and areas, and the acceptance and implementation of a socio-economic programme aimed at the development of these black states and areas".
Once again you will recall ...(indistinct) of that which he envisaged Mr Chairman. And there are others Mr Chairman. I won't keep you longer on ...(intervention)
CHAIRPERSON: I think you know on this line as well Mr Knoetze there's - we've heard that what General van der Westhuizen did was to draft the plan. I mean he conceived it and drafted it, but then he submitted it to his authority, to the head of the Defence Force ...(intervention)
MR KNOETZE: The army ...(intervention)
CHAIRPERSON: ...to the army for consideration. It could have happened like Strelitzia and just ended there, be killed and buried, end of story, but the decision was then taken at that level to go back, do a little bit more work on - appoint a couple of chaps to assist and then to proceed with portions of phase 1. So it's not that General van der Westhuizen did this himself and implemented or started to implement it, but I think that's also an important consideration.
MR KNOETZE: I submit it's most important Mr Chairman. Clearly the plan was, at least as far as that portion, authorised, the evidence states that the people who we say authorised it, have been represented in this hearing before you and no objection has come from any one of them. On top of that the fact that payment has been made to various people, the payment that was eventually made to Ron Reid-Daly and his squad could not have been made if there wasn't proper authorisation.
So if the Committee is satisfied on that Mr Chairman I won't take the time for that.
CHAIRPERSON: You see I mean we are bound by the evidence in front of us unless we are the view that it's so improbable that it may be rejected as being false ...(intervention)
MR KNOETZE: Which evidence I submit, Mr Chairman, with respect, is acceptable not only because it wasn't challenged but you heard the quality of it. The witness was clearly speaking from his heart. He was honest. He disclosed everything. You will recall that we also made further documents available to the leader of evidence which he did not even find necessary to refer to, which must be an indication to you that everything of substance was in fact referred to. It is for that reason, Mr Chairman, the requirement contained in section 21(c) I submit has also been satisfied.
Mr Chairman there is also of course section 22(e) which, if the Committee has any problem, in regard to the coup d’etat in respect of which you will recall General van der Westhuizen testifying that when Ron Reid-Daly wanted to do it he was advised not to do so, the defence force wasn't supporting him anymore although it had been part of the plan initially. But 22(e) reads that:-
"Any person in the performance of a coup d’etat to take over the government of any former state or in any attempt thereto, is also entitled to amnesty".
CHAIRPERSON: Yes.
MR KNOETZE: And insofar as that may be necessary I request that you also take that into consideration Mr Chairman.
If I may just come back to that which is contained in section 23A-F by saying to you that in my submission all the requirements contained there have been satisfied by General van der Westhuizen but that if you should have any problem I would like to refer you to a decision in which these principles have been discussed which is RAPHOLO v THE STATE PRESIDENT AND OTHERS 1993 (1) SA 680 (T), but I submit Mr Chairman this is not a borderline case. You need not do so.
CHAIRPERSON: Yes I think that can - when you are dealing with illegal orders or orders to commit illegal acts etc that covers those principles, amongst others as well.
MR KNOETZE: Precisely Mr Chairman.
Mr Chairman in conclusion then I would submit to you that the evidence before you in this amnesty application is such that you ought to be satisfied that the application complies with the requirements of the Act and that the act and commission of the offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past and that the applicant has made full disclosure of all the relevant facts.
Now we have already addressed you Mr Chairman as to whether it is necessary to refer to specific delicts or offences. I repeat, with respect, that it is not necessary but you will recall that we have handed in Exhibit E and that those are the acts and omissions or of possible offences that we could identify but we would not like to bound to it Mr Chairman. I would prefer your order to refer to the broad actions flowing from Plan Katzen as we have stated it in our application, and of course I don't want to prescribe, but if you want to couple it to "E", please do so by not limit ...(intervention)
CHAIRPERSON: You want a dragnet ...(intervention)
MR KNOETZE: Not limiting the generality of the application as it was first filed Mr Chairman.
In conclusion, Mr Chairman, there is just one thing that I found reading through a book which is called the "Groot Aanhalings Boek", it quotes our President and it also indicates something of which General van der Westhuizen has been doing. The President said:-
"A freedom fighter learns the hard way that the oppressor determines the course of events and the oppressed is often given no choice but to apply certain methods which is actually a mirror of the methods used by the oppressor".
and I suppose Mr Chairman, that this is also relevant in this case of ours and I ask you to grant the amnesty which General van der Westhuizen requested.
Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Knoetze. Mr Avenant are you ready to address?
MR AVENANT: Yes I am ready to continue.
Mr Knoetze has already touched on most of the aspects which I wanted to touch on, so I don't think it will be necessary to duplicate.
CHAIRPERSON: Yes it wouldn't be necessary to repeat - we find that it often occurs in hearings of this nature that the person who has to address second can adopt much of what has been said in the beginning, particularly relating to the sections of the Act and the requirements etc.
MR AVENANT ADDRESSES: Mr Chairman I would just like to concentrate on the orders and instructions, whether General Griebenauw acted on the instructions.
(The Interpreter requests the speaker to perhaps sit closer to the microphone, it's hard to hear him).
CHAIRPERSON: Sorry Mr Avenant, the Interpreter has asked if you could just put the microphone closer to you, she is having difficulty hearing you.
MR AVENANT: Thank you. I would like to just for a moment just concentrate on the order given to General Griebenauw since Katzen was, to a large extent, a Defence Force initiative and I would like to go back to that part of the evidence in respect of the meeting held in Port Elizabeth where the instruction was initially given and where General Griebenauw then voiced his objections to it.
His evidence was that he received an order from the Commissioner of Police via Brigadier Schoon who attended the meeting as the Commissioner of Police's representative at that meeting. It is my submission that this order was sufficient to place him within the requirements of the Act and in any event if there had never been such an order from the police side there would never have been a withdrawal from the Plan as the later evidence proves.
I do not know if there are any further aspects.
CHAIRPERSON: I think it is quite clear from the evidence that General Griebenauw what he performed and the orders he issued in pursuance to anything under Katzen was - he wasn't acting as a maverick and trying to further his own aims. In fact quite to the contrary it's quite clear that from the start he wasn't keen on it, but what he did was, because he was obliged he felt obliged to do. I think that's quite clear from his evidence and that he took the quickest opportunity to bail out of it.
MR AVENANT: That is correct. I won't take that any further. I don't think there is any need for that.
In respect then of the disclosure, and full disclosure I'd like to mention that General Griebenauw acted or he revealed and disclosed everything to the best of his ability, everything of which he was aware relating to this operation and I can imagine that where an operation of this nature and extent is launched that there could be several smaller operations which would follow from this bigger operation of which General Griebenauw was never aware of, and will never be aware of. It is my submission that if any information is disclosed or revealed in this regard then that should not be laid at his door and say that he did not disclose that.
General Griebenauw expressed his concern regarding certain statements regarding his evidence and perception of the words used, words such as "take out" etc, and he asked me to bring it to the attention of the Committee that that was his bona fide perception after he received feedback and report-backs from Major van der Merwe to the effect that there was planning put in place which would lead to people being killed and that that was the reason why he immediately withdraw from the Plan.
If you look at the statement of Major van der Merwe in this regard it's interesting to note that in paragraph 12 where he mentions the fact that there was no planning to kill anybody done in his presence he referred in fact to the meeting of the 10th of November 1986, and there had been a further meeting after that date on the 11th of November 1986. There is no reference to that meeting.
So it is in light of these circumstances that I would like to just mention my client's concern in this regard.
If there are any further aspects which the Committee needs elucidation on then please just ask.
CHAIRPERSON: I don't think so Mr Avenant thank you.
I will just ask the others if they - are there any other submissions that wish to be made - Mr Mapoma?
MR MAPOMA: I have nothing Chairperson.
CHAIRPERSON: Any further matters at all? Thank you very much. We will reserve judgment and hope to get the decision out as soon as possible.
I'd like to thank all the legal representatives for their assistance in this matter, presentation of all the documents etc.
I have been informed that next week's hearing - for some reason or other matters weren't set down for Monday, Tuesday and Wednesday and we endeavoured to try to get Thursday and Friday's hearing brought forward to Monday, but that has not been possible. So we will now adjourn until Thursday morning when we will proceed with the application of Mr Moringer and hopefully we'll be able to start that by ten in the morning.
So we will then adjourn now to this venue to next Thursday at ten in the morning. Thank you very much.
COMMITTEE ADJOURNS
