ON RESUMPTION
CHAIRPERSON: For the record it is Wednesday the 5th of May 1999 and it is the continuation of the Amnesty Applications of WF Schoon and Others in respect of the Cosas Four incident. The panel is constituted as previously indicated on the record and the parties are represented as indicated on the record as well.
Mr Tshabalala you had to or you and Ms Thabethe had to consider this question of the brother of the victim Mr Musi. Has that been resolved?
MS THABETHE: It has been resolved Chair, we have decided not to call the brother and to continue with closing arguments.
CHAIRPERSON: Very well. Then I think Mr Visser it is over to you.
MR VISSER: Good Morning Chairperson, members of the Committee. I managed, Mr Chairman, last night to produce some 47 pages of Argument and the staff of the TRC has kindly reproduced them for us which will assist greatly if you don’t have to take notes of 47 pages.
May I start immediately with those? May I first of all indicate to you what I would be referring to. I would obviously be referring to the decisions which have been handed down by the original Amnesty Committee and particularly, and in fact only the decision in regard to Jan Hattingh Cronje. I hope that you have that available, that’s the general one, and then obviously we will be referring to the exhibits A, B, C1 and D and the other evidence in this particular case, but other than that we don’t intend to refer to any other documentation.
Chairperson, if I may proceed then with the written argument:
We say paragraph 2 that the applicants, who have confirmed in this case, when I say the applicants, I speak of my own applicants Chairperson, Exhibit A which includes statements and allegations made of fact regarding their background. That they grew up in a conservative environment and against this background and according to their beliefs and upbringing, that which was imprinted on their minds through the media and political rhetoric of the time, they were firmly convinced that those actions which they were engaged in as policemen were correct, justifiable and in accordance with their duties and within their express or implied authority. And, in fact, Chairperson, what was expected of them.
Now in the Amnesty Decision of Brig Cronje at page 2 the Amnesty Committee made reference to this very issue. At the top of the page it starts with ‘almost all policemen’ and then if skips about a third of the page down to the words "almost all policemen giving evidence before the Amnesty Committee referred to their background" and then if one may skip down to the sentence that starts "it may shorten future proceedings if the evidence could be summarised in this decision and simply be referred to in future without the necessity of repeating it in all future hearings." Now that is what we have tried to do, Chairperson.
"Almost all policemen appearing for us joined the police force after the National Party became the government of South Africa in 1948 and implemented the Apartheid Policy. They were brought up under this doctrine which was supported by schools and all the Afrikaans churches. There was rarely any voice in the circles they moved in, condemning the policy. On the contrary, the churches proclaimed the policy to be in accordance with the Scriptures and even acted against preachers like the Rev Beyers Naude who spoke out against it.
As policemen they were indoctrinated to defend the policy and the government of the day, even with their lives, should it be necessary. They accepted the legally enforced environment as the accepted and acceptable social structure of the country." That reference is made at page 2, the 6 should just come out its at page 2 and the reference is also to page 2 in the Cronje decision.
We haven’t got this as a bundle before you unfortunately Chairperson. Perhaps while we’re on this subject, perhaps we must ask you to give us some indication. We really are in a predicament. On the one hand we wish to avoid reproducing documents. Commissioner de Jager will recall at the last hearing where we stated what documents would be necessary, we landed up with a pile of documents about a foot thick and obviously that would be the most effective way of dealing with this, to have all the documents before each and every committee, but we have to bear in mind the cost of reproduction and so on and we’re really in a dilemma here. We don’t know what to do. I know that the Amnesty Committee has allowed, in the past, cross-references to be made and we are now riding that horse in the sense that we give cross-references, but if one just sits and thinks for a single moment, if the three Commissioners here have to go back to their studies to go and prepare a Judgment and they have to start looking for all these documents, its going to be an impossibility anyway. So it really is a practical difficulty which we have.
We were very tempted to have all the documents of the last Amnesty Hearings reproduced for this hearing, but I personally decided against that, rightly or wrongly. So the best that I can suggest, with respect, is if you reach a point where you say "well hang on, you say that’s what Frik said, or you say that’s what van der Merwe said, but I think we want that record" then we would be pleased if you would indicate that to us and then we can, at our cost, reproduce that for you. But unless it is absolutely vital, I believe that it shouldn’t be reproduced just for the sake of having it before you. I hope that you will agree with that Chairperson.
Oh I see, yes. Well I now understand Commissioner de Jager’s question. Bundle 1 isn’t before you. Bundle 1 should be struck out.
ADV DE JAGER: I can’t speak on behalf of everyone but I think this is one of the things you should deal with at the trial conferences and then the leaders of evidence could come back to the panel and say would you really want this or do you know about it, or whatever the position is, because I think one should try and solve as many as possible of these problems at the pre-trial conferences.
MR VISSER: Yes, the problem of course will be that even if that was done Chairperson and the representative of your Committee comes to you and asks you what you want, you wouldn’t know because you wouldn’t have had the benefit of studying the papers probably at that stage, or whatever. But I hear what Commissioner de Jager says and what I’m saying is that we are trying to find ways and means of trying to circumvent this problem. I’m not sure that we have the answer that’s the only thing.
I am just told by my Attorney, I wasn’t at this particular pre-trial conference, he says the point was in fact raised, the very point that you’ve just made and Mr Malan said that cross-references is the answer. Whether it’s as simple as that I’m not sure, but we have been following that line. But at the end of the day if something really strikes you as being relevant and you want to have a look at it and you can’t find it conveniently and expeditiously, then obviously please press on our button and we’ll do it.
Chairperson, at page 2 I refer really very briefly to what statutory provisions are relevant in considering the granting or refusal of amnesty and obviously we have been through the Constitution and the Promotion of National Unity and Reconciliation Act which, for the sake of brevity I will refer to as the TRC Act and then of course the New Constitution has overtaken the Interim Constitution, but specific provision has been made for retention in regard to the provisions regarding amnesty and I’ve just quoted it there on page 2 in case you want to refer to it.
I see my next paragraph is numbered paragraph 38. I really do apologise, I didn’t realise this. This is part of the modern age of technology where your computer believes what the paragraph number should be and if you don’t pick it up, I just noticed it this moment, I am terribly sorry.
Chairperson if we then may go to paragraph 38 we refer to Section 20, sub-section 4 of the Act and I quoted there for you "In applying the criteria contemplated in sub-section 3, the Committee shall take into account the criteria applied in the Acts repealed by Section 48" those are, and I again quote from Section 48 "Those include the Indemnity Act of 1990, The Indemnity Act of 1992 and the Further Indemnity Act of 1992".
Chairperson, the Indemnity Act Amendment Act was considered in the case of Rapolo, that you will find at page 29, the reference to Rapolo’s case, Rapolo vs State President 1993(1) page 680 and following. I don’t deal with that in these Heads of Argument Chairperson, but very briefly, what happened in Rapolo’s case is that Mr Rapolo applied for amnesty in terms of the 1990 Act, not amnesty, indemnity. His indemnity was refused. He thereafter again applied in terms of the Indemnity Amendment Act and what was discussed there which is relevant to the TRC Act was the standard of, I don’t want to use the word proof, but the standard by which the Committee or the State President as it was at that stage, had to be satisfied that requirements of the Act had been complied with and at that stage, in his Judgment, Justice van Dijkhorst referred extensively to the so-called Helgaard Principles, Milgaard Principles, which dealt with the amnesty process in Namibia and in the end His Lordship came to the conclusion that the criteria were to be subjectively approached. I will come to that again, I don’t want to go out of context, but we will just refer very briefly again to this matter when we come to the standards to be applied in the present circumstances of Amnesty Committees hearing amnesty in terms of the TRC Act.
Chairperson in paragraph 40 the TRC Act provides, in sub-section 20 sub (1) for amnesty to be granted in respect of acts, omissions or offences which were committed in the course of the conflict of the past. That immediately then constitutes the first requirement that has to be found to have existed in regard to each and every incident that application is made for amnesty, which comes before you. I have dealt, Chairperson, very briefly with that conflict of the past. I would submit to you that most of that, if not all, must at this stage be taken to be common cause.
It was politically driven, we say in paragraph 41. There were two sides to the conflict. The government on the one hand, the liberation forces on the other. Both sides thought that their struggle was the morally correct struggle. I say in paragraph 43, "we submit that moral judgements on who fought the just war take the matter no further, it certainly isn’t a requirement for the granting or refusal of amnesty" and the interim Constitution, we say in paragraph 45
supports that contention.
Chairperson, as the war unfolded, in paragraph 47, "members of the South African Police in particular experienced an ever increasing departure from their normal duties of conventional policing. It became to be expected of policemen and women to act as soldiers in the conventional war situation and that without the benefit of Marshall Law."
That’s according to the evidence of General van der Merwe in the Exhibit which we refer to in Exhibit A.
We know that the conflict escalated into a war situation. Why is it called a war situation? Because there wasn’t a formally declared war. But in all other respects as far as the conflict was concerned, it was a war and I again make reference to some of the evidence which had been given in the past in this regard, especially in the Armed Forces hearing. I cannot remember whether the Chairperson was a member of the panel of the Human Rights Violations Committee at the time.
CHAIRPERSON: No.
MR VISSER: You were not.
In any event we refer to extracts from the evidence of the Pan Africanist Congress, Mr Mlambo and members of his delegation with the references. All of this is on the Internet, it’s available on the Internet and this was drawn from the Internet, Chairperson, and also from the South African Police Johan van der Merwe and Major Williamson.
We say in paragraph 50 "in this war situation what would otherwise clearly be regarded as illegal, acquired a legitimacy and legality in the minds of members of the Security Forces. You yourself have asked the question earlier this week where Brig Jan du Preez might have got his authority from to give an order for people to be killed. Of course he didn't have that authority, that’s the reason why we’re here to ask for amnesty, but we’ll deal with that when we come to it.
In addition, some of them in a few instances which have come and may in future come before the Amnesty Committee, certain members of the Security Force looked up to the Commanders and leaders for direction and, as it now appears, some of them read instructions or approvals into words and conduct of such Commanders and leaders which were not necessarily intended. Perhaps, if I may be permitted to say so, the best example of that is that of Brig Cronje who believes that he got an instruction from Brig Viktor to kill people and Viktor gave evidence, Commissioner de Jager was present there, and the Amnesty Committee had made a decision on that. Perhaps I should just read it to you, its at page 6 of Judge Cronje’s Amnesty Decision. The second paragraph at page 6 says this: "The Committee is of the opinion, after hearing all the evidence about the total onslaught, the words used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended, that the ordinary lower rank policeman bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the government in power."
And at page 5 Chairperson Brig Cronje had testified and the Amnesty Committee decides on that evidence the following, "The Applicant testified that he had discussed with Gen Schoon and Viktor. In certain instances direct orders were given and this will be dealt with in different decisions relating to those incidents. He however also referred to what he termed general instructions." Now this is what emanated, apparently from Viktor. "It is clear that Gen Viktor had no authority to give orders to the Applicant. He might have had a higher rank, but he was second in command of the Riot Control Branch in Pretoria, although he had been in command of the Security Branch of the West Rand in 1973, served in the Security Branch at Head office in Pretoria from 1976 to 1981, when he became the Commanding Officer of the Northern Transvaal Security Branch, until 1982. From 1985 he was, as stated before, second in command of the Counter Insurgency and Riot Control Unit. This Unity obviously also dealt with security situations and it is common cause that he had discussions with the Applicant. During such discussions he might have made suggestions to the Applicant, like should a police officer’s home be attacked with a petrol bomb, then that person’s home should also be attacked with a petrol bomb. Gen Viktor testified that he believed that the Applicant accepted this as a suggestion. In whatever way this may be interpreted, the fact remains that it was a suggestion made by a senior General" which is not correct, it was in fact a Brigadier -
"to counter an attack in an illegal manner. A petrol bomb could be countered by petrol bomb, but didn’t this concept, in the mind of the foot soldier, grow to a perception that a killing could be countered by a killing."
The point we make, Chairperson, is precisely that. That in the minds of people in the course of the war what was clearly illegitimate, came to be seen as something which was justifiable and although not legal, at least permissible in terms of their duties as policemen.
I refer also to a very short extract from the evidence of Mr Adriaan Vlok in the State Security Council Hearing in Johannesburg, which says:
"From information which has now been made available it appears that there are possibly matters in which I became unconsciously involved, or for which I must take co-responsibility indirectly and I am referring here to the illegal acts committed by certain policemen who committed certain acts based on certain recent presumptions seen from their perspectives of what I said or did."
And then, Commissioner de Jager again referred to it during this hearing, the frequent public use of the expression eliminate, take out, remove from society, and suchlike only serve to create a war psychosis and an assumption of legitimacy for action by the Security Forces against the liberation movement and their supporters in the minds of the members of the Security Forces and indeed the general public. We all spoke about terrorists, we all spoke about wiping them out, it was on the news and on television, in the papers, it is only now with the sense that has come from the sobriety of having a Constitution and having been placed in a position, Chairperson, where one thinks about these matters objectively, that one starts questioning it, but there was a war psychosis in this country and I ask you to bear that in mind when considering the applications of these amnesty applicants.
The security legislation which prevailed was insufficient to empower the security forces to deal with the onslaught effectively. May I deal with that point on the evidence immediately?
Chairperson, there was a question put to one of the witnesses, whether the Cosas Four could not be effectively dealt with in terms of detention without trial. At the time, the first point, is that it was not a state of emergency at the time it was prior to the state of emergency, so the emergency regulations were not applicable. But, the only other, contrary perhaps to popular opinion, but the only other measure that could be used was Section 29 of the Internal Security Act and I don’t want to belabour the point of argue what all of that entailed. Suffice it to submit to you, Chairperson, that if one looks at the requirements of Section 29, it wasn’t all that easy to detain a person in terms of Section 29. Reports had to be made, people had to be convinced and the point about Section 29 is that it was directed to an inquiry into facts and it specifically states that you could only hold a person until he makes a satisfactory statement. So, in that restricted way, yes, detention could have helped but how long would you have been able to hold, for example the Cosas Four, before they told you that they either did or they refused to tell you that they wanted to kill Nkosi, and that could have been a matter of days. It really wasn’t the answer, in our submission.
We go on with paragraph 52. "That very fact they arise to the consequence that some members of the security forces found themselves inevitably in situations where the only solution to some problems lay outside the ambit of the law. Says Gen van der Merwe in the Armed Forces Hearing: "It was not possible to contain this whole situation through security legislation on ground or it should read grassroots level, the people became aware of the situation and they decided against this background and where these words", the use of phrases such as eliminated etc. Chairperson, "also played a role and other factors. To be able to contain the situation, other methods and actions had to be used" and that is why they used harsher actions. Perhaps, Chairperson, a good example is the Amnesty Application of Mr Steyn in Natal. If I remember correctly the facts of that application were that the victim in that case, whose name I have just forgotten, was injured during his arrest and Steyn was told to take him to hospital. On the way Steyn considered what problems they had in finding and arresting this person, thought of the role he played in the struggle and decided on his own, there and then, that it was just not on that he should take the chance of letting the man go to hospital, allowing the possibility of an escape. He took him behind a bush and he shot him. He received amnesty for that. That is the point which we’re trying to make here.
"Situations were encountered by members of the security forces which compelled them to act illegally" and that’s a sad truth about our past, Chairperson. That’s a sad truth about our past. We heard evidence in the Bopape Application, where both Commissioner de Jager and Commissioner Gcabashe were present, from Gen van der Merwe in which he made out such a strong case where, here was Bopape who suddenly died under the hands of the Security Police while being questioned, a few days before the Sharpeville commemorations, June 16th commemorations, I’m sorry, and it was just not politically on to allow the normal course of the law to take its course, for a post mortem to be held etc. because if that had come out it may have created an embarrassment for the government, it would have created an embarrassment for the government, etc. etc. etc. The point is, there were situations and we specifically heard of the situation pertaining to the protection of identity of informers, that’s another instance, where policemen found themselves in a position where they were basically compelled to act illegally, that is outside their mandate and outside the law and what we say in paragraph 54, Chairperson, is that and one of the witnesses here referred to that, I think it was Mr Mfalapitsa, is that its all very well to sit here today but one has to think of the circumstances and the conditions which pertained at the time and we just make that point, not as an admonition, not at all, but just as a word of warning that one has to guard against the armchair approach. We refer to the evidence of Adriaan Vlok, and Maj Williamson puts it very concisely, he says, "Yes Sir, I’d like to start with a quote from Klaasovitch on war and that is: "the state of circumstances from which all event, that should be events I take it, proceeded can never be placed before the eye of the critic exactly as it lay before the eye of the person acting because above all it is almost impossible that the knowledge of the result should not have an effect on the judgment passed on events which preceded it.’ That is so true, Chairperson. The rest speaks for itself.
May I turn to page 8, paragraph 55. It is inevitable too, we submit, that in the conflict innocent bystanders would be affected. The ANC SACP Alliance in fact adopted the resolution for purposes of its war strategy and tactics in which the killing and injuring of civilians was accepted as a legitimate risk. I’m referring to the Kabwe Conference. I made the relevant quotations available to you. I’m not going to read it Chairperson. The point is simply this, perhaps I should just, having referred to the ANC, I better refer also to the S A Defence Force at the bottom of the page where it says, Gen Viljoen gave evidence, "the key ingredients of the South African war, therefore, I would say was violence, the military side of it, the mass action side of it, the terror side of it. The terror aimed at non-combatants became a very important ingredient and Gen Joubert said -
"The war had a clear military character which escalated up to the point that violence on all sides had grown enormously and that the actions by everyone impacted on helpless people."
It is a sad truth of the matter that in the Amnesty Applications before the Amnesty Committee from time to time one finds the result of that war and as it had affected innocent people as well.
We say, Chairperson, page 9, 56, "In the name of politics thousands who were not members or even supporters of one or the other side of the conflict became dramatically affected by the war."
Chairperson, we deal then with, in this war issue, we deal with the different strategies. The strategy of the ANC SACP Alliance, the policy strategy and tactics, to which we wish to draw your attention, really is so well known to you at this stage that it does not require a repetition. The four pillars of the struggle, the recruitment and military training of combatants, paragraph 59, the establishment and operation of safe houses and D.L.B.’s, arms smuggling, mobilisation of the masses, armed action and attacks, all formed part of the armed struggle of the ANC Alliance as expressed in the four pillars strategy.
Paragraph 16 makes the simple point that the armed struggle was intended to include the whole of the black population at least and that comes from the statement during 1980 by the central committee of the South African Communist Party who was in alliance with the ANC. The entire nation, they call it, is to be engaged and that is what made this war such a wide-ranging affair. My attorney says I should perhaps just read it, at paragraph 60, top of page 10:
"A war in which the entire nation is engaged. Umkhonto WeSizwe, the people’s army, workers, the rural masses, women, intellectuals, the religious community, selectively, in groups, or as organised individuals who use all forms of revolutionary warfare, armed or non-combat, legal and illegal means to attack and destroy all symbols, structures and organs of Apartheid power, including all those who man them."
Paragraph 61:
"The one important aspect of the strategies and tactics of the ANC SACP Alliance was to render the country ungovernable and in pursuance of that objective murder, arson, intimidation and damage to property were the order of the day throughout the country. Black residents in townships were particularly vulnerable, especially those who lived in no-go areas because the police weren’t able to protect them or their property. Black members of local Councils and Management Boards suffered the same fate. The creation of no-go areas in townships, so as to prevent the police entry, was yet another method of advancing the purpose of making the country ungovernable. Initially the ANC SACP Alliance strategy was to attack government and infrastructural targets, that is the so-called sabotage phase".
That is the phase in which things were targeted, Chairperson, rather than people. With the passage of time the target selection purposefully shifted to security personnel and their families and others, of course. All politicians, particularly black politicians were to become so-called legitimate targets within the policy framework of the ANC SACP Alliance. And we know what the result was as we set out in paragraph 65.
Paragraph 66 makes the point that, with this happening, and may I be allowed to say this Chairperson, it doesn’t matter again who was right and who was wrong, but from the objective facts which arose from this conflict, we say the previous government, and being in the employ of the previous government also the security forces, were diametrically opposed to that philosophy, one would have been surprised if it were different. Members of the security forces considered it their duty to fight against such thoughts, actions, programmes and initiatives, which were aimed at achieving the stated objectives. The original Amnesty Committee in fact also referred to that in very eloquent terms, Chairperson, at page 2 of the Cronje application. That’s the decision in the Cronje amnesty application, page 2.
"On the other hand the black people did not find the social and political structure acceptable and a revolution become unavoidable. No acceptable political solution was offered by the government and they had to rely on the security forces to keep them in power. The defence force was used against the forces repressing Black Nationalism, at first in operations outside the country, borders of the country, but later even internally. It escalated into a full-scale war although never a declared war. The fact that it was not a declared war against an external enemy forced the government to involve the police force to act against their co-citizens.
That is the real tragedy of the conflict of our past. It was, in fact, a civil war.
The Police Act was amended and in terms of section 5 thereof the police was responsible for internal security. Their functions were extended beyond the primary police functions of combating crime. A security branch was created with the ultimate task of keeping the government in power to enable them to work out the political solution, if, and when they could succeed in doing so, policemen were sent to Zimbabwe and Namibia, where they were engaged in battles. They did the work of soldiers, became involved in killing, contrary to the normal police functions of keeping peace and combating crime in accordance with the ordinary and customary laws applicable to police forces generally. Violence escalated. Since 1976 and during the 80’s a full-scale revolutionary war developed in South Africa. It became the primary task of the police and more specifically the security police, to counter what was then seen as the total onslaught by the liberation forces".
Perhaps I should just, with your leave, read the next paragraph as well.
"According to the evidence before the Committee, the police found it impossible to counter the onslaught by using the customary policing methods. An espionage network was set up, the liberation movements were infiltrated, informers were used, so-called terrorists were captured and turned into informers or even became members of the security police, not as so-called Askaris as is stated here, that is when they were informers, but they became members of the Security Police. The Security Police were seen to be, and in fact were, the thin line standing between the government of the day keeping them in power and the ANC and other liberation forces, intent on grasping power through a successful revolution. The liberation forces declared policemen to be legitimate targets for killing".
and reference was made to Gen van der Merwe’s statistics, that 998 policemen were killed in more than 6 000 attacks on police during those years of the conflict and apart from that 505 people who were seen as collaborators of the police were killed by using the necklace method, while a further 710 were burned to death.
Chairperson, we go to the target selection, I’ve already really dealt with that. We can turn back to page 9 just for a brief moment, with reference to paragraph 58, no, I’m sorry, please strike that.
As we say Chairperson the target selection changed over the years. Paragraph 71 is what I was looking for. Later the target selection was extended to include members of the security forces as well as their families and possessions, "government stooges", collaborators and informers, homeland leaders and structures, and farmers. The so-called government stooges and informers of the police, referred to by the ANC as collaborators or sell-outs, were legitimate targets of the ANC. In Sishaba of January 1979 at page 28 one reads the following, and please note, Chairperson, that this is prior to the incidents which are being heard by you now.
"In the recent period some of the black members of the police force and informers have been eliminated and there is evidence of the growing skill of the underground as well as the support of the people."
And then later in Sishaba 1986 a report of an interview with Mr Chris Hani, the late Mr Chris Hani, and the caption 25 years of armed struggle, he says :
"So the necklace was a weapon devised by the oppressed themselves to remove this cancer from our society, the cancer of collaboration of the puppets. It is not a weapon of the ANC it is a weapon of the masses themselves to cleanse the townships of the very disruptive and even lethal activities of puppets and collaborators. We do understand our people when they use the necklace because it is an attempt to render our areas and country ungovernable, to make the enemy’s access to information very difficult".
And in 1985, the year before that, Mr Joe Modise, the MK Commander said: "Collaborators are being weeded out and are lucky when they are able to escape with their lives." That was the philosophy and the sentiment of the time in regard to the kind of people that you heard evidence about in the present Amnesty Application, namely a member of the security forces in the form of Mr Nkosi and a black councillor in the form of Mr Matsidiso.
Paragraph 73, Chairperson. As we know the attacks which were carried out in the name of the ANC later became more and more civilian orientated, we refer to the Wimpy Bar attacks, the Magoo’s Bar and Amanzimtoti Bomb attack, the Church Street bomb, to name but a few. The reason why this is mentioned is still under the heading of what prompted members of the security forces to do what they did and to act the way they did.
At page 13, Chairperson, we deal with the policy, strategies and tactics of the government, which was the National Party, we all know that, during the struggle. From the earliest phases of the conflict the government and the national party who, of course, was the government, declared that it was its policy to resist and oppose the revolutionary onslaught by all means at its disposal. It is probably fair to state that during the initial stages of the conflict, the most important strategy of the South African government in execution of the policy was defence from the point of view that fundamentally that which was done by the security forces was done in reaction to, or in order to oppose the revolutionary onslaught. Vlok said in the Cosatu House Hearings: "We did not start the war in South Africa," well, that’s of course debatable from a philosophical point of view but in practice I don’t suppose one could fault him on saying that "we just participated in it." It had to be said that the actions of the South African forces were reactionary to the attacks that were launched at the government by the revolutionaries.
If I may pause there. In fairness, Chairperson, one knows that the position changed as time went by and that actions by security force members became more and more proactive, the buzz word used in that regard. We know that is so. In fact we have one such instance in the very incident which is serving before you now of proactive action rather than reactive action.
From the early 1980’s the rhetoric in most newspapers and on television dealt with the revolutionary onslaught and the government’s efforts to counter it. In fact actions speak louder than words, Chairperson. The government instituted, expanded and controlled a vast network of security structures in order to counter the revolutionary onslaught. Operational structures were created and developed where both overt and covert operations were considered, planned and launched and we know that from Amnesty Applications serving before the Amnesty Committee. These operations, page 14, included intelligence gathering as well as actions aimed at utilising the intelligence concerned. These type of operations sometimes comprised hot pursuit and/or cross-border operations and particularly preventative action which was directed at neutralising the revolutionary onslaught aimed at trained terrorists, their fellow travellers, bases, underground structures, logistical reports and material infrastructures as well as training and accommodation facilities.
Chairperson, we would like to emphasise what we say in paragraph 78 because, in a sense, this will be the driving factor. One or more of these considerations, I daresay in virtually every application by Security Force members that you will hear, in our present application the aspect of the training has been mentioned by Mr Mfalapitsa, the action against people who supported the Cadres who came into South Africa, either here or in the neighbouring states, you will hear in the next application. And so one can go on. One will always find one or more of these aspects involved in Amnesty Applications of Security Force members.
The operational structures referred to were from time to time of necessity utilised in a proactive fashion in cases where the structures concerned their personnel, agents/informers were faced with the gravest physical danger as a result of a leakage of information or the activities of traitors. These were often life and death situations of a very real nature and in order to protect both lives and property, it was decided in some instances to strike first and get in the first body blow and Chairperson, we submit that from the background as explained by the Act in its provisions, this is directly applicable to the Cosas Four situation.
The logical instruments which were available to the previous government for resisting the onslaught were the Defence Force and the South African Police.
What we have done Chairperson, and we may be forgiven for thinking that the decision which we read to you just now about the role of the S A D F and the S A P and the Amendment of the Police Act from what it was in 1912 to the present Police Act or to the then Police Act, Section 5, were taken from our argument as incorporated in the decision in the Jack Cronje case. If I may skip up to page 16 paragraph 86 because I have really read from the decision just now, which covers the previous paragraphs up to paragraph 86.
In paragraph 86 we submit, Chairperson, that this brought the police force square in the arena of politics. That is because they now had to deal with internal security, insofar as the conflict of the past was a political conflict, a war of ideologies. So they became the political fighting arm of the government and, in no uncertain way, also clearly of the National Party if one has to believe what Mr Adriaan Vlok as a previous politician had told the Committee. Policemen were wearing two hats as it were. On the one hand they had to maintain law and order and act in protection of society and its property and on the other they found themselves in the position where they had to act against that selfsame society when it appeared that those members of society were members of liberation movements or were advancing their policies and strategies.
A further paradox which arose was that Security Branch policemen were expected to uphold the law and also to successfully suppress the revolutionary onslaught in a war situation. And that takes it a step further Chairpersons, and that was the evidence of Gen van der Merwe in the Bopape hearing. In the meanwhile they were faced with practical problems which were hard to solve. We give as example the ANC SACP Alliance was succeeding with their efforts to mobilise the masses into civil disobedience. The security forces had a faceless enemy with which to contend. An enemy who did not wear a uniform or insignia which made him identifiable. The man working in the factory during the day became the soldier at night, we know that Chairperson. The nature and form which the armed aggression took was the form of placing of limpid mines, motor car bombs and other explosives which killed, indiscriminately, mostly civilians and that gave rise to an enormous, Chairperson, frustration because how do you prevent it? The only way would be through information but there is no other way. Gen van der Merwe testified before the Amnesty about a grey area which developed in the minds of some of the members of the Security Branch as to what was legal and what was illegal and that sentiment is also expressed in the statement by the previous Commissioners of Police and I give the reference there, Chairperson.
ADV DE JAGER: Mr Visser, it was never the policy the stated policy of the Nationalist Party and the Government, to kill people inside South Africa, so they could never have acted in support of the policy of the Nationalist Party or the government of the day.
MR VISSER: Chairperson, I hear and am aware of what Commissioner de Jager says, that is why I am trying under this present heading, to make out the following case. I say the strategy and the policy of the government was to resist the revolutionary onslaught. That’s where we started. I then took it one step further and I said to you that nobody can believe that the government was not the National Party because the National Party, we know, was the majority in the government, the whole of the cabinet consisted of National Party members. They were the people at the helm of the ship. Chairperson, I then took it one step further from the perspective of the conditions in the country and how policemen saw this and that’s where we are now and that’s what Gen van der Merwe was talking about. Of course no politician ever went onto a stage and said "it is the policy of this government, or it is the policy of my party to kill people", although it came close to that, one can only remind oneself of what Gen Magnus Malan said on television, when he said and you saw the video, Mr de Jager did, in the Cronje case, where he said "We will seek out all terrorists and eliminate them wherever they may be found." I hear what you say but the question that I’m addressing now is what the Security Force members thought on the ground.
ADV DE JAGER: Yes, but the Nationalist Party had a published Constitution. They were not authorised to kill anybody there. They made laws, they didn’t authorise any killings in their laws and we were all aware of those laws. Could anybody say that he bona fide believed that he had the authority to kill?
MR VISSER: Well that’s precisely the point. The government would never have been that silly, if I may put it that way, to place itself on record as being murderers. Never, and they didn’t, but what Mr Vlok said in the Cosatu House hearing is that while that is so, by what they said and did, and by giving decorations to policemen who they must have known were involved in illegal activities, the message that was sent out to the people on the ground was an entirely different one. The one is, we are fighting a war for our survival against Communism and I can understand the academic argument that Commissioner de Jager is putting forward to me but it loses sight of the realities and the practicalities on the ground. We know for example from the point of view of the ANC for example, it was not ever the policy of the ANC to kill civilians and we have had Mr Marage, we’ve had all manner of witnesses that told the TRC that, we have their written submissions where they make that point over and over, but members of the ANC attacked and killed private, innocent individuals. We know that is so. They believed that they were doing so in the furtherance of the political objectives of the ANC while their own leaders say they thought so but it wasn’t so, because it wasn’t our policy. Its exactly the same with the South African Government and the National Party.
ADV DE JAGER: But could it be said that an informed person like a General in the police could have thought that he was authorised?
MR VISSER: Yes, we submit exactly that. Authorised in the sense of, we’ll let it go, thank goodness that you did it, but don’t come back to us because if you come back to us we’re going to have to deny it. That’s was Gen Erasmus told the Amnesty Committee, he was asked in the case of Mr Bopape who was killed. Did you report higher up? He said no and they said, but why didn’t you report what you did and he said that they would just have denied it that they gave any authority. We know that that is the case. Even a General, yes, even the Commissioner of Police, yes, Chairperson, the answer is yes. He had a job to do, he had to "normalise the situation", he had the Minister on his back every day, he had the State President of this country on his back every week, he had to produce results, as Mr Vlok said, with reference to a quotation he gave, "Rome isn’t interested in excuses, Rome is interested in results." He said that himself. The pressures brought to bear also found its way into the Amnesty Decision of Mr Cronje. The pressures brought to bear on people lower down from the top was enormous because bombs were exploding all over, the country was burning, Chairperson. We know that. And who had to solve those problems? The Security Police and other policemen, and obviously the Defence Force but more specifically these Generals that Commissioner de Jager is talking about. And if they couldn’t, and of course they were not physically able to do so, pressures became more and more because why, it was a political struggle, it was politically not acceptable that the Security Forces should be seen to be losing the battle. Those were the pressures and that is what instilled the understanding with all of them, that if I can’t deal with the matter legally, I have to deal with it illegally. It’s a matter of common sense and one would have been surprised if it hadn’t been that. In fact it was such a matter of general acceptance, that the TRC Act in fact makes provision for that. It was accepted at Kempton Park that this was the situation and that is why we have Section 22F in the TRC Act, its because of the reality that this is what happened. It is much clearer, of course Mr de Jager will be correct if that is what he is putting to me, that the lower ranking officers and the foot soldiers on the ground, that's one matter, but it went far higher, Chairperson. In fact it went as far as Ministers, it went as far as Mr Adriaan Vlok and he was outright enough to come to the TRC Amnesty Committee and to admit that. The pressure was also even on him from the top and from the top we mean from the top. We know what we’re talking about.
Chairperson, at page 6, let me just refer you to what the Amnesty Committee found at page 6 in the Cronje Amnesty Decision. "The Committee is of the opinion after hearing all the evidence about the total onslaught, the words used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended, that the ordinary lower rank policemen bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the government in power". I would take it further and submit that specifically and more particularly, the Generals, who had to see that it had to be done, would have been the people under the most pressure, Chairperson. I hope that is the answer to Mr de Jager’s question to me.
Chairperson, we have reached I think paragraph 89, if you can go to paragraph 90. Because the Police became an instrument in the attempts of the National Party Government, to implement its policy of resisting the armed forces of the liberation movement, and I take it no further than that, Commissioner de Jager. They found themselves entering a field which was not intended for a policeman to operate in. The Security Branch became the Government’s police in the sense of its political police.
ADV DE JAGER: It may have been their policy to oppose it, but was it their policy to kill?
MR VISSER: But Chairperson, with great respect, if you oppose an opponent in a war situation, don’t you kill? What do you do? How do you oppose? By doing what, other than killing? That is what a war situation is about.
Chairperson if the suggestion is, and I don’t want to stick my head into politics really, but if the suggestion is that the National Party and the Government, the Cabinet, didn’t know what was going, then, frankly, one should want to ask them a few questions in cross-examination because there is no question that everyone knew that this was a war situation and everyone knew that people were dying in a war situation. There is not a person in this country who didn’t know that, with great respect. On both sides obviously.
There was very little the police could do to detect impending explosions other than to attempt to obtain information thereabout, I’ve made this submission already, Chairperson. Because it was expected of members of the Security Branch to stem the tide of violence which swept the country from coast to coast, it is only logical that individual members would have encountered situations which could not be dealt with within the confines of legal prescriptions existing at the time and that includes, Chairperson, as I have said, the top brass as well. It was their task as part and parcel of the existing security apparatus to confront and oppose the revolutionaries. In many instances this entailed meeting force with force so as to endeavour to protect the population, both black and white, and the Government/National Party from acts of terror, especially when it became obvious that normal policing and judicial processes were failing and we know they were failing. The applicants were part of such an operational structure which was properly authorised in terms of its creation, cover legend, operational funding and utilisation and we say, Chairperson, that we can make that submission to you on the facts as we know it from the conflict of the past.
CHAIRPERSON: Which applicants are you referring to here Mr Visser.
MR VISSER: Chairperson, we’re referring to all the applicants in all Amnesty Applications.
CHAIRPERSON: Yes, I assume that your submissions when you deal with applicants in your Heads of Argument, I assume you refer to your clients in this matter.
MR VISSER: It includes them, yes. It includes them, but we make a general statement of fact here Chairperson, we say that them being policemen and with the view of what they were supposed to do, they were part of an operation structure which was properly authorised, they were a properly instituted police force in terms of its creation, cover legend and operational funding and utilisation and they were used as the political arm of the government.
CHAIRPERSON: Yes. What is the cover legend? How does it fit in to this case before us? I don’t understand.
MR VISSER: Chairperson, the cover legend includes all the operational aspects which include for example matters such as what happened at Vlakplaas, the Askaris for example. All of that would fit in under the general detail of what policemen did during that time. I don’t make any particular point, of it, what I’m simply saying is that, perhaps I should simply this as follows: what they did they did as policemen,
CHAIRPERSON: Yes, I understand
MR VISSER: Not in their own personal
CHAIRPERSON: It’s a more generalised submission.
MR VISSER: Yes it’s a general submission.
CHAIRPERSON: We’re not close to the merits of this one.
MR VISSER: No, no, no, we’ll come to the merits later.
What we say is that in general members of the security police who apply for amnesty were consequently firmly under the impression that all actions launched against the enemy from within those structures were bona fide of nature justified, and properly authorised. One of the main problems which members of the Security Branch had in applying and supporting the policy of the National Party or Government, was the fact that they were obliged to act within the confines of strategy provisions whereas the members and supporters of the liberation movements did not act according to rules. In reality however there was a war situation, albeit no war declared in terms of normal war conventions as we know them. Yes, this is a repetition Chairperson, I’ve already dealt with that.
We speak of the Geneva Conventions as one of the spin offs because there was no declared war, Chairperson. Paragraph 99 then. We say many of the members and in the case in point, in the present case, it applies to all of our applicant. Many of them members of the Security Branch who applied for amnesty before the Amnesty Committee, were supporters of the National Party and its policies. They were policemen who had sworn an oath of allegiance and obedience to the government and the state. They found themselves under pressure from the top to do more, in order to prevent or stem the onslaught against the government. Gen van der Merwe said the South African Police were subjected to enormous pressure to try and stabilise the situation by amongst other things, arresting and detaining the activists who played a significant role in the unrest, or charging them and bringing them before Court and then he goes on, Chairperson, to say that it wasn’t always possible. Vlok said that he considered himself guilty of exerting pressure by using language which could have created the impression that members of the police force were expected to act illegally against the enemy. He said that he has no doubt that in certain circumstances during public speeches and interviews with the press and on television, such terms were probably understood to mean that the government was set upon finding and killing the opponents of the South African regime.
There was the evidence which Commissioner de Jager might remember of Mr Taylor in the London Bomb Case which was very much in point. But this, Commissioner de Jager, I hope might be our answer to your question which you posed to me earlier.
CHAIRPERSON: Mr Visser, I’m just flagging this question,
you’ll obviously deal with it when you address the merits of this matter before us. Your client said that they were supporters of the National Party and they were members of the South African Police Security Forces, State Employees. You will obviously tell us under what category they are approaching us.
MR VISSER: I can tell you now Chairperson. 22 (a),(b) and (f).
van der Merwe said that it was understandable that in this
situation the distinction of what is legal and what is illegal, and
what was expected and what was not expected, became a grey
area for some of the members of the Security Branch, and
Chairperson, I don’t have to read the rest of that. Paragraph 104
really speaks for itself.
105, Chairperson, if I may go to 105. Policemen were
compelled to do duty in Namibia and Zimbabwe and we know there was a war going on there. This duty involved the fighting of the so-called bush war. In this bush war they were required to act as soldiers and not as policemen. They were not expected to do normal police work, they didn't carry dockets etc. They were expected to seek and eliminate. Having been subjected to the mentality of a soldier and having acted as one, upon his return to the R S A policemen became once again expected to conduct their actions according to prevailing statutory rules and regulations and it may be fairly stated, and again Col Taylor gave evidence in that regard, it may be fairly accepted that many policemen were able to make the adaptation back to normality, but it is equally clear that some of them were not. And he referred the Commission in the London Bomb Case to some of his colleagues who were just not able to make the adaption back to normal society after having been exposed for long periods of time to bush war conditions.
Chairperson if I may then go to the next heading which is Legal and Statutory Issues. Paragraphs 106 and 107 emphasise simply the point of reconciliation which Justice Khampepe has so eloquently put it during last year, is really what the whole process is about and of course quite correctly she said so, having regard to the provisions of the post amble of the Interim Constitution and the objects of the TRC Act. And also, I refer to the Azapo case, where Justice Mahomed, also just as eloquently, summarised the situation in that regard. The first part then deals basically with the importance of the promotion of national unity and reconciliation and that is what should be seen to be done in Amnesty Applications before you Chairperson.
We say in paragraph 109 that it was for that very purpose that the parties at the Multi-Party Negotiation Process envisaged a mechanism to deal with the granting of amnesty in respect of acts, omissions (¼intervention/indistinct)
No it’s the Multi-Party Negotiation Process. Chairperson, I’m sorry. I thought it was a known abbreviation. That of course manifested itself in the TRC Act.
Now if we can turn to the TRC Act, Chairperson, we say that those sentiments are included and then immediately we go in page 23, paragraph 114, under the heading Facilitate and Promote the Granting of Amnesty, to a brief discussion of what the meaning of that was intended to be and how it should be viewed.
We say, Chairperson, first of all, we give you two extracts from the TRC Act Section 3(1) and Section 4(c). The reason why we do that is that you will observe that in sub-section 3(1), the objectives of the Commission is dealt with and in sub-section 4(c) the functions of the Commission are dealt with. In each case, in the case of the first in Section 3(1)(b) the words "facilitating the granting of amnesty to persons" are used and if you look at 4(c) also, the same words except that it says "facilitate and promote the granting of amnesty" are used. Chairperson, the reason why we set out both those subsections is for the following reason. It may be suggested or argued that when the act speaks of facilitation, it refers to the formal administrative facilitation and of course that would be correct, that if 4(c). But we submit that it goes wider and that the Legislature made it absolutely clear that that is not where it stops, its by inserting the same words in sub-section 3(1) which deals with the objectives of the Act.
Thus we submit that the Amnesty Committee in terms of the provisions of the TRC Act, shall facilitate the granting of amnesty and the one we talk about is the one in sub-section 3(1).
CHAIRPERSON: Yes, but how do you bring that in relation to the Amnesty Committee? The objectives of the Commission.
MR VISSER: Because the Amnesty Committee is, per definition in Section 1, part of the Commission for the purposes of certain chapters and this falls within that chapter.
CHAIRPERSON: Not this section 10 and Chapter 6 and 7. There might be another section as well. Section 10, Section 11, chapter 6 and 7.
MR VISSER: You’re quite correct. I’m sorry.
CHAIRPERSON: So does this not relate to the role that the Commission ought to be playing in regard to the work of the Amnesty Committee where they have to, as they did initially, promote this idea to invite people to come forward and to apply for amnesty, to explain the process of the amnesty and all that sort of stuff?
MR VISSER: No Chairperson, then the words "the granting of amnesty" makes no sense.
CHAIRPERSON: Yes, you facilitate as a Commission, you facilitate the granting of amnesty to persons. How do you facilitate that? You can’t grant, the Commission can’t grant it, but it facilitates the granting by assisting the Amnesty Committee in being able to process applications, to motivate people to come forward and that what the Commission did.
MR VISSER: But that’s 4(c) Chairperson. Why would the legislature have included 3(1)?
CHAIRPERSON: Yes, no, my question relates to how the Amnesty Committee fits into this. This seems clearly to refer to the Commission.
CHAIRPERSON: But the only body that can grant Amnesty is the Amnesty Committee.
CHAIRPERSON: Yes, but we can’t facilitate, we can grant. We could facilitate, but in this case it says the Commission must facilitate us granting.
MR VISSER: I hear what you say Chairperson. Yes. Well the submission which we make is that, first of all we just refer to the meaning of facilitate, to make easy, promote and help forward and then we set out why we submit that that should be an objective of the Amnesty Committee. I have heard your argument and I don’t have an answer, I must tell you immediately, but what we say is that it would make perfectly good sense if our argument was accepted, because that would fit in exactly with the purpose as expressed in the post amble of the Constitution and in the objectives of the Act.
CHAIRPERSON: Yes, that is so.
(¼indistinct)
CHAIRPERSON: Is it convenient?
MR VISSER: Yes, it is convenient, but I just want to place on record, I can take that argument no further in the light of what you have put to me, Chairperson.
CHAIRPERSON: We’ll adjourn for 15 minutes.
COMMITTEE ADJOURNS.
ON RESUMPTION
CHAIRPERSON: Mr Visser.
MR VISSER: Thank you, Chairperson. Perhaps I should just reiterate that the reason why I’m addressing you at the moment on what you correctly term general aspects is precisely because of the way in which it has been decided to run the proceedings of the Amnesty Hearings where more than one incident is involved and where we now look forward after this one being the first incident, to a number of other incidents which you’re going to hear, and for the sake of not having to repeat it on each occasion, that’s the reason why we thought of doing it this way. We are slaves of the process unfortunately in that sense.
Chairperson, if we may then turn to page 26 where I deal with the legal requirements for the granting of amnesty, in paragraph 124 and up to 127 we make the simple point that where sub-section 20, sub(1) talks about the requirements of the Act, it’s a reference clearly to former requirements because the other requirements I dealt with elsewhere. As far as the act associated with the political objective is concerned, Chairperson, we say in paragraph 129 that the choice of words is significant. The Act does not require the applicant to have acted with a political objective, that is subjectively, but only that the act, omission or offence must be associated, and we say that’s objectively, with a political objective. The words, in fact, indicate that.
Now that is relevant from the point of view of what we referred you to right in the beginning of the argument, Section 20,sub-section 4 which charges the Amnesty Committee to have regard to the provisions of other criteria and other Acts which have been repealed. The point about this point, Chairperson, is that the Indemnity Act of 1990, I’m sorry, the Further Indemnity Act 151 of 1992 and I’d like to read this to you to make the point, provides, in the caption "and whereas certain persons also advised," well perhaps I should just start one step before. The basic foundation for the Indemnity Act is precisely the same as that of the TRC Act, it deals with reconciliation. That’s the first point and it says, Chairperson, it refers to "recent world events and domestic realities have created opportunities for reconciliation and a joined search for common goals and peaceful solutions in South Africa" and it says, the other circumstance, that "the cause of events has resulted in cruel charges against and the arrest of a number of persons being possible or pending" and it says "for the sake of reconciliation and for the finding of peaceful solutions, it has now become necessary from time to time to grant temporary immunity or permanent indemnity against arrest, prosecution, detention and legal process to such persons." That was the Indemnity Act and then the Further Indemnity Act says "whereas certain persons advised, directed, commanded, ordered or performed" and you will recognise those words Chairperson, "acts with a political object, which acts may result in criminal charges against the arrest of such persons being pending or possible or which acts resulted in the criminal prosecution, conviction and sentence of a number of persons", and I’m going to leave it at that and jump to the definition portion of that Act where it talks of an act with a political object, it says it means "any act or omission, which has been advised, directed, commanded, ordered or performed" and then (a) says "with a view to the achievement of a political object", (b) "for the promotional combating of an object or interest of any organisation, institutional body of a political nature etc." The point here is this, in the Further Indemnity Act the person who asked for indemnity had to show that he had a political objective.
Now interestingly in the TRC Act it is catered for both an objective as well as a subjective requirement. We say, Chairperson, that where the Act speaks of an act, omission or offence which has to be associated with a political objective, it is an objective test, but in 20 sub(3)(a) the Act speaks of the motive of the person, which is clearly subjective. So interestingly in the TRC Act, in regard to the very same consideration namely the political aspect of it, you have an objective as well as a subjective test. That would translate into this, Chairperson, in our respectful submission that even if objectively there appears to be no political objective associated with the Act, sub-section 23(a) can make it so by virtue of what the particular applicant had in mind when he committed the act.
Chairperson we deal with the issue of offence or delict and we refer you in paragraph (¼intervention)
ADV DE JAGER: I agree that the present act is even wider than the Indemnity Act because it defines it as associated with a political objective while the other one required a political motive.
MR VISSER: Precisely, Chairperson, precisely, and it fits in nicely with the objective of what was in the mind of the Legislature when promulgating the Interim Constitution and what Justice Mohammed said in the AZAPO case, that amnesty must be viewed in the widest possible context, and yes, clearly, the present Act in terms of which this Amnesty Committee operates, is wider by far than the three previous Indemnity Acts which I’ve referred to because they all require that the person applying for indemnity or immunity had to show that he had a political objective as the Act says. So yes, the present Act is wider, it gives scope for both an objective as well as a subjective element in regard to the establishment of that question as to whether it was associated with a political objective.
ADV DE JAGER: But not as two separate or as alternatives, the finding of the objective or the objective finding that, or criteria that should be used, the decision whether its objective, whether its associated is clearly objective, but you’ve got this guideline in order to see whether its associated and that includes maybe a subjective test in that regard.
MR VISSER: That is precisely so. You will recall Chairperson, that in the Rapolo Case the guidelines were published by way of Government Notice and Justice van Dijkhorst, quite correctly in my submission, held that those guidelines published as they were, did not have the stature of an act of Parliament and therefore could not bind the discretion of the State President. In the present Act those guidelines, virtually in the same words, are included in the Act and no doubt that was because of the Rapolo Case. Here this Committee is bound by those guidelines. We know that, it doesn’t require argument. But yes, clearly.
To take your question Commissioner de Jager one step further, if the circumstances should show that objectively in the minds of the Committee Members who hear the facts and circumstances, the act or the omission or the offence was clearly objectively associated with a political objective the (¼ indistinct) But what we submit the Act intends doing and should be regarded as having done, is that in a situation where the Committee listening to the facts and circumstances do not see a political objective being associated with the act, then one looks at 20 sub(3) sub(a) and you say let’s hear what the man say, he may have had a political motive, it may not be one that occurs to the objective mind, but that will also then be sufficient to satisfy the requirements of the Act. Yes, the answer is Yes, Commissioner de Jager.
Would you excuse me a moment Chairperson? Chairperson, if I may continue. Ex abundante cautela in paragraph 139, we mention the obvious and that is that if its for personal gain or motivated by ill will etc. then, even if all the other requirements, such an applicant will fail in his Amnesty Application. We then go to the subjective and objective standards where we make a very brief submission about which we’ve already been saying, Chairperson, and in paragraph 142 I attempted there to specify which subsections, in our respectful view, are to be adjudicated upon subjectively and that is (a), (b) and (f), and (f) only partially because it appears to be partially an objective and partially a subjective test. We don’t really have to concern ourselves too much with that.
Chairperson, coming to the specific sections, I did indicate to you earlier when you inquired from me on what sections we rely, we do rely on Section 22(a) but it is not included in these Heads of Argument because we believe that it speaks for itself and there is nothing that we specifically have to draw your attention to. But there are indeed some aspects of sub-section 22(b) which require submissions to be made. We say in paragraph 143 ‘Subsection 22(b) makes special provision for acts, omission or offences committed by members of the Security Forces acting within the scope of their authority and within their authorisation as members of the Security Forces. Thus, in order to satisfy the requirements of the subsection, an applicant must show that he had locus standi at the time when he committed act, omission or offence by satisfying the Committee that he was a member, that he acted in the course or scope of his duties or within the scope of his express or implied authority, and that his acts were directed against a publicly known political organisation or liberation movement. And it had to be the with the object of countering or otherwise resisting the said struggle.
Then Chairperson, we come to a very critical, in my submission, aspect and that is that Section 22(b) as it is worded, contains an inherent paradox. The paradox is this, the notion of acting within the course and scope of your duties and within the boundaries of your authority, conflicts head on with the notion of committing an act or omission which is also offence or a delict. Here we come back to the question which you yourself posed to Brig Schoon. Where did Jan du Preez get the authority from? Where is it stated in his appointment, in his authority, that he can give an order to kill people? The answer is simple, he didn’t have the authority. Then the question is, but how does he fit in? Under 22(b) then would he have been an applicant for amnesty? The answer to the paradox, we say, Chairperson is that we must distinguish between the legal considerations applicable to vicarious liability in civil law as opposed to the situation envisaged by the TRC Act. It is submitted that the phrase "in the course and scope of his/her duties and within the scope of his/her express or implied authority" mean no more than to indicate that a member of the security forces or an employee of the State has locus standi to apply for amnesty for that which was done while he was acting as such." Wat in verband gestaan het met sy dienste.
Chairperson, if I may depart from the hints for a moment, nothing else would make sense. The Act says you may only apply for amnesty in regard to acts, omissions or offences which are offences and delicts, for nothing else. If a man acts within the course and scope of his duties, prima facie he’s acting legally, not unlawfully. So prima facie if that were to be the interpretation to be placed on Section 22(b) it would make it very, very difficult for anyone to show you authority for him to have acted illegally and therefore Section 22(b) may as well have been left off the Statute Book.
ADV DE JAGER: (¼ intervention) with a policeman driving a car negligently the State would be responsible, if he’s driving the car in the scope of his authority, he’s going out to arrest somebody of whatever it may be. So clearly it includes, the phrase includes acts that would be illegal or a delict, but I think we all accept that.
MR VISSER: Chairperson, the answer to the proposition put to me now is multifaceted. The first thing is this. It’s all very well in a case of negligence to advance that argument, but how does that fit in with the purpose of Section 22(b)? It becomes impossible when we deal with offences where intention is an element. There is no way even in vicarious liability in civil law where a master is going to be held responsible for a man who goes and murders someone else even though he may have been in his employ at the time. It could never be argued, and that is why we make the point that we must draw a very clear distinction between the principles applicable and we know of all the cases from England and all the precedents, about vicarious liability. We must be very careful to draw the distinction (¼ intervention)
ADV DE JAGER: Yes but if its not interpreted then no policeman would have been able to and clearly it was the intention that members of the Security Forces should also be granted amnesty.
MR VISSER: That’s precisely my point. I’m trying to make some sense of justifying the argument as to why this should be there and the only justification we can find lies in the fact, as you’ve just pointed out to Mr de Jager, is that if that wasn’t the intention, we don’t know what Section 22(b) would have done there, would be doing there. But the second is that the clear intention was that that which he did, not in his own personal capacity as Jan van der Merwe or whoever, but as a policeman is what is intended to be covered by Section 22(b).
CHAIRPERSON: But you see the difficulty with that submission is that the phrase "within the scope of his/her express or implied authority" is conjunctive. How do you bring that requirement in with you submission that you need simply ask was he acting as a cop, a policeman? If he was acting as a policeman, that’s it, but there is added to that the requirement that he must have had implied or express authority. Isn’t that where your argument falls into some difficulty?
MR VISSER: Chairperson, the argument is in difficulty for another reason and that is that the Act, with all due respect, has been framed in a way which creates difficulties. Here we have one, here we are in the same room and intelligent people may differ from what the meaning is, but the question resolves itself in the end by asking what would the purpose be of inserting Section 22(b) in this Act if it meant that only in cases where policemen, cops, acted within the scope of their authority, in other words, legally, then you wouldn’t have been able to grant him amnesty anyway because the Act is explicit that it has to be an offence or a delict. So I hear what you say and I have difficulty, the same difficulty as you have, Chairperson, but whatever you think the interpretation ought to be under normal circumstances, we have the problem that we’re dealing with amnesty for offences and delicts and here is a section which says that you had to act, I insert legally or lawfully, in terms of your mandate as a policeman. It’s a direct contradiction which is insoluble unless you take the view that as Commission de Jager has stated, that the only reason why it could be there was to cater for the situation where a man as a policeman within the line of his duty committed acts which were offences or delicts because otherwise it makes no sense.
CHAIRPERSON: That seems to be quite obvious that this caters for offences and delicts. So its quite obvious that it is presupposed that there could have been authority to commit illegal acts, to commit delicts. So doesn’t it require from an applicant who wants to rely on subsection (d) to show that he was acting as a cop first of all and secondly that there was some source of authority that authorised him, I mean if a Sergeant decides that somebody is toy-toying in front of his house, its too noisy, so he shoots and he kills somebody, well you know, they were supporters of the ANC and I come from this situation where we are fighting them, so I was acting as a policeman, it was a service pistol that they gave to me and I had a political objective. Isn’t it a requirement that the applicant must show some source of authority, not just that he acted as a policeman, but there must have been some source of authority as these applicants seem to have been attempting to do by saying that Schoon went to du Preez and they seem to suggest that du Preez is the source of this kind of authority.
MR VISSER: But Chairperson, if that were correct then the person, the source of the authority wouldn’t be able to point to anyone else as giving him some sort of authority, in your words, and therefore he would then obviously not fall under 22(b) and that can’t possibly be correct.
CHAIRPERSON: I think we must ignore the phrase "within the scope of his/her express or implied authority" because that seems to be part of the test here, its conjunctive, it says and not or, so that you could possibly have gone past on your argument if it was an or.
MR VISSER: Chairperson, the authority which we speak about is precisely the fact of his authority of being a policeman. In the example which you mentioned to me, clearly that person is not going to obtain amnesty because on those facts it is so clear that he did not act with a political motive when he shot at the people who were toyi-toyiing in front of his home. It doesn’t matter who they supported as a political party. With great respect, the authority must be taken to be that authority which comes with being a member of the security forces because if that is not so what happens to the man who takes the decision? We had Gen Gerhard Erasmus in the Cape with Kondile. You’re going to hear Brig Schoon taking responsibility for taking the decision in Take Five and Pule. If he can’t come to you and say I did that as a policeman, I acted as a policeman within the scope of my authority, well then what must he do, then he can’t obtain amnesty, because the argument would be then you can’t even say that under (f), you can’t even say that you bona fide believed it because we know subjective fact, there wasn’t some regulatory authority or person who gave you the permission to go on.
CHAIRPERSON: But wasn’t your submission earlier that there was this source of authority and you referred us to ex-Minister Vlok’s testimony before us indicating that there is. I don’t understand your submission. It would then be impossible for, be concrete in our case, for Mr du Preez to come and indicate the source of his authority. I don’t understand what the difficulty with that is. There must be some source of authority. You can’t say that simply because you’re a policeman, inherently you have the right to kill people. You obviously, as a policeman, and that is how I understand this kind of application, you’re acting on orders. Coetzee and Mfalapitsa were saying that they were acting on orders from high up and they referred to Schoon, Schoon says yes, well I went up, I spoke to du Preez. What is the difficulty in establishing the source of du Preez’s authority? I can’t understand that.
MR VISSER: Well, du Preez decides on his own, what then? What is his authority other than being an appointed policeman in terms of the Act with the authorities which the act gives.
CHAIRPERSON: Well then it means that on the face of it, there is no basis for amnesty then because there doesn’t seem to be a compliance within the scope of his express or implied authority requirement which seems to be part of this Section (b), because I don’t understand how you isolate in the course and scope of his/her duties and you base your entire argument on that and say that we must simply focus on that part of it. What do we do with the express or implied authority, do we ignore it? Do we say well the situation was such that the police could kill people?
MR VISSER: Chairperson, I never intended to argue to you that it is only authority which could be passed down by persons that would comply with the requirements of Section 22(b), for example, you referred to Vlok. At some stage the buck must stop somewhere. In the next application the buck stops with Brig Schoon. If what you are saying is correct, it means that Brig Schoon can’t rely on subsection 22(b) because he says I considered the situation, I considered that a certain operation should be carried out, I gave the instructions and it was carried out and a person died.
ADV DE JAGER: Mr Visser, I suppose Schoon would say, I got the authority from Vlok. Vlok would say I as a Minister told them. Clearly he didn’t act within the scope of his authority if he would authorise somebody to be killed, so he wouldn’t get amnesty, or he could pass the buck and say I got it from PW Botha and there the buck would stop because PW Botha wouldn’t be able to get amnesty. I think I’ve found the case I referred to the other day, Horn vs Union Government, it’s a CPD case 1931 and its been followed in a number of cases, I can’t give you out of hand the reference of other cases where this "within the scope of your authority" is being dealt with.
CHAIRPERSON: Can I just add there, isn’t that precisely why subsection (f) was included in this legislation? Isn’t it precisely to cater for a situation as my colleague has now sketched where people are passing the buck around? Isn’t it why there is this possibility for an applicant to show us that in all the circumstances that prevailed, in spite of what people say now, some of your earlier submissions that you won’t get a politician who will come out in public and say well I’ve authorised people to be murdered, but it is open for the applicant to show, by referring to all these circumstances that he was reasonable in believing that what he did in fact fell within his authority.
MR VISSER: That is of course so, Chairperson, but I must come back to 22(b) and I must submit to you that the restrictive approach which you follow, makes the insertion of 22(b) nonsensical because we know, and we have constitutional authority for that, that amnesty should be viewed in the widest possible way. It could never have been the intention of the legislature that a man giving an illegal order should not receive amnesty in terms of section 22(b). It couldn’t have been, because if it had been, what stopped the legislature from saying so explicitly?
CHAIRPERSON: No, we don’t have an argument on that.
Its assumed its inherent in all this that there were illegal actions and there must have been illegal authority for those illegal actions, in spite of what politicians and leadership people say at this stage and that’s why we’re not sitting in an ivory tower, we have to approach this thing in a commonsensical manner.
MR VISSER: The best I could do, I believe, in order to attempt to answer your question is let's take the Take Five and Pule matter. Brig Schoon, you know, was the head of Section C. In that sense he has authority to issue orders and to take decisions on matters. Now he takes a decision which is illegal. He doesn’t ask anybody else for permission or for corroboration, whatever, he takes that decision. He says to you I did that, not because I’m Willem Schoon, but because I was a policeman in certain circumstances where I had certain authorities, one of which was not to give illegal orders, but I gave an order and I’m now asking for amnesty for that order in terms of Section 22(b). The proposition, which you put to me, is that he must have had authority, implied or otherwise or direct. Now, if you’re a policeman, does that not give you implied authority? Not to give a legal order, an implied authority to give an order. It gives you express authority, but let’s assume it doesn’t. Let’s assume it only gives you an implied authority for what he did, the mere fact that he was in the position where he was. We would submit to you, Chairperson, that it’s got to be that way. Let me take a last example. What about a foot soldier who, on his own without anyone giving him any order, without him speaking to anyone, Steyn’s case, takes a decision on his own and says I’m going to kill this person. Why must he be excluded from Section 22(b)? He can never say that, I thought I was acting on orders from anyone, because that’s not his evidence. His evidence is, I decided. The same as Brig Schoon but he’s in a different class because he’s in a commanding position, but let’s take Steyn and with all due respect it would be, certainly, it would be contrary to what we submit the spirit and the intent of the amnesty process and certainly of the objects of the TRC Act are, if that kind of restrictive approach had to be adopted.
CHAIRPERSON: The difficulty, a practical one, in the sense that all this presupposes people coming forward, being honest, being open and frank and telling the country what this conflict was all about, particularly leadership figures.
Now we have had examples, take the leader of the Freedom Front, he has come forward and he has said look I’ve done certain things prior to the ‘94 elections, I’ve given certain orders and this is what happened. My people did it and you know that’s the situation. You had some people on the liberation movement side saying that this is our policy, this is what we had done, some things were done wrong but this is what our Cadres did. Then you had leadership figures on the side of the then Government, then State, who had come and who had really just turned their backs in a sense, because that is the view that is expressed by some of their erstwhile state employees, turned their backs on them and said, Look, we’ve never been part of all this. Isn’t all this difficulty arising from this lack of frankness on the part of people who are in a position to come and tell us look, we did actually give these orders, they were illegal, they were wrong morally, but that was the situation. And doesn’t that then cover the difficulty of your operative, in the sense that your operative can then say look, this is what we did because you have heard the leadership giving that testimony.
MR VISSER: Yes, of course we dealt with that issue, as you will remember, today in the terms of the language which was used and how people understood it to be, we dealt with that and I take your point, Chairperson, but you see my problem with a restricted approach is this, that for example the leader of the old National Party says I never knew about all of this, I never gave any such orders, I know nothing about it. I was just wondering whether he wasn’t very clever, or whether he wasn’t well advised because on the restrictive approach in terms of Section 22(b) which you put to me, he wouldn’t have had a hope of getting amnesty, because he wouldn’t be able to rely on 22(f). He wouldn’t have been able to rely on that. It would only be a member of the security forces, so in other words he might have been very well advised not to apply for amnesty, and clearly that can’t be correct. Clearly that can’t be correct. Let’s take Mr F W de Klerk. If one had to think under what portion of Section 20 he would have applied for amnesty if he wished to do so, only Section 22(b). It’s the only one that’s applicable. And if you say to him well, but you’re the man who gave the order, where was your authority, where was your implied authority, what does he say to you? He says, because I was the State President. It’s the same as my people are saying to you now, its because I was a policeman.
CHAIRPERSON: The difficulty, of course, arises as you go higher up the hierarchy. The people lower down in the hierarchy, of course they can always point to some or other source of authority, express or implied, and that is what we are called upon to decide. If your application is in terms of Section 22(b), that is what we have to decide. Now if people up there don’t qualify for amnesty, well so be it. That might be the consequence of the act, I mean if those people must be prosecuted, well, that might be the situation of the act, that might be what this is all about, but it doesn’t really impact on what we are debating at this stage. We are talking of operatives.
MR VISSER: Chairperson, with great respect, it impacts fundamentally on what we’re busy with because some of the people who you are going to hear in this particular Amnesty Hearing, are going to tell you "I’m the one that gave the instruction, nobody else told me to do so". And it impacts on the intention that the legislature had with the TRC Act with the amnesty process. It could never have been their intention to exclude the people right at the top. It couldn’t have been, because I have never read anywhere, anything into any of the provisions of the TRC Act, which excludes the possibility that the State President could apply for amnesty.
CHAIRPERSON: It might be so, Mr Visser. What I’m saying is that we have got an application before us. I know we’re debating general principles. Its helpful, but to an extent. What really matters to us is the situation of these applicants before us. We don’t need to decide here whether F W de Klerk would in principle, theoretically, qualify for amnesty or not. It’s not necessary for us to go into that sort of situation. We want to know insofar as these applicants before us are concerned, if they based their application in terms of Section 22(b), then they’ve got to satisfy us it appears on the face of the legislation, that they were acting within the course and scope of their duties and within the course and scope of their express or implied authority. That seems to be what Section 22(b) requires us to inquire into and it might be that they could argue the alternative, that they had reasonable grounds for a belief that they held at that stage. That’s really what we have to decide at this stage.
MR VISSER: Chairperson, yes, again I agree with you that it is not vitally relevant for us to decide whether Mr de Klerk could obtain amnesty in terms of the provisions of the Act as interpreted by you, but you are going to have to decide that in the case of Pule and Take Five which is coming up before you next and therefore its relevant and if you tell Schoon that he can go home now, he’s not entitled to amnesty because he took the decision, well then so be it, then so be it, but then, Chairperson, a whole number of people have already received amnesty on precisely that ground, in terms of Section 22(b). Erasmus is one of them, Gen Erasmus in the Eastern Cape, who took a decision in the case of Kondile, he’s been granted amnesty for it and that was his evidence, he didn’t have authority from higher up. With great respect, it’s going to be a problem Chairperson on that interpretation.
CHAIRPERSON: Yes, we’ll deal with these things as they come up. What I meant is simply this, in the context of this application, your submission as to what we do with this phrase relating to express or implied authority in subsection 22(b), that’s really what I’m interested in. That’s the submission that I want to consider and what I’m trying to debate with you at this stage, so that’s really what I think we ought to focus on.
MR VISSER: Yes, I think we’ve traversed it and I don’t believe that there is any further help that I can give to you at this stage, without further research. We thank Mr de Jager for pointing us to the case of Horn vs Union Government, we’ll certainly read that Chairperson, maybe something appears from that.
Chairperson as far as Section 22(f) is concerned, at page 31, we say that in order to facilitate the granting of amnesty the legislature made provision in subsection 22(f) with regard to a person mentioned in (a),(b),(c) and (d), that it would be sufficient if he bona fide believed that he was acting within the course and scope of his duties and within the authority when he committed the offence or the act. We say that presupposes a subjective act, bona fide belief, and in paragraph 148 we say, Chairperson, that that subsection is based on the supposition that the person referred to in those other subsections was, in objective fact, not acting within the scope of his duties because if he was, then Cadit Quaestio, but if he was not acting within that scope, then the intention of the lawmaker in this subsection, was to cater for that person who bona fide believed that he was so acting, to obtain amnesty. It goes no further than that, Chairperson.
Chairperson, we deal very briefly with the execution of illegal orders by subordinates and I do so because some of the questions posed during the hearing appear to be directed in that direction. We say the fact that the execution of an order involved the commission of a criminal offence, is irrelevant. In dealing with this question, irrelevant in terms of applying for indemnity, or granting indemnity or amnesty, I should have added. In dealing with this question in regard to the Further Indemnity Act and the guidelines in regard thereto, which I have already referred you to, Justice van Dijkhorst at page 6 – 7 in the Rapolo case said:
"The situation, whether the acts were committed in the execution of an order or with the approval of the ANC, was answered by the Committee with reference to authority, that a private soldier is protected from liability for acts done in obedience to the orders of a superior officer, if the orders are not so manifestly illegal that the soldier must or ought to have known them to be so and if the soldier honestly believes that he is doing his duty in obeying them."
This reasoning, in my respectful view, misses the point. Guideline 7 cannot be read as if it referred to lawful orders only. Most orders by the ANC to its Cadres for cross-border incursions will, in the eyes of our law, be illegal. Had legality been the test, the guidelines would have stated that explicitly. By implication the Committee’s reasoning accepts that the acts were committed in the execution of an order or with the approval of the ANC. If this assumption is correct, they fall squarely within the guidelines.
The point is simply this, Chairperson, that Rorich, for example, is an excellent example, who complied with an illegal act. That can never stand in the way of him being granted amnesty if he complies with the other requirements of the Act.
ADV DE JAGER: You mean an illegal order.
MR VISSER: Yes. The legality of the order is irrelevant for purposes of considering the granting of amnesty or not. We don’t have to deal at this stage, Chairperson, with the International Competence of Amnesty Orders. If any of the applications later that becomes involved, in fact in Pule and Take Five it will become, I will then refer you only to that portion of the written argument which will then go on to, my Attorney says page 39 is what I’m looking for, background evidence of the circumstances of the conflict.
Chairperson this is going to be very brief. We have already referred, at the initial stages of my argument, to these issues, we’re not going to repeat it again. Compliance with the requirements, Chairperson, we’ve made the submissions here about the applicants. If we may then just turn to what is at page 42, this deals with the importance of Botswana in the conflict, which is not entirely relevant, in fact it is entirely irrelevant in the present application and therefore we will also deal with that portion when it becomes relevant in further Amnesty Applications which you will hear in the course of the session.
Chairperson, if I then at last may come to the Cosas Four. My submissions to you, that is not on paper unfortunately, that’s the bad news. The good news is that my submissions are going to be very brief.
Chairperson you have heard the evidence of Mfalapitsa. You have heard the evidence of Jan Coetzee. What, we submit, you can accept on the evidence is that there was a report about four people who were going to advance the struggle in one of two, or in both of those two ways. The first is that they intended to assassinate W/O Nkosi and/or a black councillor, Mr Matsidiso, on the evidence of Coetzee and the second is that they intended leaving the country for military training in order to, as Mr Musi put it, fight against the Apartheid Government. So may I just deal with that issue?
Coetzee couldn’t remember that mention was made to him by Mfalapitsa about the intention to leave the country for military training. Obviously that does not mean that it did not happen, it may mean that Mfalapitsa might not have told Coetzee about that or it may mean that he did but that Coetzee had forgotten about it. The important thing is that all the applicants are at idem that Nkosi was targeted by these people. Mfalapitsa told you that he was under the impression that these people were serious and that they were going to go ahead. You posed the question to one of the witnesses, "but if you just left it, did nothing, they would have not have had the wherewithal to carry our their intention." Well, Chairperson, with great respect, experience tells us that in the times of the struggle many, many attacks took place, other than with firearms, petrol bombs in houses, people died. You have heard the reference to the evidence of Johan van der Merwe, 505 people were regarded as sell-outs, policemen, killed by the necklace method, we know that it was very difficult for the police to operate in townships at night especially because of the effect of keeping the police and the army out of the townships in line with the policies of the ANC.
They, Coetzee and Schoon, told you that in the end, after an attempt was made to dissuade them, which is in fact corroborated by Mfalapitsa, but he says it referred to going for military training, that the dilemma was such that there was no option. I just want to emphasise that its not only Nkosi that was relevant to the decision, Chairperson, what was also relevant was the position and the safety of Mfalapitsa as an Askari informer. And he came and in his evidence he confirmed that. He said he doesn’t know what might have happened to him if his identity had become known and it had become known that he was working for the Security Police. On what we know of the background of the struggle, we know what the probabilities would have been, what would have happened to Mfalapitsa, and it wouldn’t have been pleasant. Chairperson, the question regarding proportionality in this regard, is, wasn’t there something else you could do? Couldn’t you detain them? Couldn’t you charge them? Schoon and Coetzee gave evidence about how they seriously considered alternatives. Obviously detention, there wasn't any form of detention without trial apart from Section 29 which would have been most unhelpful given the circumstances and the facts of this particular case, but the question of prosecuting them presented problems because the moment they were going to be charged with any offence which would have been material enough to justify a reasonably long jail sentence, would have necessitated Mfalapitsa to give evidence. He would have had to go into the witness box to say, at least, these people are conspiring to commit murder, whatever the offences that they wanted to, Section 6 of the Terrorism Act, whatever. He would have been essential as a witness. Once that happened his cover would be blown and his life would be in danger and that is an unfortunate reality of the past. We know that.
Merely planting weapons on them and having them arrested for illegal possession of firearms as we know, in many cases, induced a suspended sentence. There were certainly people sent to jail for that but, not for long periods. The problem which was foreseen is to be taken in the context of the West Rand at the time, Soweto, Krugersdorp, Randfontein where we had, in spite of the denials of Mr Musi, activities by student organisation and the youth which caused great problems, they were very politicised and very militant. At least that Mr Musi agreed to. The question was the solution to the problem from a political perspective, how do you solve this problem and in the meantime also protect lives. Now Brig Schoon has put it in this way. He said that it wasn’t really that it was Nkosi, it was the fact that it was a black policeman. If he had been targeted and if he had been killed, it would have sent a political message and it would not have been good for the security forces. It would have sent a message that would have supported the attainment of the goals of the ANC that policemen had to be eliminated and therefore there is a broader political picture to be found in the process of the decision-making by Willem Schoon and obviously by Brig Jan du Preez because he says he and Coetzee and du Preez were at idem that this was the position. Chairperson, in that sense, one might be tempted to say, well, there were four of them and you wanted to kill all four and you managed to kill three of them. How proportionate was that to the purpose which you wanted to achieve? Well the problem with that is that the purpose ¼(end of tape) to maintain law and order, and in that sense to diffuse the political revolutionary climate. If they had been left, on the evidence of Mfalapitsa, to go out of the country and to come back as trained MK Soldiers, there is no doubt that what they would have done would have been to commit acts of terror. If they had been allowed to just go on without any intervention, on the evidence of Coetzee, on what Mfalapitsa told him in regard to Nkosi and all the black councillors, the consequences which Brig Schoon talks about might well have become a reality, not to say the least of the lives of these people which may have been lost. Chairperson, in that sense and given the conditions as they were at the time, we submit that the conduct of these applicants was entirely proportionate to the objective which they sought to achieve.
CHAIRPERSON: Mr Visser, are you saying that, I’m just trying to ensure that we’ve got your submission, you’re saying that the purpose was to preserve internal security, law and order and to diffuse the political revolutionary climate. That was the purpose of killing these three and trying to kill the fourth one. Yes, and you’re saying that that is proportionate, killing these people, these three youngsters and this fourth one, almost killing him, that is proportionate to these purposes.
MR VISSER: Yes, and I added to that the preservation of the lives of the people that we mentioned.
CHAIRPERSON: Preservation of Nkosi and the other one, the councillor.
MR VISSER: And their families, because it was a question of attacking their homes and also the protection of the life, as well as the identity, of Mfalapitsa. As far as that is concerned, you heard evidence from the applicants, how important they viewed the protection of his identity, not only from the obvious point of view of protecting his life, but from the point of view of the information which he would have been able to give the police coming from where he was, having been an ANC trained person in the USSR himself.
CHAIRPERSON: What threat would there have been to Mfalapitsa’s life if he had simply walked away from this situation?
MR VISSER: If Mfalapitsa had walked away?
CHAIRPERSON: Yes, after this first meeting where he told Musi that he is in a hurry and they had this sort of hurried discussion. What if Mfalapitsa disappeared? Would there have been any threat to his life?
MR VISSER: We would never know because Mfalapitsa unfortunately, all that we know about the situation is what was reported.
CHAIRPERSON: Yes, so in other words the threat to his life arose because of his continued contact and trying to lure these youngsters into getting military training.
MR VISSER: Well, that’s not the evidence, with great respect.
CHAIRPERSON: Where does the threat come from? I don’t understand.
MR VISSER: They asked for him to assist them to go out for military training. It wasn’t, I’m not acting for Mfalapitsa and my learned friend must speak on his behalf, but the evidence as I understood it, was definitely not that he induced them to ask for it, it came from them.
CHAIRPERSON: Now we can debate the merits of the detail of the evidence in a minute, but where does the threat to Mfalapitsa’s life come from?
MR VISSER: At that stage let’s assume there was nothing but he is now an Askari. He, for the reasons which he gave, believed that he had to report this. This was reported. He was then asked to talk them out of it. He came back and he said he couldn’t do so and it was then suggested by Coetzee to Schoon that they should be given weapons and that they should be blown up. That suggestion came from Coetzee. It is difficult for me to answer the question as to what would have happened if he had walked away. They may have attacked Nkosi, for example, and killed him.
CHAIRPERSON: Yes but I want to know Mr Visser, what threat was there to Mfalapitsa’s life that justified killing these four. Just take it step by step.
MR VISSER: Oh at the end.
CHAIRPERSON: No, no, no, lets start at the beginning. Let’s see how your clients could have dealt with the situation. That’s what we really have to do here and decide at the end of the day, is it justified to blow up four untrained, unarmed youths with some vague idea of leaving the country, that’s for me the question. So let’s start from the beginning. The first meeting, what threat was there?
MR VISSER: That’s before he reports it to Coetzee.
CHAIRPERSON: Yes, they have a meeting and they walk away.
MR VISSER: Let’s assume there’s no threat.
CHAIRPERSON: Yes. So there wasn’t a need to kill them after that first meeting.
MR VISSER: No not at that stage. On Mfalapitsa’s evidence they say to him they want to go out for training. Yes, certainly there wouldn’t be a reason for killing them then. On our version though, Mfalapitsa is told that they want to assassinate Nkosi, that’s a different matter.
CHAIRPERSON: Yes I think there we have a dispute of fact again between what your clients were saying and what Mfalapitsa was saying.
MR VISSER: Yes, I know, yes.
CHAIRPERSON: So we’ll have to decide, in terms of the probabilities, in terms of credibility and so on, what is the true version in regard to that.
MR VISSER: Or whether both of them might not be true. It might both have happened. They could both have asked to go out and indicated their intention to assassinate Nkosi and/or the black councillor. But that’s neither here nor there.
CHAIRPERSON: Yes, I want to know where the threat arose.
MR VISSER: The threat arose at the time when, from Coetzee’s and the others’, for whom I appear, point of view, from the time when Mfalapitsa came back and reported and said
These people are serious, they’re in a hurry, they want to do something for the struggle, they’re going to attack Nkosi. That’s where the threat arose. Then, at that stage, assuming they had on our evidence as we understood, assuming they had asked him for firearms, assuming they had asked him to train them and he has conceded that, Mfalapitsa conceded that, he said I will train you in the country. On that assumption he couldn’t now walk away because that would have raised eyebrows. It certainly would have raised eyebrows. But the moment we come to the training itself, that is where we’ve reached the point of no return because then, if anything further had to be done to stop their endeavours, Mfalapitsa would have been involved (¼ intervention)
CHAIRPERSON: On Mfalapitsa’s version that was initiated by your clients, the question of training. That was the idea of your clients. Your clients told him, if you can’t dissuade them then you’ve got to suggest that you’ll train them yourself. So on Mfalapitsa’s version the training initiated from your clients, so on that version, if there was a threat to Mfalapitsa’s life, it was created by the action of your clients.
MR VISSER: No Chairperson, that is really not how we understood the evidence. What he said as we understood it, is exactly what we confessed to having done ourselves and that was that if they then want to be trained and if they want weapons then fine, hand weapons to them and pretend that you’re going to train them and blow them up. That’s an entirely different thing from suggesting that the original idea for training them came from (¼ intervention)
CHAIRPERSON: No, no, no, no, no, oh no, we agree. They wanted to leave the country, on Mfalapitsa’s version, they wanted to leave the country, amongst other things to get military training. No, no they initiated that idea.
But the mechanics of this idea of Mfalapitsa now, even pretending then to train them, on Mfalapitsa’s version, originated from your clients.
MR VISSER: There was no idea to train them that emanated from us, from my clients. They adapted the idea which emanated from them to be trained, to say, use that and at the time when you go and train them, we’ll blow them up.
CHAIRPERSON: We don’t disagree. What I’m saying is that this idea of Mfalapitsa himself, even in pretending to be training them, that is an idea that came from your clients.
ADV DE JAGER: Isn’t the fact that once they’d been committed to go for training, irrevocably siding them on the part of the liberation forces, being trained to come as a soldier, you are now in the opposition camps and because they’re identified as soldiers or potential soldiers of the other side, you decided to kill them.
MR VISSER: Yes, on the aspect of the question of training, you will recall Commissioner de Jager that we also went into that issue in the Silent Valley matter. No it was the (¼ indistinct) matter where ten people from Mamelodi were killed for one reason only, for no other reason, and that was they intended to go out of the country to be trained, for military training. That was the reason, for no other reason, they were ambushed, they were assassinated. We haven’t got their decision on that matter yet Chairperson, but it’s the same principle. We have here four activists who have (¼intervention)
CHAIRPERSON: No, no don’t use the term activists. On what basis are you using that. That’s a very suggestive term, how do you describe these four?
MR VISSER: I’m sorry, four Cosas members.
ADV DE JAGER: Stick to the Act, what does the Act require?
MR VISSER: They have to be supporters of a political movement.
ADV DE JAGER: Members or supporters of the opposition, so to say. That’s what the Act requires in terms of Section 22.
MR VISSER: Yes I didn’t want to pretend that there should be an inference of any kind in the way I referred to them, I wasn’t suggesting anything with that, but the fact is they were committed to the struggle, that much is clear on the evidence. Once that is so, the security police can’t just sit back and do nothing.
CHAIRPERSON: The question is, are they entitled reasonably to kill them? That is the question. Are the security police under those circumstances, do they have as their only option, illegal action? That is the question, really, and for that purpose you have to look at the profile of these four people and that is why I’ve raised this thing of terming them as activists with you, because its important from my perspective to be able to profile them. What sort of threat did they really pose to the internal security and law and order and to what extent did they contribute to the political revolutionary climate in the country and to what extent were they a threat to the lives of Nkosi and the Councillor. I think that’s really the crux of the enquiry, Mr Visser.
MR VISSER: I’m trying to address that Chairperson, but if you’re not inclined to accept that members of Cosas caused huge problems in the internal security of this country, particularly the Soweto, West Rand area, you know about that and if necessary we can give evidence about that, we can bring evidence, I didn’t think it would be necessary.
ADV DE JAGER: Is it really relevant what threat they, what threat did the farmer’s wife offer to the ANC for instance? Is that a criterion in terms of the Act?
MR VISSER: No Chairperson, the only criterion is that they had to be members or supporters of a political organisation and if these applicants tell you, the short answer is, if these applicants tell you, and there is no reason to doubt that what they say is true, that they believe that the purpose of their act was to keep the Government in power, to further the interests of the Government and to do that by stopping the revolutionary onslaught, then Chairperson, that is what the Act is about, then we submit they’re entitled to amnesty.
My attention has just been drawn to the fact that in fact in the Nietverdiendt there has been amnesty granted to Cronje on those facts.
CHAIRPERSON: Mr Visser I’m not quite sure what the value of all these things are that you are referring to, all these other decisions. This question of precedent is something, it is a different question. I don’t want to debate it at this stage. What I wanted to focus your attention on is, you submitted that the purpose of killing them related to these issues that I’ve referred to, which I have quoted from your submission. What I’m asking you is, to what extent on your clients’ case, did these four persons fall within the category of people who were posing this difficulty, this problem, this danger.
MR VISSER: Well, to the extent of what we know, my clients were told they intended doing, they intended, and what Musi himself told you, they wanted to join the struggle. They wanted military training in order to fight Apartheid. How do you do that? By fighting those people who represent it, Apartheid, and to that extent that is what the threat is that they presented. They wanted to kill Nkosi. We’re not concerned that it was Nkosi, we’re concerned about the fact that it was a policeman. They wanted to kill Ntsadisa, is that not his name, not because he was that person but because he was a black councillor and that is part and parcel of the struggle of the ANC during the course of the struggle, Chairperson and that was the threat.
CHAIRPERSON: So are you submitting that you clients acted under these circumstances, they acted justifiably pre-emptively in neutralising, killing, these people. Is that the crux of your submission?
MR VISSER: I’m not saying justifiably in the legal sense of the word.
CHAIRPERSON: In the context of the amnesty provision, they were justified in pre-emptively killing the three and attempting to kill the fourth one, under these circumstances.
MR VISSER: What I’m submitting to you, is that was perfectly proportional to the purpose that they wished to achieve, to kill them.
CHAIRPERSON: Yes, I’ve got the submission.
ADV GCABASHE: Could I just ask Mr Visser to help me with that submission. See my difficulty is this, if that’s your submission, my question is why would the police then not go out and kill many more youths who they knew aspired to go out into exile, join the ANC, join the PAC, they did not go about randomly collecting even those youths they knew about, who they knew wanted to go out of the country.
MR VISSER: But you will recall, Chairperson, that that wasn't our evidence, that was Mfalapitsa’s evidence. What we were faced with was the other situation where these people were now anxious to join the struggle, to do something for the struggle and to attack people here in South Africa. That’s the part that we were faced with.
ADV GCABASHE: Yes, but if I recall very well, there was no dispute from your side that there would have been three meetings with Mfalapitsa. Let’s just start there. At meeting one you get the report that these chaps want to go out of the country.
MR VISSER: We didn’t get that report, not from the evidence.
ADV GCABASHE: No, no, no. What the young people said to Mfalapitsa at that first meeting you will agree was that they wanted to go out of the country. You agree with that, that was the evidence, that is common cause.
MR VISSER: Chairperson, I can’t say it was common cause.
Mfalapitsa gave that evidence, we don’t know anything about that.
ADV GCABASHE: But you were told that. That’s what Mfalapitsa came to report to you, which is why he was asked to dissuade them from going out of the country. That’s my recollection of the evidence.
MR VISSER: Your recollection, with great respect, is incorrect. Its incorrect.
ADV GCABASHE: Fortunately the record will speak for itself Mr Visser but that’s my recollection and its only then that the idea of the internal training took root really and that’s were again the idea of killing them came from. The fact that they would be trained internally and at that very first training session they would be killed. Why I’m asking this is again I’m trying to understand the threat that these people posed in relation to the decision that was taken to eliminate them. How important was it to these young people, and raw as they were in terms of politics and knowing politics, how important was it in relation to the time span, the alternatives that were canvassed, we’ve heard of those from your clients, how important was it to act with such speed? That’s what I’m trying to come to grips with in relation to your submission about law and order, maintenance of law and order, the threat to internal security etc.
MR VISSER: Chairperson, let’s first of all get the evidence straight. At page 3 of Exhibit B you find the evidence of Coetzee. "Mfalapitsa reported to me that he met a certain Zandile Musi" he explained about the brothers, and then he said Musi told Mfalapitsa that he and three others intended to murder a black policeman, W/O Nkosi of Krugersdorp. His request that Mfalapitsa should give them training, weapons and that he should provide them with weapons. That’s evidence of my client. Nothing about leaving the country.
ADV GCABASHE: Yes, but if I recall Mr Visser, isn’t the evidence also that he might have forgotten some of the other things that Mfalapitsa might have told him and that is why he tells us this which is what really struck a chord with him. The other he might have been told but he really cannot recall.
MR VISSER: Yes what struck a chord with him was the fact that these people wanted to murder Nkosi, that’s what struck a chord with him and your question to me is, was that sufficient reason. Well Chairperson, with great respect, we submit yes.
ADV GCABASHE: Anyway Mr Visser there’s also just the factual disputes in relation to the different versions we’ve heard and I think that might help resolve some of the questions that I might have. Thank you.
ADV DE JAGER: Can I just ask you, Adv Gcabashe has referred to the time lapse. Do your clients agree the time lapse that was sketched by Mfalapitsa, that within a matter of days this entire thing was wrapped up and done?
MR VISSER: I understood from the answers to Commissioner Gcabashe's questions that the first meeting took place somewhere in the first week, then we came to the Saturday when the second meeting was and then the third meeting took place when they were trained, Monday, there may have been more meetings for all that I know, I don’t know, we won’t know because Mfalapitsa is the only one that returns. I certainly don’t want to restrict myself to there being one or two, or three or four. There probably were more than three for all that I know, Chairperson. The fact of the matter is on the first occasion, yes, there was assistance asked, what that assistance was there’s some dispute about but certainly there’s no question about the fact that Nkosi was going to be attacked, on the evidence of all the applicants.
CHAIRPERSON: No, no, my point is a different one. I want to just hear whether you have a submission on the time lapse. Now we have the time as, regardless of how many meetings there were, it seems that the first contact was during the week, it could have been any day in the week, we're not sure about that. The second contact was on that Saturday of that same week and the training and the incident was on the Monday immediately following on that Saturday, is that common cause, or what?
MR VISSER: I can’t deny that that is so. Mfalapitsa is the only one that could tell us about that and he is not my client, so its not for me to deny it. The point is, as I understand your question Chairperson, what do we make of that, if anything. What we have from our point of view is that Coetzee speaks to Schoon and he informs him of the threat on the life of Nkosi. Schoon’s reaction to that is, go and talk them out of it, attempt to let them desist from these actions, go and find out what their attitude is. He goes back, he tells Mfalapitsa this. Mfalapitsa has another meeting, presumably, we don’t know. But Mfalapitsa comes back to him, he says to him that they don’t want to listen, paragraph 11 page 4 of Exhibit B was his evidence, they were serious and he kept on repeating that, they were serious, they wanted to go ahead, they wanted do something for the struggle and it is now urgent. The attack appears to be eminent. That’s the impression that Coetzee had that he testified about and which he told Schoon. It is now eminent and that was, from our side, the circumstances and considerations which we took into account.
ADV DE JAGER: From your side there should be four meetings. The first one reporting about the people, then go back, tell them to desist, then coming back, they won’t, then there must have been an arrangement, another meeting to arrange the fatal meeting.
MR VISSER: On a question of logic, yes, that’s why just now when I was asked the question I said I can’t say its common cause, we just don’t know, but on a question of logic what Commissioner de Jager says to you must be correct, there must have been four meetings. I don’t think anything turns on the fact that there were four meetings, but there must have been, but Mfalapitsa only gave evidence about three.
CHAIRPERSON: That’s another thing I wanted to ask you. Do you have any submissions on the acceptance or rejection of Mr Mfalapitsa’s version which conflicts with that of your clients?
MR VISSER: Chairperson you must just look at what those conflicts are. The main, if not the only one, deals with the issue of the Four Cosas members telling Mfalapitsa that they wanted to go out for training. I think, quite correctly, my clients conceded that that could possibly have been said. They can’t very well have denied it. The only thing is either, well two things, did Mfalapitsa convey that information to Coetzee and if so, is it the situation where Coetzee might have forgotten about it?
ADV GCABASHE: Could I ask you there, this is just a question that I’ve wondered about. I know that Mfalapitsa said he hadn’t discussed his application with your client at all, but I’d actually noted that he had submitted his application before your clients submitted theirs and I wondered if they had used his to try and remember the details of this particular incident. You would know, just so that they could try and remember, you know they have been involved in so many incidents. I just want to know, did they maybe, is that part of the problem that this is why there are certain facts they wouldn’t have remembered because he didn’t insert them in that original application. Maybe that’s where some of the problem is.
MR VISSER: Yes, Chairperson, there are two answers to your question. The one is that no, they did not have Mfalapitsa’s application at the time when they filed theirs, before them and my Attorney would know because he did the application, but the second point is that it is not something which these applicants are now suddenly confronted with and therefore the only thing they can say is, I might have forgotten about it. Because there were press reports in which this precise thing had been stated, that there had been suggestions about going out of the country to be trained and Coetzee told you he got information from press reports so they were aware that Mfalapitsa was going to say that, but they told my Attorney, they told me, they really can’t remember it, but they can’t say that Mfalapitsa didn’t tell Coetzee about that. It’s possible. We’re talking about 17 years ago. In honesty it could have been easier for them to saddle the horse and ride it if they knew, at the time when they drew applications, that this was also mentioned. They could easily have, if they wanted to be dishonest about it, but Coetzee can’t remember it.
CHAIRPERSON: Mr Visser are you submitting that we must find that the sketch plan played a role in the decision of your clients to eliminate the four bearing in mind the version of Mr Mfalapitsa about the sketch plan? Indeed Chairperson, it did play a role. In fact Schoon told you that. He said that showed him, it indicated to him how serious these people were and Coetzee told you the same thing. Mfalapitsa is clearly wrong on the probabilities that the sketch plan only came to light on the evening when the explosion took place because on his evidence, with great respect, how the sketch plan came into existence, is a little bit of a deus ex machina. He gave evidence here to you to say that he asked them for a sketch plan to show how serious they were. Now that’s just ridiculous.
CHAIRPERSON: At the insistence of Coetzee?
MR VISSER: Yes, that’s just ridiculous Chairperson.
ADV DE JAGER: Mr Visser according to Musi’s evidence there were three meetings. At the first meeting they suggested that they should go out but Mfalapitsa immediately persuaded them not to go out and told them that they could get internal training. So there wasn’t a report back to the Police and then a further message back on their evidence. What they would have reported to the Police, what Mfalapitsa would have reported to the Coetzee, there were four people, maybe he reported they wanted to go out but I persuaded them already that they should get internal training. So that was without the instruction of Coetzee or whoever, that was on Mfalapitsa’s own evidence, he persuaded them to get internal training.
Then the reason for the next meeting was that Musi would go back to his comrades and ask them whether they would be happy to receive this internal training and they need not go out of the country and at that meeting they decided that there would be the training on the Monday and that on that Monday then the plan must have existed to sort of, because it was already said that they will be picked up, arrangements must have been made then. So on that version the whole plan to kill them was formed immediately after the first meeting, if that version should be accepted. So one the Saturday he informed them, come to this fatal meeting, but at that stage they didn’t even know whether these people would have accepted to go out of the country because that was still in the air, Musi had to go back, find out whether they will, so that’s improbable that the plan could have been planned in such detail as to have a fatal meeting on Monday, when you didn’t even know at that stage whether the other three members would agree to enter training.
MR VISSER: That’s indeed exactly correct and the flaw in the picture is that Nkosi never features on that evidence. That’s the flaw in that evidence, because we know its common cause that in fact Nkosi was targeted.
ADV DE JAGER: Not common cause in the sense of, Mr Musi said Nkosi was never, so its not common cause on that basis. It could be common cause between Mfalapitsa and the other members, but Musi said Nkosi, it never entered the picture.
MR VISSER: Yes, I meant the applicants, I’m sorry I should have said the applicants.
CHAIRPERSON: I’m going to adjourn. We’ll reconvene at 2 o’clock.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Mr Visser.
MR VISSER IN ARGUMENT: (cont)
Thank you, Mr Chairman. Just at the adjournment we were discussing the issue of proportionality and we were exchanging ideas about that. Chairperson, may I attempt to wrap up this issue with the following: First of all, one is of course bound to the evidence in this regard and the inferences which one draws either for or against, must be based on the evidence. Now what the evidence is, is the following: I’m leaving Mr Musi aside. The evidence of Coetzee was that his information was that the youths were intent on assassinating Nkosi. That is what prompted him to talk to Schoon. Schoon gave instructions that they had to be dissuaded, that wasn’t successful and it was then decided that the only way to prevent that from happening together with the accompanying results which such action would have, was to kill the four activists.
On the evidence of Mr Mfalapitsa the first intimation to him was that they wanted to leave the country to receive military training and that he then or later tried to dissuade Mr Musi from doing so by offering him training inside the Republic. The evidence that W/O Nkosi was targeted was denied by Mr Musi. He says they never had such an intention, which of course
was not surprising, bearing in mind the fact that Mr Musi is not
an applicant for amnesty and (b) as a result thereof he could only
implicate himself in criminal activity if he were to have admitted
that they intended to assassinate Mr Nkosi. His answers in this
regard were clearly disingenuous. He was even driven to the
point where he testified that Security Policemen and black
councillors were there friends and assisted them and that there
was a cordial association between him and Nkosi. Flying in the
face as that evidence did of his own evidence that Nkosi was
present when he was brutally tortured, on his own evidence, in
order to disclose the name of the person who either gave the
explosives to them or who trained them or who transported them,
whichever. We would submit Chairperson, that his evidence,
insofar as it conflicts with the evidence of any of the applicants,
ought to be rejected.
CHAIRPERSON: (¼indistinct) were targets elicited from them by Mfalapitsa. Intended targets from them as Mfalapitsa seem to have testified. Coetzee asked him to elicit the information about the intended targets.
MR VISSER: Chairperson, I can’t remember that he said so but even if he did the point is that Mr Coetzee gave evidence that he only knew of Nkosi that was a target already so on that evidence he wouldn’t have elicit targets. That’s the best answer I can give.
CHAIRPERSON: So that’s my recollection of Mfalapitsa’s evidence. We can look at that, its no problem. But assuming that is the case then on your submission we ought to accept the version of Coetzee.
MR VISSER: Yes, Chairperson, in a sense that, and I must be fair here, we are talking about events which occurred 17, 18 years ago. The issue here really is whether Coetzee made a full disclosure and told you the facts as he remembers it. Now that he has done. I’m not going to suggest to you that he is correct in all respects. He himself conceded that there may be issues which he might have forgotten for example the issue of the going outside for training. But, with respect, if one looks at the probabilities, Coetzee must be correct because as Commissioner de Jager has pointed out, on the version of Mfalapitsa, that the persons were intent on going out of the country to receive training, that was never an issue because they were apparently immediately talked out of it through Mr Musi. Apparently on the first occasion, so that was never really a problem in that sense, if those are the true facts, which we don’t know. But in any event Coetzee told you that he never elicited them to identify targets. Frankly Chairperson its neither here nor there whether he did or didn’t. It would have been perfectly in order given the correct circumstances, where no target had been identified for Coetzee to have said to Mfalapitsa, but go and find out whether they intend to kill anybody, there would have been nothing wrong with that, but on the evidence as it stands Coetzee has told you that he didn’t do so because he knew.
ADV DE JAGER: He in fact, if I remember correctly, said that he wanted more certainty about the targets. Could you find out, and that’s what sort of brought about, in the long run the production of the sketch plan, evidence that they in fact wanted to target.
MR VISSER: No, no, the evidence was this Chairperson, the evidence was that he received instructions from Schoon that these people had to be dissuaded and then Mfalapitsa went back and he came back with a report, he was unable to dissuade them and they’re very serious. In fact they’re so serious they already have a plan on which houses are marked for attack. That is how that evidence went. Which of course was mentioned to Schoon as well and that played a role in his decision making and that evidence he also gave.
But Chairperson, if I then may just proceed with the evidence. That is if you accept Coetzee’s evidence, then that’s the one scenario. If you accept Mfalapitsa’s evidence in regard to the training, that’s another scenario which is not necessarily in conflict with the scenario given to you by Coetzee. The question here, still on proportionality, is now, does either of those two bases give a foundation to say that the deed, the act, was proportional to the objective which sought to be obtained. Now in that question we wish you also to bear in mind the evidence of Mr Musi himself. He told you (1) they wanted to leave the country for military training in order to return to South Africa to join the military struggle against Apartheid. That makes perfectly good sense because that’s the reason why all the persons went out of the country, to receive military training, that was their purpose. He wouldn’t concede that he would target members of the security forces when he came back and that’s a blatantly dishonest answer. It has to be.
CHAIRPERSON: No, he said that out of himself but if it was the policy of the organisation that he was to join then of course he would do it.
MR VISSER: Yes I was going to say that he did make that concession. But you will recall that when I asked him the first questions in this regard he blatantly denied that he would have acted against persons, because I asked him about persons and objects, you will recall. But quite correctly, at the end, and I think it was perhaps more being pressurised than anything else he did concede that if that were the policy of the ANC then he would do it, but we know that it was the policy of the ANC, and it was the target selection of the ANC considered to be a so-called legitimate target.
Now Chairperson, on the basis of proportionality if the four activists were assassinated after the first meeting, namely, and I think this is the question that Commissioner Gcabashe and yourself were posing to me earlier, would it then have been proportional given the fact that at that stage, on the evidence of Mfalapitsa the only thing that they did was to profess a desire to go for military training?
Now Chairperson, in spite of what Mr Musi tried to convey to you they were not young children, first of all. Musi was 18 or 19 years old at the time, according to his date of birth, 1958.
Secondly, they were not so politically inactive being members of Cosas, and you will recall how he tried to play down the role of Cosas on the West Rand, where the experience was that Cosas was an active - I am sorry I said '58, 10th of September 1963 - I am just being corrected, but he was 18 years old, Cosas and its members were very militant in those days, Chairperson, perhaps with very good reason.
CHAIRPERSON: Yes, but what was the position in Kagiso?
MR VISSER: Chairperson you heard evidence from Mr Grobbelaar in which he said that there were incidents throughout, virtually daily. He was asked that evidence and he gave it, referring to the West Rand, Soweto and surrounds, as well as Krugersdorp, and that wasn't challenged.
Mr Musi tried to tell you that the only thing that they were concerned with, as members of Cosas, was to establish SRCs. Well that is not correct as we know. The problem was, during the struggle, was what the SRCs did in the view - which was wrong or not acceptable in the eyes of the then government, that was really the crisis.
CHAIRPERSON: But was there an SRC in Kagiso?
MR VISSER: He was here Chairperson, I don't know, I didn't ask him that. He says he was a member of Cosas and a member of the Residents Association. He didn't say he was a member of an SRC but he says they were struggling to establish them.
CHAIRPERSON: That's my impression as well, that this wasn't a well-established Cosas infrastructure that they were having. It looks like they were in the throes of really establishing the Cosas presence in Kagiso.
MR VISSER: Chairperson really, if this Committee is not prepared to accept that Cosas was a militant student organisation of which its members were involved in protest action, boycotts, malicious damage to property and generally inflaming the atmosphere, then I am afraid we are going to have to bring evidence to convince you of it.
CHAIRPERSON: At what stage, at what stage are you - the scenario you are sketching, at what stage is that? We are looking at 1982.
MR VISSER: Well according to the finding of the Amnesty Committee the revolutionary war gained momentum since 1979.
CHAIRPERSON: Yes but Cosas specifically. Well I am not sure to what extent this is really going to help us, but whilst we are on the topic let's try and see if we can't sort it out.
MR VISSER: I have to agree Chairperson with what you are saying, and that is that it really isn't that relevant. What is relevant is that here were four people who wanted to go and undergo military training. It would be incorrect to assume without any evidence to that effect that they were innocent, totally unknowledgable about politics at the time. A black youth of 19 years old at the time of the struggle in 1982 would have to go a long way to convince anyone that he wasn't aware of what was going on around him politically.
CHAIRPERSON: Yes, no I mean that goes without saying. You wouldn't have been living in South Africa ...(intervention)
MR VISSER: Yes that's a ...(intervention)
CHAIRPERSON: ...if you are white.
MR VISSER: Well then we can go to the next step, then we can go to the next step.
CHAIRPERSON: Ja, the difficulty we have is that we have got to place these people at some or other level. You would use the term "activist" when I sort-of tried to raise it with you at that stage.
MR VISSER: Yes.
CHAIRPERSON: So that's really what we are talking about. And you are quite correct, we are focusing on these four people.
MR VISSER: Yes.
CHAIRPERSON: And that is really what we are concerned about, where do we place them? You have used the term "activist". Mfalapitsa had said that he hasn't really shown any interest in their political activities. In fact he knew zero about the three that got killed. He knew something about Musi. Musi's family seem to have been involved in the ANC sort-of structures and so on.
MR VISSER: Yes.
CHAIRPERSON: So that's what we are grappling with. I mean are we dealing with combatants? Are we dealing with people that your clients could have justifiably viewed as part of their political enemy, even their military enemy? You know that's the sort of...
MR VISSER: But that's the point I am coming to right now.
Having professed their intention and desire as they did on either the one or the other basis, made them exactly that. It made them potential combatants and nothing less than that.
CHAIRPERSON: Yes, I think the point that my colleague Advocate Gcabashe made wasn't that the case with thousands of youths in the township at that stage? So you would have a - you would have potentially a whole society, community of black youths who would be liable to get killed by the security forces simply because they show an interest in going into exile. Because I mean it's common knowledge that after 1976 you know this idea of going into exile you know this was rife amongst the youth, the black youth in the township and so on and so on. Were they all targets to be killed?
MR VISSER: Well Chairperson I can't speak for each and every policeman who got involved in each and every one of those situations. All that I can tell you is that the Amnesty Committee has not considered that aspect as a reason not to grant amnesty in precisely those circumstances, and I wish to refer you to this if you would allow me.
In the case of Brigadier Cronje in his amnesty application at page 12 the following transpired, in the words of the Amnesty Committee:
"The applicants testified that a certain Mr Mamasela infiltrated a group of young activists in Mamelodi and in the process of his infiltration Mamasela was informed by this young group that they were interested to go for military training outside the borders of the country. Mamasela relayed this information to Brigadier Cronje who together with Commandant Charl Naude of Special Forces in the South African Defence Force devised a joint plan to prevent the said activists from going to military training".
And the plan was they killed them. What happened is Mamasela offered to take them with a kombi which he professed to be his outside the borders to facilitate their departure from the Republic. They were taken to a place near Nietverdiendt and the Amnesty Committee said this:
"The applicants conceded that they were not aware of what Mamasela might have exactly conveyed to the activists save to state that they had instructed Mamasela not to entice the youngsters, and had emphasised to him that the youngsters had to approach him out of their own accord".
That was the only evidence that was given.
"We have found these alleged instructions to be quite strange and in discord with the information which was available to the applicants at the time. However, notwithstanding our view in this regard we accept that according to the counter-revolutionary strategy, which was in place in the South African Police at the time, the applicants intended to act pre-emptively by preventing, through elimination, any persons intending to undergo military training".
And that would be the answer to Commissioner Gcabashe's question.
"The objective thereof was to prevent trained activists from returning into the country to advance a struggle which was being waged by the liberation movements against the government. The applicants contended that they could not wait for trained terrorists to enter the country and perpetrate acts aimed at overthrowing the government, hence the reason to act pre-emptively".
And then the last sentence at page 13 says this:
"Shocking and gruesome as the killings of the young activists was it is undisputed that they were in the course of the conflict of the past when the security forces went to any length to implement their counter-revolutionary strategy".
Amnesty was granted. That was in the case of the Nietverdiendt Ten.
CHAIRPERSON: Yes, I am sorry to interrupt you, that might be so, I am not sure about the details of that thing. We are debating the proportionality requirement. Did they address that there? I mean that's really our debate now. I want to hear you on what level these four people were and whether killing them would be justified, proportional, in the particular circumstances. That's really the debate. So I don't know whether that helps on the proportionality question.
MR VISSER: The only reference is that the Committee found that on that evidence the requirements of the Act were satisfied, all of them.
CHAIRPERSON: Have they applied their minds to the question of proportionality? If they haven't then of course you know it doesn't help us at all.
MR VISSER: Well Chairperson there is nothing to indicate that they did not apply their minds to it.
CHAIRPERSON: How? They don't seem to be debating the question of proportionality. It seems to be a summary of the evidence and a bold conclusion.
MR VISSER: Yes, well Chairperson I hear what you say. May I refer you to Hechter's decision at page 6 of his amnesty decision. That dealt with the murder of nine KwaNdebele people and here the Amnesty Committee said this
"Hechter contacted the other persons involved and informed them that a number of youths were on the verge of leaving the country for military training. It transpired that during the preceding weeks these youths had gathered around Mamasela, who was parading as an ANC activist at the time. Mamasela in fact gave them limited military training. According to him they were eager to receive training. They would leave the country, receive training and thereafter would return to the country as trained soldiers to continue the struggle".
Exactly the evidence which Mr Musi gave.
"Hechter felt convinced that the only way to prevent this was to eliminate them. Previous efforts to persuade the youths..."
as in this case -
"...not to leave the country for military training and then to return to the country as fully trained and dangerous cadres failed".
In the third paragraph at page 7 -
"The incident falls within the ambit of the Act and that the requirements for the granting of amnesty were met".
says the Amnesty Committee.
CHAIRPERSON: Yes it looks like it is a similar situation. It doesn't help us very much to be referring to all these things which don't really form a precedent for us. I mean we at large, my panel and I, are at large to consider this matter before us in the light of the particular circumstances of this particular and we are debating the question of proportionality. So perhaps you should debate it on the facts before us, the circumstances. Perhaps it doesn't help us very much, we don't know whether in those cases, those intended sort-of people who intended leaving the country had the wherewithal to do so; whether there were clear indications that they would pose a danger and so forth and so on.
So it doesn't help us very much if we don't have those circumstances before us. Perhaps we should then limit ourselves to what we have before us.
MR VISSER: Chairperson, thank you. The submission I wish to make is we cannot close our eyes to the amnesty decisions for many reasons. The obvious one is that there should be fair administrative action between all the applicants who appear before the Amnesty Committee. The one applicant should not feel that if they walk into the doors before one Committee they will receive a different deal than before another. That's one issue.
But you are quite right, let's come down to the facts of this matter. If you look at the Nietverdiendt Ten and the KwaNdebele Nine, and you look at the evidence which the Amnesty Committee used in order to come to the decision that amnesty be granted, here you have, from the horse's mouth, so to speak, Mr Musi who tells you that that's what he was going to do. He was going to receive military training which he was going to apply in the struggle.
CHAIRPERSON: Yes he was trying to do that. Did he have the wherewithal? How realistic was that prospect? Those are the kind of questions, to my mind, that comes in to the enquiry into the proportionality. So you know what we have on the evidence is one person who comes to Mfalapitsa and says look you know I've got three other friends, we would like to go into exile and get military training. He would probably have heard that kind of conversation every day in the townships at that time. Where does it take us?
MR VISSER: Well let us ask that question of the typical member of the security police at the time. What would you have done had you obtained this information, what would you have done? Would you have done nothing? The point is they wouldn't have done nothing because it was their duty to maintain law and order in terms of internal security and to protect the interests of the government and the state.
CHAIRPERSON: Would you have killed them Mr Visser? Would you have killed them if they express that intention? That's the question.
MR VISSER: Chairperson how does the policeman who hears this evidence know how competent or incompetent their threats are? How does he know?
CHAIRPERSON: You investigate and that's why we raised this question about the time lapse with you. Within a week this whole thing is wrapped up and done, three young children killed and another one almost killed. Within a week. Now what sort of enquiry has gone into that one? To what extent have the police applied their minds to the matter? To what extent have they satisfied themselves that they've got the true facts in front of them? Those are the questions that concern us. And it comes into the issue of proportionality, and that's why I raise it with you.
MR VISSER: Yes Chairperson, I must say it's confusing to hear you talk about young children all the time. I have never regarded a person of 18 years old as a young child. And may I say, with respect, Mr Chairperson, that a young child of eight years old with an AK47 in his hands will kill you just as dead as a 50 year-old person. And in fact all over the world armies are made up of persons between the ages of 16 and 24 years-old.
CHAIRPERSON: Yes, yes Mr Visser that's not a very material question. We might see this from totally different backgrounds, but that's the term that I use. We know what the ages are. We know what their situation is. So not very much turns on that. We look at the facts of the matter.
MR VISSER: Well Chairperson here were four people who professed their intention to participate in the armed struggle and the people on the level of the Security Police decided that there was no other way out. They knew they had to protect the lives and property of both Nkosi as well as Mfalapitsa. On the evidence of Mr Musi there was also the issue of the black town councillor, and with respect Mr Chairperson, that goes much, much further than the decisions in the Nietverdiendt Ten and the KwaNdebele Nine. And I respectfully submit that the argument that there were also others who could have been eliminated, takes the matter no further. That wasn't part of the considerations. That wasn't part of what was discussed. What was discussed was the imminent threat and the increase in the revolutionary climate and that is what the evidence before you was ...(intervention)
CHAIRPERSON: Sorry to interrupt you Mr Visser. We haven't raised it in evidence. Is there any indication why they didn't kill Musi, subsequently?
MR VISSER: No that was never investigated. What I attempted to investigate was the position of what happened to Mr Musi viewed from the point of view that he wasn't killed. And that could possibly have given us the answer to some of the questions which have been raised now, because we know from - I started putting it to him that he was convicted of possession of explosive in 1986.
CHAIRPERSON: When he was 22 years old, or 23.
MR VISSER: And who knows what he did with it in the time between 1982 and 1986.
CHAIRPERSON: Yes but if he was such a threat why didn't you guys go and kill him? He was in the hospital, why didn't they go and kill him there?
MR VISSER: Well Chairperson I ...(intervention)
CHAIRPERSON: They had the wherewithal to do it.
MR VISSER: I didn't investigate that. I didn't investigate that with them and that wasn't asked of them. I don't know what the answer would have been.
CHAIRPERSON: Yes.
MR VISSER: Chairperson in my respectful view therefore, if you compare and again I say that one has to compare these matters in order to find some sort of balance. If you compare the conduct of the present applicants and what they did on a basis of proportionality with what has happened in this country, the St James Massacre; the killing of Amy Biehl for example; the Church Street bomb; the Krugersdorp bomb; the Wimpy bar bombs; the Magoo bomb, if the argument is that all of those matters are disproportional well then Chairperson with all due respect then the Act and the Interim Constitution will never succeed in attaining the purpose which it set out to do.
For those reasons which we've debated and which I've submitted to you Chairperson I respectfully submit that in the present case the Act was imminently proportional to the objective which they sought to achieve.
Chairperson I don't believe that there is anything left on the evidence which I still have to address unless there is something which I have missed. Yes, the matter of credibility my attorney just reminds me of, but I believe I have dealt with Mr Musi to some extent as far as it is necessary. I am not saying everything he testified to must be rejected, but certainly he had a reason not to give full and frank evidence, and that reason is to protect himself.
Mr Mfalapitsa, I am very pleased I am not a member of his church to have to listen to him every Sunday, but Mr Mfalapitsa gave the impression, we submit, of a person who was trying to remember and when one looks at evidence of so long ago one would be mistaken to look only at the detail and not take account of the broader picture. And the point here is that there is nothing to indicate that training was not discussed by Mr Musi with Mr Mfalapitsa. That's got to be correct, because in fact I can almost say it's common cause that Mr Musi did talk to Mr Mfalapitsa about training.
ADV DE JAGER: Where do they really differ, the applicants from each other? In what material respects does Mr Mfalapitsa's evidence differ from the evidence of Coetzee?
MR VISSER: Only in one possible respect which I have already mentioned Chairperson, and that is whether or not, and I am not even sure it's a difference, whether or not the intention or the desire by the four Cosas members to go out for training was conveyed to Coetzee or not. It's not really a dispute in the sense that Coetzee simply says he can't remember, it's possible.
And then the second, I don't think it's material Chairperson, but I am not here to think, the other aspect is when the sketch plan was first shown to Mr Mfalapitsa - earlier than or on the day of the incident. It really takes the matter no further Chairperson but I must submit that on the probabilities, as was put by Commissioner de Jager, one must accept that Mfalapitsa is wrong, that it couldn't have been on that evening because otherwise there's no explanation as to how Brigadier Schoon could have known about it. And he remembers that, that it was mentioned.
Chairperson I would ask you to grant amnesty to the three applicants, Schoon, Coetzee and Grobbelaar for the following:
If you turned to Exhibit B, in paragraph 1, I attempted to deal with the various offences or delicts. May I first of all refer to the question of the identity of the three Cosas members, Mr Madikela, Mathabane and Mhlapo. For obvious reasons the applicants for whom I appear have no way of confirming that these were the identities of those persons. We have had this problem before Chairperson and it seems to have resolved itself if the Amnesty Committee in the case as this, would say that amnesty is granted in regard to these three persons and just make some provision to say that if these are not the identities then the three persons involved in this particular incident, then there's no problem. So that any person can say well it went wider than what was intended in these hearings.
CHAIRPERSON: Did Mr Musi identify the three? I can't remember.
MR VISSER: I think he did, yes, I think he did. It's fairly safe in the present case to accept that these were the people.
CHAIRPERSON: Yes, but no I follow your point about the identification.
MR VISSER: Yes, thank you Chairperson. Well if I may, I might fall down trying to translate all the various terms, if I could address you in Afrikaans then.
CHAIRPERSON: Yes.
MR VISSER: The first one Chairperson would be conspiracy to murder and the murder of the three Cosas members.
Two, would be attempted murder or any lesser offence emanating from Zandile Musi's injuries.
Then under (B), transgression of statutory stipulations with regard to illegal handling of explosives and illegal firearms and ammunition.
Purposeful damage to property. That would be with regard to the building on the mine.
Possible benefits with regard to this Chairperson, and then obstruction of justice, because the person did not disclose the true facts.
We then also request for any other offence or delict which was committed by the applicants which emanates from the evidence regarding the incident. The reason why that clause has been inserted is because it is sometimes problematic to profitise or calculate beforehand what the limitations of the amnesty which you would grant could be with regard to this crime which was committed on the 15th of February 1982 at the mine, and where these persons were identified but there should be no problem.
CHAIRPERSON: Is this the mine in Krugersdorp?
MR VISSER: Chairperson I don't recall the name of the mine but I must tell you that I did ask Mr Coetzee. It is a mine between Randfontein and Krugersdorp, if you know that part of the world. If you are driving from Krugersdorp just past the drive-in there is a small mine on the left-hand side. One can see it as one drives past. A small shaft. It has been standing there for a number of years. What exactly it is I am not sure. Some people have said they think it is Luipaardsvlei, but I am not sure about that.
CHAIRPERSON: Would that be between Krugersdorp and Randfontein?
MR VISSER: Yes. I have nothing further to add. Thank you for hearing my heads of argument and for your indulgence. Hopefully next time I present heads of argument to you I shall not be as lengthy.
CHAIRPERSON: Thank you. Ms van der Walt.
MRS VAN DER WALT IN ARGUMENT: Thank you Chairperson. I would like to thank Mr Visser for his heads of argument as well as the documents of heads of argument that he submitted in the sense that I will not have to repeat it.
Then I ask that with regard to the background, as well as the legal aspects, you incorporate this with regard to my client Mr Rorich's argument, if you would.
Regarding Mr Rorich I would like to point out to you that his application differs from the other applications which have been served before you in the aspect that Mr Rorich was not involved regarding the Cosas Four, as they have been named here. He did not know Mr Mfalapitsa at all so he will not know what negotiations took place. He didn't even have the names of the persons. Furthermore he did not know how many people would be there. The order which was conveyed to him by Mr Coetzee, and this was pertinently stated in his application, was that they were activists and that was the word that was used, "activists" who were going to receive military training. He received the order from Mr Coetzee.
Mr Coetzee's evidence is that he approached Mr Rorich because he regarded Mr Rorich as the most competent person to execute this order and also that he trusted him. Questions were posed to Mr Rorich, but not in depth neither to Mr Coetzee or Mr Schoon, with regard to why Mr Rorich's commander was not informed. Mr Rorich admitted clearly that this was the type of operation which had to be executed on a need-to-basis. He regarded this exercise as an order which came from Brigadier Schoon and he accepted that this was an order from the Security head office.
He made a full disclosure to you of exactly what he did at the mine. He planted the explosive device there. He and Mr Coetzee waited at a ruin for Mr Mfalapitsa, who he didn't know, but they were waiting for a person who would come out and say 'everything is ready'. There has also been evidence that Mr Coetzee was in radio contact to ensure that there were no other persons there.
He detonated the explosive device, he left the scene, and furthermore he knows nothing of the background or anything other about these persons.
He did indeed mention that he confirms the political struggle in which the country found itself at that stage and he testified pertinently that within this struggle he believed bona fide that his action was proportional to his duties as a policeman and the execution of his duties as he was authorised to do.
On this point I would like to indicate to you and I would like to argue that Mr Rorich perhaps differs in his application to the others as I have listened to the heads of argument and your questions with regard to Section 22(b). I would like to submit that in his evidence it was clear that he acted under the orders of Coetzee but more under the orders of head office, and it was in that context that he carried out this order. He testified that he knew that it wasn't a legal action because to kill people is not legal, however he maintained that during the struggle of that time he felt, and he believed.
And then I would like to put it to you that as Section 22(f) determines he believed with reasonable grounds that his actions fell within the ambit and course of his duties.
I would like to submit to you that he fulfils the requirements of the Act in terms of Section 21(c) in that he has made a full disclosure of relevant facts. He has even told you that he performed the task; that he does not know why he was selected to do so, but that he was not afraid to do this because he did this within the struggle that the Security Police and the government of the day were involved. He expressed it as such that he did this for his "volk and vaderland".
CHAIRPERSON: That's correct. Now what is his situation with regard to the evidence before us, he said that this was an order which he could have refused to execute and then later he testified that he was not afraid to do so, it was not a situation in which he was given an order to execute mechanically. It was as if he had convinced himself that this was something which had to be done in the name of the "volk".
MS VAN DER WALT: That is correct. I would like to submit to you that under the circumstances if there was an illegal order which was given to any police officer he could have refused. I am sure that any application which appears to you does include the idea of people being able to refuse if they so wished. However, if I might use the word "indoctrination", the indoctrination which prevailed throughout the national government and the situation within which the Security Police found themselves contributed to these policemen believing that they were in a struggle and believing that what they did was right. I am sure that people may refuse if they are given an order to kill, however, they knew what the situation was like in the country. It was a revolutionary onslaught against the former government. And the police were trained, and you will also see in his application that he was a member of the National Party as well as a supporter of the National Party, and he believed.
ADV DE JAGER: In this case he acted clearly as a policeman, the facts that he was a member is not significant. He was picked up in a police vehicle, it was a state vehicle, it was not a National Party vehicle, so I don't think that you would be able to argue that he acted here in his capacity as a member or supporter of the National Party.
MS VAN DER WALT: That is correct. Perhaps I have expressed myself incorrectly. The National Party, at that stage, was the ruling party and what I am trying to convey is that the police in their conduct, and if I may say this, they had to maintain the government of the day and that is why they had to combat this revolutionary struggle which was aimed against the government of the day at all costs.
After he gave the evidence during which he said that he exercised the choice because he did this for his "volk and vaderland", he did this in order to protect the government of the day and to maintain that government. If that answers your question Chairperson.
ADV GCABASHE: Mrs van der Walt just take me back a step. You are saying he acted both as a policeman and as a supporter of the government and its policies. Just go over that again.
MS VAN DER WALT: The government of the day, the National Party, he was in the service of that government and as a policeman he had to invest everything in the struggle to maintain that government. And that is why I say that he acted as a policeman but with the objective of combating the struggle in which the country was involved, because that struggle was aimed against the government of the day. And in his conduct as a policeman he automatically supported the government in order to maintain that government.
ADV GCABASHE: Yes you see because my difficulty again is the same as the Chairman's where he knew that he could have refused to do this particular act and yet he goes out of his way, in a sense, to agree to doing something that he knows very well does not fit in with his normal duties, something that has not been authorised by his immediate commander, something his commander does not even know about. So it says to me this is something that he knew very well was not anything that would directly have anything to do with his duties as a policeman, and that's why I ask you was he acting as a policeman, because my own conclusion is that - I am still thinking this through obviously, he could not have been because he was not even acting within the structures of his own unit. Just help me through that one.
CHAIRPERSON: So in other words is there bona fide, can he then say that he acted in a bona fide manner?
MS VAN DER WALT: I would like to argue that he could have because he believed, and it was conveyed to him that this order came from the Security Police headquarters. It was not as if every division of the police acted separately. There was indeed, according to the evidence, a Security head office that presided over all these divisions of the Security Police and whether his immediate head knew about it or not is not relevant under these circumstances. And that is my argument. Because an illegal act was being committed, this was not part of the normal legal police process during which they would arrest a person. As little as possible people had to know about this because the option which they had there at the mine had to make the police who would investigate the scene of this incident believe that these persons had blown themselves up. One couldn't tell everybody in the police force that they had done it because it was an illegal act and that is why we are here today.
I would like to argue that according to his evidence that he said that he believed, bona fide, that this was part of the execution of his duties regarding the combating of the revolutionary struggle.
ADV GCABASHE: You see I think for instance of the Kondile matter where he was moved from the Eastern Cape through to the Northern Transvaal of the time, the Ermelo district anyway, and Dirk Coetzee made sure that he informed the commander in that area that they were coming to operate there. And this is the way I understood things would normally happen. After all Schoon was a Vlakplaas man and when you go and operate in a different area you at least inform the people that you are going to operate there. And correct me if I am wrong, I would assume that if you are going to use an operative from a particular area you would at least again inform those people in that area that you are going to do that. So an individual who does something that is not authorised, even though it's an illegal order, that's not authorised by his immediate command structure, seems to be out of sync in a sense with what my understanding is of the broad manner in which the Security Branch operatives ....
MS VAN DER WALT: I don't think that there should be a generalisation of what Mr Coetzee has said. I don't know what the background is, but if I understand you correctly they went from one division to another in order to commit certain acts there, and whoever it was that informed them there had to have been a confidante, if I can draw this inference, because once again it was an illegal deed. And once again as the Chairperson has said, we cannot draw a similarity, according to his suggestion, between this case and the other nine persons, but here we have a difference. I would like to put it to you, it is not that there was something that was going to be done in another division. An expert was taken from a division and he was taken specially and that was the evidence of Mr Coetzee. And it was never "aangeval nie" - that they went to fetch Mr Rorich because he was an expert. I don't think it would be correct to place this at Mr Rorich's door as to why his commander was not informed because he received an order from head office, as he believed, from Mr Schoon, through the then Captain Coetzee who was his senior, who went to fetch him in order to execute a task as an expert, not within the division where these three or four persons were. "Ek dink daar is 'n verskil".
ADV GCABASHE: Yes I am actually looking at Rorich's own reaction, what he then did. Never mind what he was told by Mr Coetzee, but how he then reacted and the choices he had at the time, and that's really what I am looking at. He had certain choices and when he took a particular course of action did he really have to do that, one? And was he acting as a policeman as he took that particular course of action? That's really what I was trying to get a bit of clarity on.
MS VAN DER WALT: I think his evidence is very clear in that regard. I think that he was honest towards the Committee by saying that he did have a choice, but that he, as a police officer, regarded it, firstly, and this is clear at the end of his evidence, he said he regarded it as the protection and maintenance of the former government's dispensation and he believed that that action was taken in the execution of his duties.
ADV DE JAGER: Thus a policeman always has a choice, he has a choice to disobey an illegal order. He could say I am not going to do this and that would be correct. He had a choice to disobey a legitimate order and carry the consequences thereof because departmental action could be taken against him. However, nobody was coerced to obey an order. It was never a question of life or death that you had to obey an order. However if you were a member of the force it was your duty to obey a legitimate order. However, all the police officers who were involved in all of these cases had the right to refuse because they were illegitimate orders.
MS VAN DER WALT: That is exactly what my argument was from the beginning. Every single one who has given evidence before the Committee had that choice, however, as history has taught us and the political background and circumstances of that time alleged to these persons regarding themselves as policemen who would make the sacrifice and who would commit the deed because if everybody had to have made the right choice then the other side would have won the war at that stage already, and that is what Mr Rorich has said very clearly to you. It was a war situation and that is why he made that choice. He said that within that war situation I did this for my "volk and vaderland".
CHAIRPERSON: How bona fide was it if he did not even inform his own commander, how bona fide could he have been?
MS VAN DER WALT: He also informed you that this sort of operation, and it was also put to him whether he was involved in other operations and he answered in the affirmative he said that as little as possible people would know about the operation. However he believed that what he was doing came from head office which was the overall command structure of all the different divisions of the Security Branch.
CHAIRPERSON: Wasn't it because he knew that this action was completely outside the ambit of that which the police regarded as acceptable and for that reason he did not tell his own commando. He told us that he decided alone not to tell his commander. Coetzee didn't tell him not to tell his commander. It was his own decision.
MS VAN DER WALT: Well what he said there and directly after that was that as little as possible people had to know. I don't wish to argue - you have said that this was not the normal police process of conduct, it could never have been the normal pattern of conduct because to kill people with explosives, however it was done throughout the country. He was not the first and the only person who did this.
ADV DE JAGER: Do we know whether his commander knew or not? We know that he didn't tell him, he didn't tell him and that is all. But now we have a high-ranking officer from another division who comes to fetch him, at his division in Ermelo, he is away for a day, we don't know whether his commander knew, whether his commander was informed or not. There is no evidence about that, and apparently no action was ever taken against him because he left his duties for a day.
MS VAN DER WALT: Yes that is a fact. What I would like to submit to you as well is that it was never taken up with Brigadier Schoon or Mr Coetzee. Mr Coetzee maintains that he fetched him under the orders of head office. What happened between head office and his division is unknown to us and that is also what Mr Rorich does not know. He acted on an order and he did not inform his commander because he knew that this type of operation had to remain unknown to as many people as possible.
CHAIRPERSON: It doesn't matter who else did what, what the head office did or what they didn't do or whether or not his commander knew, the question of bona fide is about his own state of mind, and the question is, is it not indicative the fact that he didn't personally inform his commander, does this not indicate a state of mind that realised that this was completely unacceptable within the set-up of the police given the fact that many unproportional acts were committed but this one was completely out of bounds.
MS VAN DER WALT: With respect I would like to differ because he testified that he received an order from Mr Coetzee but that he would not simply accept Mr Coetzee's words, he received the order from Mr Coetzee that this came from Mr Schoon and he accepted that this came from head office. And I would like to submit to you that this proves his bona fide because he would not have done this if a warrant officer had told him to do this.
And I want you to incorporate this into his evidence, he would not only accept what Mr Coetzee told him, in his application, and his application is completely separate to the applications of the other applicants, in his application he states that this order came from Mr Coetzee via Mr Schoon, and he testified here that he accepted that this order came from head office.
CHAIRPERSON: That was his evidence but isn't that all the more reason he accepted that there was nothing wrong with the order that he received and that there was nothing wrong with the general set-up of the operation apart from the fact that it was illegal, isn't that all the more reason why he would tell his commander listen I am going with Coetzee, we are going to a place and we are taking explosives and we are going to blow up this place? There was nothing to hide.
MS VAN DER WALT: With respect I have to differ from you because he has stated that what he did was a crime. If he had gone to arrest people at a roadblock I would be able to understand this, but to go and kill people with explosives could never be told to everybody openly because it was a crime, but he acted on the order which he believed came from head office.
CHAIRPERSON: Yes I understand you, he couldn't tell everybody, that wouldn't make any sense, but what about his commander? If he was so convinced that this was an order from head office then everything would be kosher, there would be nothing wrong with that. Why didn't he tell his commander? This was someone from the Security Branch, not someone from the Commercial Branch who would cause trouble.
MS VAN DER WALT: Once again if a police officer received an order of this nature from head office, directly from a captain who was his senior, who came to fetch him, I would like to believe, according to his evidence, that he had to remain silent. Why didn't Mr Coetzee not go to his commander then? That was the objective I would like to submit to you, that as little people as possible had to know, and that is what Mr Rorich believed.
I believe that if I have to follow your argument it does not make sense that as few people as possible were to know if he went to his commander, because head office could just as well have informed his commander. It was the choice of head office to perform this operation according to this line, and that was his order.
CHAIRPERSON: Yes I follow what you are saying but this is separate to the normal situation when colleagues from another office are brought in. Coetzee didn't tell him to tell his commander or not to tell his commander, he simply said to him - "listen Schoon has given me an order to blow up these persons, I want you to help me". And he left it at that. He didn't tell him - "look don't tell anybody, don't even tell your commander". And nobody told him not to do that, and he didn't do it, he didn't tell his commander. So the question originates was he really to be trusted under those circumstances?
MS VAN DER WALT: He also said that that was not the first time that he had been involved in such operations and he knew that when he received such an order he would receive that order and he didn't have anything further to say about it.
CHAIRPERSON: Did you say that that was not the first time that he had received an order as such from another office?
MS VAN DER WALT: He simply said that that was not the first time that he had received such an order. I would not be able to elaborate on that because that was his evidence and I don't want to say what I know, I simply want to say what he testified.
I would also like to add that he did fulfil Section 22(a) and more specifically (b) as well as Section 22(f). Thank you.
CHAIRPERSON: I beg your pardon Ma'am I would just like to ask you the following. Just suppose that the action was disproportionate does that have any effect on the situation of your client? Would he still qualify for amnesty regarding his special circumstances?
MS VAN DER WALT: Yes I omitted that. Should you find that this is not the case with the others who have applied, I would like to submit to you that Mr Rorich's application differs in the respect that for him it was said that these were "activists" who were going to receive military training. He did not know who they were; he did not know how many persons there were; what he realised and what he knew was that these were activists and that activists to him as a Security policeman posed a great danger and he went ahead and executed the operation. Because he was not aware of the background his application differs in that regard.
ADV DE JAGER: Yes, and he was also not the person who had to take the decision to eliminate these persons or not. So he did not have those considerations. He simply acted with regard to the order after the decision had been made.
MS VAN DER WALT: Yes, and that was also his evidence that he did not have any knowledge and that he was also not concerned with the decision-making process.
I would like to submit to you that in his case there should be a different consideration, one that differs from your consideration for the other applicants.
CHAIRPERSON: Thank you Ma'am. Mr Jansen.
MR JANSEN IN ARGUMENT: Thank you Chairperson, members of the Committee.
I will be dealing with all the various requirements of the Act, but with most of them very briefly. My argument will mainly centre around the two issues which I believe may be contentious in Mr Mfalapitsa's application and that is of course firstly, the facts or discrepancies or conflicts of evidence between him and Musi on the one hand, and him and the other applicants on the other hand, specifically Mr Coetzee. That being the factual, the one aspect of my argument.
The other one I will be dealing to some extent with the issue of how to properly deal with the political motive of somebody who finds themselves, or him or herself in the position of an askari. In other words somebody whose political motive is not so immediately apparent at first sight.
ADV DE JAGER: Is it not the fact whether on the evidence whether he proved that he's got locus standi to be an applicant in terms of one of the subsections of subsection 2?
MR JANSEN: Yes.
ADV DE JAGER: Thanks.
MR JANSEN: Sorry, yes Advocate de Jager obviously in the process of going through my argument I will obviously have to deal with the structure of the Act and exactly which are absolute requirements and which are as it were, I am not saying relative requirements, but requirements which are not necessarily a disqualification if they are not met.
I have to start off by just dealing with Section 20(1)(a) the requirements of the Act because there was a problem that was also brought to our attention by the TRC personnel and that relates to his affidavit and the way it was attested to. There was that confusion that it may have been himself attesting to his own affidavit. It was his wife in fact and she is apparently also an ordained minister. So on the face of it, it is valid and there is no other reason to suggest that it's not. In any event it was again subsequently confirmed, on affidavit, and here again orally. So I believe that sub, sub (a) has been met.
Now Mr Chairman if I could then leave sub sub (b) for later because that will be dealing with really the requirements of subsection (2) and subsection (3) and then just deal with the facts which I believe, if it affects Mr Mfalapitsa's application it affects the issue of full disclosure.
Now there are, I mean we've all listened to the evidence and I think we are well aware of the discrepancies. Mr Chairman I just apologise this bench or this desk of mine has a bit of bump in it and it keeps on making this noise. I will try and avoid it.
Firstly I think one must accept that obviously there are in fact three versions and these three versions in certain instances corroborate each other but in other instances they contradict each other. Now one must have a look, with respect, at which contradictions are material and cannot really be explained away, if there are such contradictions. And before one looks at that Mr Chairman, I believe it is extremely important to consider the fact that this incident occurred, the time lapse since the incident and the testimony here more so than one would normally in dealing with evidence in - I mean in a certain sense we all know that as lawyers that when assessing evidence there are certain rules and one of the rules are that one must consider things like a person's failure of memory and some people having better memories than others and we must consider inherent probabilities or improbabilities and the lapse of time, but in these type of cases Mr Chairman the problem is specifically acute. Firstly, because of the extreme long lapse of time ...(intervention)
ADV DE JAGER: (Not talking into the microphone.
MR JANSEN: Yes, precisely. And the other problem, Mr Chairman, is that the people that were involved in the incidents, especially the perpetrators, must at some stage in their life have reached, or fairly shortly, maybe a year or two after this incident, certainly have been of the impression, or certainly of the intent, never to testify about these incidents. They could never have foreseen that at some stage such in-depth enquiry into these facts would occur. It's different at the time of the incident that they know that we might have to be ready with a dekstorie or we might have to prepare ourselves for an death inquest or something to that effect. But after some lapse of time that sort-of making sure that one reminds oneself of the facts must have disappeared. And then to add on to this acuteness of this problem is the further complication Mr Chairman that these people were involved in, most of them, in many incidents over a long period of time, and that makes it a completely different situation as one might say is the situation when one is dealing with evidence relating to a single motor accident or a single murder case that happened two years ago or three years ago. The problem compounds itself so badly, Mr Chairman, that what happens is, and if one has the normal approach of looking at probabilities and what is in one's experience what is acceptable reconstruction of events and simple, let's say, fictitious reconstruction without there being some motive with it, is what happens is what happened in the Harms Commission. There was this sort-of, well again also a battery of lawyers and this intense memory games being played with witnesses and what happens at the end of the day is there are so many discrepancies which to one's normal experience just does not seem to be explicable, but which then at that stage it becomes very easy to say but this is just clear nonsense because contradictions obviously is the one sign that one looks for to see whether somebody is lying. When people are lying they start falling into contradictions. But the problem is we know that there are other reasons for contradictions. I believe that in assessing these kind of incidents one has to be especially acutely aware of this.
Now I know I am dwelling on that to some extent Mr Chairman but I believe that one of the reasons why, for instance something like the Harms Commission or those type of inquiries failed is precisely because they were not aware of the amount of scope that one must actually give in these instances ...(intervention)
CHAIRPERSON: Wasn't it also that some of these people were just lying, they were just misleading this Commission?
MR JANSEN: Yes, yes, certainly, there one had the wall of denial. But if one looks at the Harms Commission the rejection of the evidence implicating the state in these extra-judicial executions was - well there are these wall of denials, it's obviously difficult to reject a denial because it's a simple denial.
Let's look at the positive evidence and the problem was the positive evidence has all these discrepancies and they were serious and they were many, and that's the idea I am trying to get across, is that the approach in the evidence, that sort of caution that one sometimes has, must be - it must almost be a different exercise that you ...(intervention)
CHAIRPERSON: Yes I am not criticising the point that you are making. I am with you on that point. I am just, perhaps I am just expressing a bit of a difference of opinion on the - the Harms Commission is perhaps not the best example that you could have used. But I've got the submission, ja.
MR JANSEN: Now Mr Chairman having said that now let us get to the facts of this case. Coetzee has contact with Mfalapitsa and Mfalapitsa has contact with Musi. Those are the main positions or the main areas to be investigated, those communications between those three people. Any other communications further than that Coetzee had higher up cannot possibly reflect on either Mfalapitsa or Musi because it's double hearsay and it's too far removed.
And again applying a fairly simple rule of hearsay it's difficult to reflect on Musi's credibility on the basis of what Coetzee says. But it's difficult, the converse, being that it's - one should be careful to reflect on Coetzee on the basis of what Musi says. And obviously I am, and Mr Mfalapitsa is the person who has the most problems in that regard because he must, as it were, look at both sides ...(intervention)
ADV DE JAGER: He could be contradicted by both, and the others could only be contradicted by one.
MR JANSEN: Correct, and obviously I foresee that the allegation is going to be made that - well in fact what he did was is he misrepresented to Coetzee what Musi had told him and I will get to that.
Now there are two possibilities when approaching Mr Mfalapitsa's evidence. The one is that the evidence that there was an intended attack or an intended plan to attack Nkosi and Matsidiso is a recent fabrication was made for purposes of his amnesty application for the obvious reason that it fits so nicely and snugly in the proportionality problem. In other words here's one life or two lives at stake, that is proportional to another person's life.
Now that argument, Mr Chairman, can with respect be rejected quite easily, I respectfully submit and almost out of hand, because it cannot be gainsaid that Mfalapitsa was unrepresented and without any contact with his colleagues at the time that he drafted his application. And for all these people to have independently thought up the same lie to fit their little proportionality problems is just not possible. In other words they think of Nkosi ...(intervention)
ADV GCABASHE: Mr Jansen can I just stop you there. But you see one of the difficulties is Mr Coetzee does not recall the Matsidiso matter at all, that Matsidiso was mentioned at all. And Mr Musi states as a certainty in his evidence that he does not even know Mr Matsidiso. So we really have your client talking about Matsidiso.
Then of course there are the contradictions relating to Nkosi, but I really wanted to highlight the Matsidiso matter.
MR JANSEN: Yes, no thank you and I will be dealing with both the issues as far as Matsidiso and the knowledge of either my client or Musi, on the other hand.
But the interesting thing of the versions that were now prepared for purposes of the TRC, Mr Chairman, and what shows at the truthfulness of these versions, in other words the Mfalapitsa version and the Coetzee version is this. There's precisely this discrepancy relating to Matsidiso. It is quite natural for Mr Coetzee to have forgotten the Matsidiso angle or aspect of the evidence because he didn't know, he didn't know Matsidiso, or one assumes that he certainly didn't know him to the extent that he knew his colleague, Mr Nkosi. It's quite natural that his main concern at the time would have been his colleague Nkosi, and that that is what stuck in his mind. But Mr Mfalapitsa again it would appear did not know Mr Nkosi at that stage, but he would remember the Matsidiso part of the evidence because he knew Mr Matsidiso. That would have rung bells and would have generated associations with him because it was a person that he knew as a teacher at a school that he attended and that one assumes he knew was a councillor. So those probabilities that it is a recent fabrication, Mr Chairman, must be rejected. This leaves us then with the second issue to be dealt with, in other words the possibility that Mfalapitsa misrepresented to Coetzee what Musi had told him which is also the explanation which Mr Musi said is his explanation for this discrepancy between them.
Now the first problem with that Mr Chairman is that one would have to accept that Mr Mfalapitsa was a particularly twisted individual to go and misrepresent the information which he had received not knowing what the police may want this information for; not knowing what their intentions may be.
And secondly, Mr Chairman, the presence of Mr Nkosi in that story. How would Mr Mfalapitsa have known which policeman was coincidentally also the policeman doing the inquiries or seems to have been doing the observations of the Musi family's house? There is no evidence even to suggest that he knew Mr Nkosi. There is no evidence to suggest that he was told by anybody in the Musi family about Mr Nkosi. So any possible argument in that regard and where he could possibly have known of the identity of Mr Nkosi in February 1982 is pure conjecture.
And opposed to this problem of trying to impute a lie or a misrepresentation to Mr Mfalapitsa, on the other hand it is a lot easier, with respect, to explain the denial by Mr Musi of this part of the evidence. Mr Musi is, with respect, trying to give his position as a victim a gloss. He is trying to colour what the actual situation was.
Now I would even concede that one must not, if one looks at Musi's evidence in isolation for the moment without comparing it to Mfalapitsa, one mustn't or one cannot really just accept that there is some inherent reason for him to want to gloss over certain parts ...(intervention)
ADV DE JAGER: Mr Jansen why would you say he's colouring the situation?
MR JANSEN: Well Mr Chairman I have thought of a few possibilities and I agree that they are not so obvious that one can point to them and say look, that is clearly why he is lying. It is true and one - but the one of course is just that he's now confronted with the situation where he must admit his involvement in criminal activity where he has not - where he may not want to do so. That is a submission Mr Visser made. But again I accept that that is a general proposition and it's almost comparable to the proposition as to why an accused would lie. And an accused would lie because he's in trouble and he must get out of trouble. But it's not something that one can completely leave out of the picture, because it's a possibility that one must deal with.
The other reason, Mr Chairman, is that he's, with respect, quite well aware of the fact that he's opposing the evidence and the application of Mr Mfalapitsa and he knows, and it's quite simple, what the central, as it were, the central justification or the central part of that evidence in respect of Mr Musi was, that they were planning to attack or assassinate either a policeman or a councillor or both. In other words purely as a way of effectively or an attempt to effectively deny that part of the evidence would assist in achieving the goal of denying amnesty to ...(intervention)
CHAIRPERSON: Mr Jansen when were these victims mentioned for the first time between Mfalapitsa and Musi?
MR JANSEN: Sorry Mr Chairman, when was which victims?
CHAIRPERSON: These two, Nkosi and this councillor, when were they mentioned for the first time between Musi and Mfalapitsa?
MR JANSEN: Yes, let me get to that part of this problem of dealing with the credibility of Musi on the one hand and Mfalapitsa on the other hand and ...(intervention)
CHAIRPERSON: Yes, no, no, don't let me take you out of the - if they are a later part of your submission don't let me take you out of the sort-of stride of things. Carry on where you were and then deal with it when you are at that point. I don't want to take you out.
MR JANSEN: No what I may tell you at this stage is that I believe it to have been at - (long pause)
CHAIRPERSON: We are just thinking of a logistical thing that's affecting our sensitive eyes here. We just wanted to find out whether it is strictly necessary still to have these lights on, but I suppose the video people will tell us. Fortunately this time it's from our back but of course it's in your faces. We normally share it, but in this case it is slightly from the back but it's still affecting us. I don't know whether there is - there is not even - oh I see, okay. (Recording stops)
Sorry Mr Jansen we have interrupted you but that matter will get attention, you carry on.
MR JANSEN: Thank you Mr Chairman. Mr Chairman to answer your question I believe, and I will deal with this in argument, that on the probabilities and as a definite possibility or as one of the probabilities is that the names of Nkosi and them were probably dealt with on the second meeting or then a third meeting if one allows for the possibility of their having been more than just three meetings, possibly another meeting. And let us start with the chronology, and again Mr Chairman if one is looking to reconstruct the chronology in a neat and tidy way, as I dealt with in the beginning one is going to be in trouble and one is going to probably make a mistake. One would have to live with a fair amount of untidiness, and one would have to live with knowing at the outset that there's probably going to be more than one set of probabilities at the end of the day.
(Long pause)
CHAIRPERSON: I am afraid we are not able to discontinue the video recording. We have certain legal obligations in this regard. So it's always a problem, but I suppose it's a price that we will have to pay. We are doing our best to make it not too intrusive. Mr Jansen sorry again.
Yes, I assume you would have a fair bit of argument to go through still?
MR JANSEN: Yes, yes.
CHAIRPERSON: Yes, so when you reach about fourish won't you find a convenient stage and then indicate to me.
MR JANSEN: Now we know Mr Chairman, that Mr Mfalapitsa must have joined Vlakplaas or he must have been placed at Vlakplaas basically in January 1982.
It was after his return and his debriefing and a period of detention in Zeerust.
We know that he had contact with Kagiso, his uncle living there. Now we know Mr Musi mentions a visit which Mr Mfalapitsa paid in essence Mr Musi's mother and the family at some stage. Mr Mfalapitsa on the other hand, that is the first meeting on the Musi version. The first meeting on the Mfalapitsa version is outside his uncle's home. The run-up to the Musi version is simply that Mr Mfalapitsa came around to greet the family. The run-up to the first meeting of the Mfalapitsa version is that there was a message left at the house, if Mr Mfalapitsa is in the area he must please contact Mr Musi. Now I believe that firstly either of the two could be mistaken about the first meeting, exactly how it happened or the versions can be reconciled in the sense that there may have been two such meetings. But I believe it to be unlikely that there was mention of Nkosi and Matsidiso on the first meeting, simply because if it was the first meeting in the Musi version, it was certainly a very social meeting and so on and one would assume, well my logic tells me that surely somebody like Mr Musi being very keen to know what a comrade in arms is doing and how he could possibly join, would have asked him about the possibilities of leaving the country and military involvement in general terms but I don't think they would sort of have jumped into the idea of saying listen we plan to kill two people in the vicinity, can you help us? I just think as a matter of general experience that that would also not even have happened on the Mfalapitsa version at the first meeting.
In other words, there outside the house it probably would have been a curious Mr Musi trying to find out what can be arranged or what possibilities are there of getting involved in the armed struggle in general and so on. And that fits in with Mr Mfalapitsa's version of going to Mr Coetzee and Mr Coetzee saying just try and dissuade them of this notion of going abroad.
CHAIRPERSON: But would he have done just that, on the probabilities would he have just said to him, look go back and dissuade them, or look here, go back and try and dissuade them, if they won't listen we're going to set them up. In other words doesn't it sound a bit improbable that Coetzee would have just said, look go back and dissuade them, now he goes back, he tries to dissuade them, he can't dissuade them and now he walks away, and he then he comes back later and says eh I've got a hit.
MR JANSEN: Mr Chairman you're correct, it's improbable, that part of Coetzee's evidence which says, go back and dissuade them, full stop. That is improbable because that would have introduced another meeting at some stage or another report-back, but again it ties up with what was said in the first place, was it just leaving the country or was there already at the first report a report about the Nkosi and the thing.
But what is quite explicable of that, let's say that something that, that second element of that discussion that Mr Coetzee must have had with Mfalapitsa is, and I believe that's where their memories just differ. If one accepts Mfalapitsa's version for the timebeing, what probably happened at the first occasion was, he went there and he said look I have information of youths wanting to leave the country for military training. Coetzee one would imagine, would think, well what are you telling us, there are youths wanting to leave the country, it's almost meaningless information saying go back, just tell them to leave these plans of military and things but in the context, and maybe I'm talking more of not actually what they were saying but how their thought processes would have worked, if you can come up with specific information, remember that is what your job is, we don't want to be told that the youth is angry and they want to overthrow the apartheid government, we need things with a little bit more specific, if there is specific information which we can use, which shows of their political involvement, you must report that to us.
In other words that they both happened, in other words he said try to dissuade them of this getting involved in the military struggle etc, but see if you can't get any specific kind of information. And just as a general point of view, I mean, one would imagine that they would have said, well you know either get information what they are involved in or what other people are involved in or what's going on in the townships. In other words you are close to these people, they can unwittingly be a source of information to you, you know they don't need to be your registered informers, they can unwittingly be a source of information for you, especially now that they're showing all this interest. For instance just Musi's telling them, he's giving them information of three other people who are involved or interested in politics etc, it may be people that they are now going to - it would be natural to start observing people such as those.
CHAIRPERSON: That's quite right, I mean Coetzee would have been interested because he would have known that Musi's two brothers had left in any event, so this is not like the people who are totally unlinked ...(intervention)
MR JANSEN: Coetzee would specifically have been aware of the Musi family and their involvement. And then what seems to have happened was he went back, Mfalapitsa went back and told them look I can't really arrange going outside, and it could be that Mfalapitsa said something like you know we can train you here or something - I agree one, I don't think that one must make too much of the case that there was a possible suggestion you know - "don't you want to be trained inside", it could be, it could not be, but in the greater scheme of things it's certainly on the proportionality and the severity of the offence, it does reflect a bit on Mfalapitsa if there was sort of like this suggestion, something in the process or in the line of an entrapment, but in the overall scheme of things there must have been discussions which, if one has a look at the evidence here, Mr Chairman, these discussions took place, could not have lasted more than five minutes, and they were in this like little staccato fashion, you know, we can't take you across the border for military training there, but do you want to be trained inside and we can supply weapons etc. That's how people testify 15 years later, those discussions must have been loose, they must have been cordial on this common understanding that you know we are friends and we can be trusted, etc.
One must accept that it is a matter of complete impossibility to try and reconstruct those conversations, and one must not reconstruct them in favour or against any of the persons, that would be I think injudicious and not fair. One must accept that there are various probabilities.
And so this thing progressed and it may be that the suggestion, and that's why I believe that the issue of the sketch-plan is a problem which is a little bit more - because I think one must not exaggerate because it may very well be that at the first meeting, or at the second meeting Mfalapitsa told them listen, or try to elicit from them, do they have any specific plans, and then they mentioned Nkosi and Matsidiso and to ensure that they're just not talking about them in general, and maybe I'm speculating a bit too much and impermissibly so.
But at some stage there was either mention of a sketch plan or one was produced either at that stage, in which case Mfalapitsa is wrong, or then were told to well, produce this plan to make sure that there was some sign that their plans were not just talk but to give an indication of their actual intent. Which could then be that if Coetzee says well there was mention of, that they had a sketch plan, and as I understand Coetzee's evidence, he never saw a sketch plan, it was never handed to Mfalapitsa, it was something that Mfalapitsa had told them that there is, they have a sketch plan, they have a plan with these people's houses on but I would agree that Mfalapitsa may be mistaken, I mean the probabilities are more that he's mistaken as far as that is concerned.
CHAIRPERSON: Yes. Then perhaps you could deal with the specific evidence of Mfalapitsa in regard to the intended targets and a sketch plan, perhaps in a bit more detail so that we have what your submissions are about the version of your client on these issues.
We will adjourn the proceedings until tomorrow morning and we'll reconvene at 9 o'clock. Well it seems that I'm overruled from the Bar in this respect, just to show how accommodating the TRC is, we will adjourn until 9:30 tomorrow morning.
COMMITTEE ADJOURNS
