ON RESUMPTION
CHAIRPERSON: For purposes of the record, today is the Thursday 6th May 1999. It is the continuation of the amnesty application of W F Schoon and others in respect of the Cosas Four matter. We were dealing with the argument and Mr Jansen was still addressing us at the end of the day yesterday.
Mr Jansen, I assume you have further submissions?
MR JANSEN IN ARGUMENT: (cont)
Yes, thank you Mr Chair.
Mr Chair, Members of the Committee, I was busy with the central body of facts in this matter and in trying to unravel the discrepancies and the different versions of mainly Mr Musi, Mr Mfalapitsa and Mr Coetzee yesterday and I was also requested to address myself specifically to the issue of the sketch plan and other detail. Now if I recall correctly, I was busy dealing with the one probability that there was at the first report by Mfalapitsa to Coetzee the return instructions probably contained more than just a request or an order to attempt to dissuade these students. It probably would seem to have contained something to the effect of ordering Mr Mfalapitsa to see if there were more specific information in respect of the activities. Now it is also so that Mr Mfalapitsa testified and to some extent and I have difficulty in recollecting his exact words that it was that whole debate as to where the suggestion came from as to the training of weapons inside the country, whether it was a suggestion by Coetzee or whether it was a suggestion made by Mfalapitsa to the students or whether it was Mr Musi and his friends or whether it was a suggestion that Mr Musi and his friends made and it did appear from the one statement although earlier on he said Mr Coetzee and Mr - sorry I must just place the context correct - initially in Mr Mfalapitsa's evidence, the impression I got was that he said Coetzee told him to see whether they have any specific plans or any specific information that he can gain from it, but later on he did say something to the effect of Coetzee saying something to the effect "see whether they would want to get weapons training". Now it's difficult again to distinguish, there are possibilities both ways, one can say that is maybe an independent recollection that Mr Mfalapitsa has of the time, in other words that something like that was in fact said by Coetzee but it could in fact just as well be something that Mr Mfalapitsa had understood the order to be, in other words that part of the enquiry into specific activities would be to see if they wanted weapons training. It could also have been that part of the discussion although not in these specific words was to see, look for something or try and establish whether their intentions of receiving military training is actually serious, that it's more than just talk and then that at a later stage that is interpreted or related as an instruction specifically to see whether they want weapons training.
But I'm really at the moment arguing facts which are, I believe, at the worst for Mr Mfalapitsa and Mr Coetzee. I believe it is evenly as possible that that suggestion could have come from, initially, from Mr Musi Mr Mfalapitsa and that Mr Coetzee then later on said "well see whether they are now requesting this training, see whether they are serious about it, suggest a date and a time and weapons" etc. etc. But one is really, with respect, involved in I think in trying to reconstruct almost the impossible. But even in taking it at the worst, in other words that there was a suggestion, I believe in the time frame and together with that one may say well, it certainly adds a more serious element to the facts that there was something in the nature of an enticement or at least a suggestion, ...(intervention)
ADV GCABASHE: Sorry, can you just - I was going to ask you to clarify? An enticement from Mfalapitsa to Musi or extending the enticement to Coetzee? I'm not sure, you're talking very generally, very broadly and it will just help if you're saying he might have made certain suggestions off his own bat or he might have brought over, carried over instructions from Coetzee. I'm not sure how far in fact you're going with enticement?
MR JANSEN: Yes, well let's take the various different options. Let's say the initial instruction came from Coetzee, then I think it's neutral as far as far as Mfalapitsa is concerned because then it doesn't effect him, with respect, he's just carrying out his instruction. If it is something where Mr Mfalapitsa may have gone a little further what may have been the original instruction again, or that he's made himself party to this enticement instead of as it were walking away, I believe one must have a look at it in that time frame and it's easy for somebody maybe to forget that part of the evidence because I think at that stage, people on both sides were in a lot more of a fighting mood than they are today and in reconstructing their evidence, such behaviour might certainly not sort of fit into what they regard as what was a logical or what they probably did or would have done.
ADV DE JAGER: Mr Jansen, I think we must or we could accept that at least it's common cause that there was a dissuasion from going out of the country for training.
MR JANSEN: Yes.
ADV DE JAGER: If that was so, if Mfalapitsa said "no, don't go out of the country" they wanted to go out for training, it seems to be a logical thing that well, if we don't go out for training what then? And it could either be "could you offer us training?" or he could have said "well, I'll offer you training". But it's also common cause that there was an offer for training inside the country. So the only thing we're sort of not sure of, who took the initiative to say, "well train me inside the country or I'll train you inside the country" but it's common cause that happened.
MR JANSEN: Yes. Yes and Mr Chairman at the end of the day whatever one's finding one way or the other is concerned, that effects only to some extent the issues in Section 20 Sub 3 which are things that must be weighed in the balance. I don't think because of these contradictions one can now say that it reflects so - these contradictions I'm dealing with at the moment, the details of those conversations, that it reflects so seriously on at least Mr Mfalapitsa's credibility that he must - that it can be said that his version is dishonest, that can never be, with respect, and I think in any event, I think to some extent I can't really take that part of the detail further than saying that one can consider a whole range of possibilities and probabilities but at the end of the day none of them materially will effect either the issue of full disclosure or the outcome of this balancing process of dealing with all those issues raised in Section 20, Sub 3. And in fact, to the extent that these issues are common cause, in other words that there was firstly a request for training outside the country, that that was said not possible and that there would then be training inside the country. At least what it shows is the following, if Coetzee and Mfalapitsa and the police simply took the following position, well here are youths like many other thousands of youths that want to go and receive training abroad and this itself is the basis for us wanting to eliminate them. They could easily have said well, Mr Mfalapitsa, what you do is, tell them that you've arranged for their travelling to Botswana and we will eliminate them on the way. Which, Mr Chairman, subject to not knowing the full details of the facts of the Mamelodi group of youths and the Nietverdiendt group of youths in that of the Brigadier Jack Cronje amnesty applications, what I understand to have been more or less the facts, that just the information that they wanted to receive military training set off a chain of events which led too them being, as it were, led to a certain place where they were assassinated. But what's clear from this set of facts is that that information itself was not enough, something did go back and there was something additional that happened, so at least at sort of arguing a worst case scenario, at least there was an instruction as "well just see if they're serious about wanting to receive weapons training and suggest it to them." But it could very well be the other way around, in other words Mfalapitsa going to Mr Musi and saying, "well, you know we can't take you across the borders, you know, but are there any other specific plans that you have and could we assist you in this regard?" and that the discussions then took that route.
ADV GCABASHE: Of course, Mr Jansen, it's also possible on the evidence that we have heard that Mr Coetzee wanted to be sure that Mr Mfalapitsa was bringing a report that had substance, I mean that's another interpretation. He was new on the job, this was his first report since his debriefing and they just wanted to be sure that what he was saying to them were indeed facts that they could start thinking about just on last aspect we've just dealt with.
MR JANSEN: Yes, true, it's in other words to verify but that in a certain sense is a double bladed sword. I'm not so sure in my mind whether it only relates to the fact whether they may have been apprehensive about Mr Mfalapitsa's - it could just as well have been that they at least wanted to make sure that the youths that they are dealing with are not just youths expressing some general motion of leaving the country. But I accept that, that that is also one of the possibilities and the probabilities and it all comes back at the end of the day to that one final question what is your approach going to be when dealing with disputes of fact and as I said yesterday, it would be wrong to say well there's many dispute of facts and therefore somewhere we must now find the liar because you may very well make an incorrect finding if one adopts that type of approach, with respect.
As far as the sketch plan again is concerned, again think of the following possibility, assuming that there was at least a plan. I mean there wouldn't be a sketch plan if there wasn't a plan itself. Now the plan is relayed orally to Mfalapitsa by Musi. Now different options can happen, Mfalapitsa can say well, to make sure that he can prove this or show that these plans are actual to Mr Coetzee and them, he can tell Musi and them but listen then, make a plan, you know, show, you know, draw a sketch plan of their houses etc., you know, one doesn't embark on an operation like this without a sketch plan. Or it could be that Musi had said, look these are our plans, we've got a sketch plan. But the point is it seems to have been orally relayed, on the assumption that there was a plan. There was some - it was relayed orally that there was a sketch plan and that was relayed to Coetzee and that they brought the sketch plan on the last occasion. It may also be that they created the sketch plan for purposes of that next meeting.
CHAIRPERSON: Isn't that the more probable interpretation of that? Wouldn't they ...(intervention)
MR JANSEN: Yes it accords with - sorry, yes it accords with Mfalapitsa's recollection, certainly.
CHAIRPERSON: Yes because they would have been acquainted with the area, they lived there, they would know where Nkosi stays, it just seems improbable that they would have needed a sketch plan, you know, to have planned to attack these people just out of their own, they would have been sitting down and preparing a sketch plan and say look, you stand here and I stand here and so on. It just doesn't seem to accord with the probabilities. It seems to be more probable that at Mfalapitsa's suggestion, they would have gone and prepared a sketch plan because he might have said look, if you want to do this sort of thing you need some sophistication, you need to plan properly and so on.
MR JANSEN: And I think the problem also here is, Mr Chairman, that one is obviously dealing with young people with a lot of enthusiasm for being involved in the struggle and doing something and even this slightest amount of suggestion may have triggered a whole lot of activity on their side, in other words Musi had gone back to his friends and said you know, we can get involved in the struggle but you know, they want specific information as to what are we up to, you know, we don't have plans, we must now - let's quickly make plans and then make it appear as if they're all ready for the big fight.
ADV DE JAGER: I think we're - I'm taking speculation too because I was thinking at the moment maybe they thought well, here we've got a trained MK, he's involved in the struggle, he's still with them, let's show him - maybe he'll take us with him and we could destruct the targets. But there's no evidence about it, but I think I should refrain, we all should try to perhaps refrain from speculation because there's such a variety of possibilities one could in the end, end up sort of misleading yourself.
CHAIRPERSON: The other question is, I mean is there any basis for rejecting Mfalapitsa's version that he actually made that suggestion?
MR JANSEN: No, in fact my final submission on the facts are that there is, despite the differences, there is no basis on which you can reject Mfalapitsa's evidence. There is a basis with which you can say that there may be other possibilities but certainly no basis to reject and I say that in general, of all these other differences where as Advocate de Jager has
pointed out and I think the problem is that there is this fine line between assessing probabilities and becoming embroiled in conjecture. Somewhere - and if one has so little reliable memories, so little objective facts to use as beacons, that line becomes very difficult and I don't know where does one stop dealing with probabilities and how far does one allow oneself to conjecture. But even the central dispute which I obviously must concede is difficult to say is loss of memory and that is Musi's allegation that there was no plan, because he wasn't mentioned and Matsidiso wasn't mentioned. Even as far as that central or that dispute is concerned, there is no basis to reject Mfalapitsa's version and my submission is this, in these proceedings you are not dealing with an onus as such.
Onus as we know it in civil proceedings, Mr Chairman, is really at the end of the day just a deadlock breaking mechanism, saying there are different versions that is difficult to reconcile or we can't decide which version is true, therefore we look at the rules of onus, which way does the case go. You are not dealing with that, certainly nothing that strict. Again you will assess evidence, assess probabilities etc., but I believe, with respect, at the end of the day where you are dealing here with an amnesty application where the focus is on the applicant, you must accept his version and if there's some solid basis of rejecting an applicant's version, then certainly a version must be rejected but when there's no basis to reject a version then one must accept that while the version is there and it stands and the version itself makes out a case for amnesty and the problem with - or my submissions why Musi's evidence cannot form a basis of rejecting Mfalapitsa's evidence is one, the one central puzzle or the one piece of puzzle that doesn't fit into Mr Musi's version is assuming that the question is asked well why would Mr - or how would Mr Mfalapitsa in 1982 come up with a name Nkosi when reporting to Mr Coetzee, coincidentally being the person most probably that Mr Musi would have ill feelings towards?
ADV GCABASHE: Mr Jansen, you do recall I actually asked if other Black policemen had been to his house and he said yes, Black, White policemen so I'm not sure what you base the particular emphasis on Nkosi from you know, any feeling of animosity towards Nkosi because a lot of policemen went through their house and Musi's evidence was he had no ill feeling against any of them, it was something they were just used to?
MR JANSEN: Well, if Musi had no ill feelings towards Nkosi, where would Mfalapitsa have come up with a name of Nkosi to mention to Mr Coetzee and I believe the point here is that there's an inherent possibility or an inherent probability that if somebody were to be the target of Musi, it would have been somebody like Nkosi at the very least, one of the policemen who had been there regularly. But it's clear that even today he remembers Mr Nkosi quite well.
The other submission in respect of - and I'm not saying that as a possibility one could say that, you know, maybe the Musi version is correct, I'm just trying to say that why the Musi version is not a basis for rejecting Mfalapitsa's version where there are two conflicting versions and there's no objective corroboration for the one or the other.
Look at the general credibility of Musi. Let's assume in Mr Musi's favour, that he was just an ordinary member of Cosas, not really or that there wasn't all that much Cosas activities and that the climate in Kagiso wasn't as heated up as he would say, let's assume all of those things to be true for the moment and I must emphasise that I find it extremely difficult to believe.
The one thing that one cannot accept is his evidence in respect of Nkosi, that he harbours no ill feelings towards Nkosi when Nkosi was present when he was being tortured. Now that starts a little bit of a domino effect, that places a clear question mark over that evidence.
ADV GCABASHE: Yes, but he wasn't tortured by Nkosi, Nkosi might have been there but Nkosi didn't torture him, that was the evidence?
MR JANSEN: Yes, no I accept that but what I'm saying is that he says he had no ill feelings towards Nkosi. I cannot accept that, unless one now has to accept well, he wouldn't necessarily have had ill feelings towards a policeman who may not himself have taken part in the torture but to just - just sat there on the side. I find that difficult, I don't think one can accept that.
ADV GCABASHE: I'm sorry, just help me through this Mr Jansen. Are you saying that the fact that Nkosi did not assist him in any way would have caused these feelings of animosity, that's during the interrogation, much as he did - just help me understand why - where the ill feeling would come from and why, what the expectation of Nkosi might have been at that stage?
MR JANSEN: Well the point is, I certainly believe at very best Mr Musi's attitude towards Mr Nkosi at that stage would have been that he's a policeman that I have absolutely no respect for. But that's not the impression that he tries to create in his evidence and once there's question marks about that, then there becomes question marks about his general evidence about Kagiso and Cosas and the residents associations etc and what the activities were and what the approach or what their attitude towards councillors and policemen were because obviously the argument that I'm presenting is that some room must be given for the fact that Mr Musi is glossing over that part and the way he does so is by denying that there is animosity. The easy answer for him and the natural answer and the logical answer would have been for him to say "I did not like Mr Nkosi and yes, policemen were seen as the enemies but that doesn't mean that I'm going to make a plan to kill him."
CHAIRPERSON: Yes, but in any case Mr Jansen, the torture, didn't that happen after he was taken in by the police and when they wanted to break him on this story of the person that gave him the lift, so in other words all of that torture happened after this incident, it couldn't really have been the cause of animosity prior to the incident?
MR VISSER: No, certainly, it couldn't have been the cause of animosity prior to it but at least, you know, one would have expected Mr Musi to have said, you know, we have a good relationship up to a certain point, then this happened.
ADV DE JAGER: It even goes further because I've asked him, you wanted training, would you come back when you are trained, what would you do with your training, would you kill for instance Mr Nkosi? And then he said no, I've got no ill feeling towards Mr Nkosi.
MR JANSEN: And as I conceded yesterday, it's difficult to speculate as to why Mr Musi is denying that aspect, you know. And with respect, in any judicial proceedings, the main test is not to ask questions why somebody is lying because those are very dangerous. To find a motive for lying at the end of the day or being untruthful is part of the process of looking at a version and it's probabilities or improbabilities but at the final instance, it is to look at the content of the evidence and to say but this evidence itself, even though we haven't established a motive for lying, the evidence itself is unsatisfactory and my submission is that that evidence is unsatisfactory. I believe that there are enough pointers to show that the general tenor of his evidence is firstly improbable and that it does seem that his approach to his evidence seems to have been to deny any existence of these plans or any involvement in his more serious allegations relating to for something that may not be any more than just the impression that it may create a bad reflection on him himself or that it may create the impression that him being targeted as a victim was possibly justified. Again, one is speculating as to his motives but the fact of the matter is that the content of the evidence is suspect.
CHAIRPERSON: Now can I repeat the question that I raised earlier with you? This identification of the targets, Nkosi and the councillor, what is your submission, was that done pursuant to Mfalapitsa eliciting that information from Musi? Musi didn't volunteer, in other words did Musi volunteer that information or did Mfalapitsa elicit that from him?
MR JANSEN: Well again, I'm quite happy for purposes of argument to accept one of the various range of possibilities. The one being that Mr Mfalapitsa told them, listen, if you want to be involved in something you must come up with some specific plan, you can't just talk about fighting, you must come with a specific plan and that that suggestion then triggers the creation of plans which did not previously exist. That is so and which is unfortunate and is then later interpreted as being plans that may now have been in existence and that subjective may have been almost harmless, but because of this process of having contact with people trying to elicit information, in circumstances where there was or at least the eliciting of information had to take place in this apparent relationship of trust. In other words, Mfalapitsa still had to create the impression that he's a member of uMkhonto weSizwe and yes, that that - I can well foresee that that is a real possibility and I'm quite prepared to argue the application on that basis.
Just again I'm saying there are other versions that are possible, that there were plans. There may have been sort of germinating plans or they actually have been actual plans, one does not know.
CHAIRPERSON: And can we accept on the facts that at the first meeting between Musi and Mfalapitsa, there was no question of targets, the only question was leaving the country to undergo military training?
MR JANSEN: Certainly as far as Mr Mfalapitsa's application is concerned, I'm quite happy that you accept that but you would have to accept that at a later meeting there was mention of Nkosi and Matsidiso.
And then just this one final submission that I want to make on the facts and it relates to the evidence that Mr Mfalapitsa gave in respect of his motive and his position as an Askari. He had no difficulty in coming to this hearing and saying "because I was a supporter of Apartheid, I was not really an enemy of the ANC, just understand my predicament, my objective predicament. You know, to a large extent everything I did was for self-preservation. I actually wanted to not have anything to do with the fighting, but I couldn't and I understand why not." But if he has no problem with being so forthright with that part of his evidence, which opens him up to all kinds of criticisms about yes, what was your motive and who was the enemy etc. etc., why would he have difficulty in saying "you know, in 1982 my position was so precarious I had to bring some information to my bosses which would establish my credibility to them, so what I had to do was, I had to coax a bit, you know, I had to elicit information and plans from these students" and the inherent improbability, Mr Chairman, if that would be the case, that they would go around, either Coetzee or Mfalapitsa and them, would go around targeting students that merely wanted to receive training abroad or showed a willingness to receive training here. We probably would have had a lot more of these kind of incidents because it probably would have been a fairly easy thing to do to interact students in those days under these circumstances and I think what happened here was, was a set of events was triggered by the fact that Mfalapitsa knew the Musi family and had contact with them and one thing led to the other and eventually ended in the death of the three victims and the injury of Mr Musi and I really want to leave the factual submissions at that Mr Chairman and maybe just summarise by saying that I do not believe that there is any basis for a finding that Mr Mfalapitsa has not given a full disclosure.
ADV GCABASHE: Mr Jansen, before you conclude on that aspect, Mr Matsidiso, what do you want us to accept as the more realistic version? Is it Musi not knowing Matsidiso or the fact that Matsidiso was mentioned with Nkosi as testified by Mr Mfalapitsa?
MR JANSEN: I would have to ask you of course to accept that there was mention of Matsidiso, the alternative would be that Mr Mfalapitsa at some stage reconstructed the name of Matsidiso maybe confusing him with another councillor or someone at the time of drafting his application or at some stage his mind must have - but I would imagine one cannot really take that further than saying but then a least there must have been mention of some kind of councillor and that's why I really believe that you have to find that - maybe I can put it this way, you must find that you cannot reject, on the evidence before you, you cannot reject Mfalapitsa's version. I think that would be the proper approach. Now ...(intervention)
CHAIRPERSON: I'm sorry Mr Jansen, just on the factual stuff, I forgot to ask Mr Visser this, have you got instructions as to when Cosas was formed or founded?
MR JANSEN: No Mr Chairman, I don't and I don't know whether it was part historically of the African National Congress or whether it was something that started in 1976 but I certainly believe whatever it's history is, the Cosas in 1982 would probably have been the Cosas as it developed and became an alternative structure or structure inside the country. It's character and it's leaders and things must have been moulded in that whole period from 1976 and further on and it remains, I mean what I think we all know, it remains today still the student body formerly aligned with the ANC. In other words, there's no student, there's not a student branch of the ANC at campuses, at university campuses, they have Cosas. Cosas is in effect the ANC branches at universities.
ADV GCABASHE: That's factually incorrect, but it's neither here nor there.
MR JANSEN: I accept, that that's how I understood it to be, I just know that from clients that I have in Cosas, the identity is very close, yes, but I will certainly accept that you know better, Advocate Gcabashe.
Yes, if I may then step to Section 20, Sub (b), which then again really is a reference to Section 20, Sub (ii) and Sub (iii) and the other requirements that one looks at in either giving the approval to be or disapproval. Now just to go back to the general approach to amnesty, in international law and in most truth processes there seems always to be this basic discourse and debate about does one follow a subjective approach or an objective approach because it comes, of course, back to the well established jurisprudence of extradition, where one does not extradite for offences committed with a political motive and the words of course strongly suggest that one is dealing with a subjective exercise, in other words one looks at the motive of the offence as one would also in dealing with mitigating factors in a criminal trial and aggravating factors, look at the motive, almost completely as a subjective exercise. But of course the subjective approach lands into a certain amount of problems as does the objective approach. One cannot - a subjective approach to political offences creates the problem that on the one spectre of politics is that politics itself is defined subjectively, in other words one gets the real fringe parts of the political spectrum, whether it be racial supremacists or kinds of one man band revolutionary organisations. Doing things which subjectively is motivated purely only by their crazed political convictions. Now that inherently strikes one as not what one is dealing with, there must be some form of legitimacy in the politics and that's what introduces the objective element.
On the other hand, one doesn't want to follow a completely objective approach where there's a clear political battle between two parties and any person who subjectively does not really feel himself to be party either to the one side or the other side, but may just be an opportunistic criminal to get involved in this battle, but objectively this is a political battle, what happens there is political. So those examples just illustrate the problem and why the debate is really neither here not there because what happens at the end of the day, objective elements and subjective elements are introduced into the process to reach an acceptable solution.
Now one of the objective elements introduced in this Act is of course the whole Section 20 Sub (ii), in other words one must be part of known political organisations or one must be part of the State structures or at the very widest in Section Sub Sub (g), one must associate oneself with an act which falls into one of the other categories. Now in other words what Section 2 does, it sort of trims the whole possible range of people that can claim to have committed political offences. It sort of trims them on the side and it requires of one to put oneself in one of these categories. Now my submission is that Mr Mfalapitsa falls - can fall under more than one but certainly under Sub (ii) g. But to start with, I also say that he falls under 2(b) which reads as follows:
"Any employee of the State or any former State or any member of the security forces of the State or any former State"
Now he was not a member of the security forces but he was an employee of the State, with respect Mr Chairman, and the reason why I say so was that "employee" given it's ordinary meaning in common law, if I understand what I was taught at university correctly, is if there is a strong element of control over the person's work and his activities and there is a regular remuneration. Now there seems to be both. The Askaris seems to have been paid on a basis more regularly than for instance just ordinary informers, they were given a monthly amount, in other words they were sustained by the State and I believe that the idea of an employee is wide enough to cover Mr Mfalapitsa's position.
ADV GCABASHE: Mr Jansen just to help me distinguish your definition of employee and informer. You know, what would an informer be, an informer gets a regular stipend, would that person also be an employee?
MR JANSEN: Yes, I believe if his activities as I understand the essentials, if his activities are to a large extent controlled by his handler, in other words his handler tells him listen, you must go and do this and that and the other, in other words he doesn't tell him listen, go out there and if you get something report back to me, type of thing or you know, look for information when it suits you, then I don't think one would be an employee because that de facto of control would be lacking.
ADV GCABASHE: And where the control really turns on coercion, a form of coercion as in the case of Mr Mfalapitsa, who really as he said was between a rock and a hard place, he really had nowhere to go, he didn't want to work for the State but he was given no choice at the end of the day. If he had had the choice he would not have been an employee, he would not have called himself an employee in those particular circumstances.
MR JANSEN: I agree that in that sense his position is peculiar but I don't think it does anything other than strengthen the element of control. He was not - I mean he can't be compared to a detainee of the State. To some extent I suppose some argument can be made that his situation was pretty captive and that, you know, that is not the same as that, that control situation between an employer and an employee but that captive situation which he was, was nothing more than really having to show loyalty, it was not to the extent that he was prohibited from going to Krugersdorp to his family and to absent him from work when he's not required there or when it's not his time of duty etc. I don't get that impression. I think the general impression is that he - that the captive part of his situation was really that had he made any show of disloyalty, yes he would have been in trouble and well, I suppose that you could almost say that of every single person in the security forces.
CHAIRPERSON: Mr Jansen, is your submission that there was a contractual relationship here in order to found the relationship of employer/employee, was there a contractual relationship and does that require consensus? We're talking about the normal principles of the law of contract?
MR JANSEN: Yes. Well, I would have to say that there must have been some form of - for purposes of establishing the contract, yes I must obviously submit that you must find that there was consensus but you know consensus is only vitiated when there is duress and I think that then brings us squarely back to the argument that Advocate Gcabashe raised, whether that may not, yes.
CHAIRPERSON: And the other thing, if there was a contract of employment, why was there a need later on at the end of that year and that's how I understand the evidence, later on at the end of that year to employ him, if I may put it like that for want of a better word?
MR JANSEN: Yes, he then became a member of the security - of the police. No, certainly, there can never be an argument. There could never have been an argument that he was a member of the force prior to that appointment of his but I do believe that all Askaris and I think one would find a whole range of them some who may even have changed their loyalties completely, who found themselves in that position that they were not being treated fairly in that sense that they were not employed as members of the police and I think that was part of that whole process of upgrading their employment situation to being in statutory employees.
CHAIRPERSON: In terms of the terminology that applies in this particular realm, I believe if I understood this evidence correctly, there seems to be references to agents and to sources and I think some of the applicants had referred to this sort of thing and it appears as if the Askaris seem to have been placed in the category of sources. Now how does that impact on this part of your submission?
MR VISSER: Well it impacts in this sense, Mr Chairman, that a source, I would imagine most sources, would qualify as being employees and that most agents would qualify as sources because agents have a more permanent and direct affiliation with the police force and as I understand it, they're paid regularly etc. All that is done is, is there are formal links as members of the police or sort of severed. It's almost like the undercover operations of the military almost, it would seem. So obviously when they call them sources, one would have to show that they were as a fact de facto, their relationship with the police were different than ordinary sources.
ADV DE JAGER: They might have sort of independent contractors, on certain occasions giving information but not an employee of the State?
MR JANSEN: Yes, yes, are you referring to sources now?
ADV DE JAGER: Sources yes.
MR JANSEN: Sources in general and I would say that the ordinary meaning or the ordinary understanding of sources would seem to be those people whose contact and whose work for the police is more of an occasional nature than a permanent nature. So to the extent that Askaris are referred to as sources, one must then obviously illustrate positively that although they're referred to as sources and registered as sources, the factual situation was different and the factual situation was different in all the important aspects that it could possibly be firstly where they were stationed. They were stationed at Vlakplaas, in other words they were stationed in police barracks.
ADV DE JAGER: And the Act distinguishes between an employee of the State and on the other side a member of the security forces?
MR JANSEN: Yes.
ADV DE JAGER: So there's something wider than being a member of the security forces.
MR JANSEN: Yes. I'm certain that the primary intention of the employee of the State would be somebody from another department, you know, I obviously have to concede that the primary intention of that word employee of the State would be to cover those other people that got involved in whatever, whether it was smuggling letter bombs to London or whatever, but what I am saying is that on the ordinary meaning of these words, they can cover Mr Mfalapitsa and I don't think in law there's any objection in saying that if there's a primary intention by the legislature but the words quite perfectly covers another situation that it's not applicable thereto.
And then from (b) one jumps to (f) which really is the same categories and (g), I really submit should not have too much of a problem to say that such person once associated him or herself.
ADV DE JAGER: Yes but if (g) was meant to be for an accomplice after the fact, associate after the fact, associated himself or herself with any act committed?
MR JANSEN: Yes but that same past tense of "verpleeg is" or committed is also found in the introduction to Sub-Section 2, the past tense is also used there, "committed" and I don't think so that in other words what the Act is referring to is it's referring to things which are past as we look at it now. I believe that the word associate in it's ordinary meaning and in it's legal meaning is a lot wider than association after the fact. I'm certain that in drafting these categories of people that should qualify for amnesty, one may very well have had in mind these people on the fringes of these operational activities, somebody supplying a house but not really being a member of the forces or a member of a specific organisation. Of course as far as the political known organisation is concerned, it's easier because one can say by the mere act of association one becomes a supporter, in other words a supporter, you know, that I was a supporter and that's why I did that, whereas they state it slightly different and I ...(intervention)
CHAIRPERSON: Yes, but the question of my colleague is, isn't this a category relating to non-perpetrators? Isn't that the category relating to accessories?
ADV DE JAGER: Ja, accessories.
MR JANSEN: Yes, well then one of course falls into that difficult line to be drawn as to when is one an accessory and when is one a co-perpetrator and in other words one must remember that in criminal law if one is an accessory as opposed to a co-perpetrator, one is still convicted of the actual offence itself. In other words where the Act says about you are guilty of an offence and an omission, you are found guilty of the act itself. If you drive the get away car in a bank robbery, you are found guilty of that robbery even though you may not have anything to do with the robbery itself, but because ...(intervention)
CHAIRPERSON: You see the difference as I understand it lies in the act as ...(indistinct). I mean take the facts in this particular case where your client participates, he directly participates in this, I mean is there, that's the real question, is there a scope for accessorial sort of finding in those circumstances?
MR JANSEN: As things were with many of these operations, a lot of people had played different roles and in a certain sense everybody is accessorial. I don't think - although they all would probably - by definition they would all - one would find the elements in each offence in respect of each and every one of them. But as far as the actual commission of the different acts which formed the offence is concerned, nobody was involved in the whole spectrum of them. But I must admit that I haven't really applied my mind to this problem, in other words that associated, in other words that you associated yourself with the act and not specifically associated yourself with those persons if that is the distinction to be drawn here, in other words you must still remain an employee or a member but you didn't commit the act, you associated yourself with, in other words the word associate relates to the act or the omission and it doesn't relate to the persons, in other words it doesn't cover people. I believe that if one looks at the basic structure of Section 2 and the purpose of Sub-Section 2 is, it is there to create categories of persons, now as members of liberation movements, members of political parties, supporters of political parties, employees of the State, members of the security forces and it creates all these categories and it also creates another category of saying people associating themselves. In other words, somebody who is not a,b,c,d,e or f, somebody else, in other words outside of these structures but has associated himself with an act committed by somebody in a,b,c,d,e or f. I believe that to be a purpose of and a proper approach because what would happen with a source, a source proper, an occasional source, which says look I know where people are busy training themselves with weapons, but is not an employee of the State, he's not a supporter of a specific organisation or whatever, but he then takes as part of the operation of killing these people, he then takes the police there. Where does he fit in or does such a person not qualify at all for amnesty and what would then be the purpose of Section 20, the proviso to the (i) in Subsection 3 provided that any act by any person who acted and received money or anything of value as an informer of the State. So the State clearly wants to save the informer from this personal gain disqualification, so it can only mean that you have to put an informer somewhere in a,b,c,d,e,f or g and I believe that the appropriate and the easiest way of doing so is to put it in g.
ADV DE JAGER: Well it's clear from that point that it wasn't intended that informers should be excluded, that apart from whether we could clearly read it in Subsection 2, the fact that they're not excluded by - where's the remuneration one, right at the end, the proviso to (i). So it's clear that the intention was not to exclude them because they received some sort of gratuity.
CHAIRPERSON: Yes so in other words it saves the informer, it doesn't qualify him or her per se for having received money so it's only in respect of that, that disqualification of receiving money that they save the informer. The informers still qualify in terms of the general situation but you can't disqualify simply because the informer received money. So it seems to be limited, that saving seems to be limited to that situation of receiving money.
MR JANSEN: It's conceded Mr Chairman and I think what I must say, then submit there, is that it would seem to be some indication that the legislature had informers in mind and the question is where would the legislature have placed, if they had informers in mind, where would they have placed them because each and every applicant must show that he's somewhere, fits somewhere into a to g otherwise that applicant, he or she does not pass the first hurdle. Now if one looks at the Act functionally, one of the other problems is this, if you say somebody who associated herself with the act means somebody who is an employee or a member of the security forces but hasn't committed the act itself but only associated itself, that is what g. means. Then g, with respect, is not necessary because if you associated yourself with an act you neither committed the act itself in which case you've committed an offence or a delict or an omission or whatever.
CHAIRPERSON: As a perpetrator?
MR JANSEN: Yes. And/or you have - and if you've associated yourself after the fact, then you've committed another crime, maybe not that specific crime but you've committed an offence, the offence of accessory after the fact. So still you don't need g. That's why I say g must refer to a category of people.
CHAIRPERSON: Yes that's quite apparent, it's an additional category to a to f?
MR JANSEN: Yes you can't place this ...(indistinct) under a,b,c, yes under g.
ADV DE JAGER: Now I must refer - I think it's been considered, I didn't sit on that Panel but in the matter of Van Wyk and Du Plessis, they didn't belong to a known political party.
MR JANSEN: Yes.
ADV DE JAGER: But they committed a political motivated act.
MR JANSEN: Yes.
ADV DE JAGER: And I think this was considered there, I'm not sure.
MR JANSEN: Yes I understand that was the case of the people that called themselves the "Socialistiese Partisane" yes and they were a group of young - they were basically but, yes the gist of that disqualification there was that it was not a known political organisation if I can understand the judgement and then some of the offences were said not to be political and others were said to be political. I can't assist any further than that.
Now in any event maybe I should just conclude on that issue, if not b, then g, then if not g, then b, or then f. And in the course and scope of his or her duties and within the scope of his or her express or implied authority. Now I don't want to dwell on that too much but it does effect I suppose to some extent on this basic thing of an employee but an employee has duties and an employee does things in the course and scope and in the run of his employment whereas I think the informer probably doesn't, he doesn't have these duties, it forms part of that definition but there is the case of Masuku versus Mglalosi 1998, Volume 1, South African Law Reports, Supreme Court of Appeal Judgement which deals with these problems and it really, the problem as discussed in our law is actually in matters which is to a large extent unconnected with amnesty and public law as such, it really deals with the issue of matters which is sort of squarely within civil law and the liability of the State for delicts. On the one hand one has the problem of vicarious liability, one must establish that it was in the course and the scope of the employment. In fact and the wording used in our law is not in the course and scope of one's duties and it's not in the course and scope of one's authority, the words used in our law is in the course and scope of one's employment and more specifically - and it's not as if these words are taken from a statute or something, they are common law words that have become a matter of convenience for purposes of pleading, for purposes of describing that that person was advancing the interests of his employer at the time that the delict was committed. That's the one place where it is discussed and then employment does not mean authority because any policeman that assaults somebody in detention creates liability for the State and he doesn't have the authority. So employment is something completely different and then the same - and then the whole problem becomes now, when is he not part of his employment, is he when he's busy arresting somebody and he assaults somebody, is that now part of his employment and there's this whole range and there's all those cases that deal with that big problem as when, where is the line as far as vicarious liability is concerned, where must that be drawn?
The other place where the debate rages and what the Masuku case is about is when it deals with prescription, now if somebody does something in pursuance of the Act, of the Police Act, or in pursuance of the Defence Act, then a prescription period of a year or something applies and then one gets these contradictions where you say well, you were acting as an employee in the course and scope of your employment but I needn't comply with the prescription period because you weren't acting in pursuance of the Act and the Masuku case deals with this apparent contradiction in our law and it says these are two distinct concepts, vicarious liability and doing something in pursuance of the Act and it says that you can be acting in the course and scope of your employment and your authority as such and well, whatever your job entails but also on the other hand, not acting in pursuance of the Act and the problem is it would seem that the wording that is used generally is actually not the wording that is used in this Act, in other words the course and scope of ones duties and the scope of express or implied authority. Neither of those phrases actually says in the course or scope of employment or in pursuance of statutory duties. They don't say that so they have some different meaning and I think the correct way of approaching this problem is this, that there are elements of what are relevant factors to be taken into account of that we can look at when dealing with vicarious liability and in dealing with this problem of when one has to answer the question whether a deed has been done in pursuance of an act, that there are elements to be taken from that jurisprudence but that for the rest it must be given a purposive interpretation in terms of the context of this act and part of that purpose of approach would be to get rid of any apparent unresolved or contradictions that one would get oneself involved in in using the ordinary meaning.
Mr Chairman, would that be a convenient time? I see it's 20 past already.
CHAIRPERSON: Yes it would be, we'll adjourn until 11.30.
We're adjourned.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Mr Jansen?
MR JANSEN IN ARGUMENT: (cont)
Thank you Mr Chairman, in stepping off from this aspect, I just want to refer you to bundle 5, page 68 thereof, it's something that my attention was drawn to. That is a statement by General Johan Coetzee which was submitted to the, I think Harms Commission, and in paragraph (f) thereof, the last sentence. This whole document deals with Vlakplaas and it's background and it's existence. It says:
"The then Commander, General Viktor, informed the Committee and the members were also in discussion that this Commission is the Rabie Commission entered in a discussion with some of the personnel and the members also entered in discussion with the personnel members (rehabilitated terrorists on this farm)."
So there's a clear indication that as far as the powers that be in the police was concerned that they regarded Askaris as "personeel lede" and insofar as the intention of the parties relevant, Mr Chairman, I think that that is some indication that they were regarded as employees.
CHAIRPERSON: And perhaps just to come back to the point that you were making before the tea adjournment, practically when considering Section 22(b), if a member of the security forces is able to show that he was acting in terms of an order from a superior, would that suffice to bring him within Sub-section B?
MR JANSEN: He would certainly then the first requirement of B. being a member of the security police he would pass that test. The second test then, in the course and scope of his duties or express or implied authority and if I may use reverse logic by virtue of this process and judgements that we know have been handed down by Amnesty Committees, yes in many as a general rule, he should qualify as long as the other requirements are there because if not then firstly one deals with the fact that B is meaningless and what it then must mean is that that authority I think must mean factual authority in the context of what they were busy with, in other words offences and omissions and that it must have been part of that person's duty. The problem is, Mr Chairman, that I think normally as lawyers and normally as people dealing with statute is that we presuppose in the word duty and we presuppose in the word authority, we imply in those words lawful authority and we apply lawful duties and then I think quite clearly here that that normal implied meaning cannot be applicable, yes. So my answer to your question would be yes.
CHAIRPERSON: So that in the realm of this legislation, adopting the approach that you had indicated earlier in regard to onus and this not being a technically sort of limited process, where we need simply be satisfied having had a conspectus of all the material placed before us. It would be sufficient for a member of the security forces to show that there was an order and in absence of any other factor that might detract from that, that is sufficient for the purposes of B because it would deal with both those two requirements in the course and scope of duties and in terms of express or implied authority because if you adopt that attitude then, you're giving effect to both those two requirements.
MR JANSEN: Unless of course the content of the order is such that it cannot in that unlawful sense mean duties or authority. I don't I'm speculating a bit, I would imagine that most of those parts, let's say an order to go rob a bank or steal some money or to rape somebody etc., one would deal with that normally in Sub 3, in the weighing process but it may be even that there's an argument to be made that even in that world of unlawfulness and illegality, there was things that were regarded as duties and things that were regarded as authorised and certain things that were not regarded so some unwritten code of, I don't know, unlawful chivalry or something, I'm not sure.
ADV DE JAGER: Suppose you were not a supporter of the government at all, a member of any opposition party being a member of the police, so he's not associating or he's not a supporter of the politics of the day, of the government, he's not a supporter, but he's been ordered to carry out one of these illegal deeds and he accepts "well I should do it although I'm not agreeing with government policy", would that be enough for him to say well I fall under what is it, acting under order? Yes under 3(e), dealing with the criteria for motive.
MR JANSEN: Yes, it is a further complication in dealing with this Act clearly that here the legislature uses the word "order" as opposed to what is here used as authority and duty. That seems to be some indication as to what one does in the cases where there's not an order, in other words the most senior person. That is one of the factors to be taken into account, whether there was or was not an order and that authority, especially implied authority. I mean it's not really part of Mfalapitsa's case but clearly implied authority could mean then something in the line of not an order received from above but something which I regarded as part of my job and one gets that evidence when one deals with the general culture in the security police and with Vlakplaas is this, that obviously these people all arrived in the security police and arrived at Vlakplaas at the time when these things were already happening, in other words they did not create the culture, the culture was there and they realised that part and parcel of their work as security policemen were illegal or was extra-judicial and ...(intervention)
ADV DE JAGER: Mr Jansen, why I'm asking this because I don't think one could come to the conclusion that your client was a supporter of the policies of the government at the time or the police at the time. He wasn't a supporter in the sense of being a member or belonging to the one group fighting the other group so if he didn't belong to a known political party, you're not a supporter of the party, you're not a supporter of the government's policy, should you be excluded from amnesty?
MR JANSEN: No.
ADV DE JAGER: And you're also not a supporter at that stage of liberation forces?
MR JANSEN: Yes, no absolutely, Mr Chairman, I think that's the gist of my argument, is that one should not be excluded simply firstly as just as a matter of being even-handed in the process and to the extent that one must interpret these sections in a way that at least promotes equality in that sense or at least even-handedness. One should be reluctant to accept an interpretation of these sections which excludes the type of person that Mr - or the person in the type of situation that Mr Mfalapitsa was. It does on the face of it one is slightly as unfair and obviously again falling on the general rules of interpretation, if there's a clear indication to the contrary, well then so be it but I submit there is clearly no interpretation which seems to exclude that especially with Sub-section 2 which seems to look at these objective categories and not - I know that there's this element of bona fides which I will be dealing with soon but for the rest it's objective categorisation of people to say okay, once we have these categories then we'll now start looking at their motives subjectively etc. but we first want to exclude a whole lot of people that we think shouldn't be part of this process. So what they are doing is they are defining the main parties involved in the struggle and people that found themselves in these grey shades of - in that struggle, meaning agents and double agents etc., they have a particular problem too maybe as far as their subjective approach is concerned but certainly not as objectively categorised, Mr Chairman. And the reason would go both ways, it would relate to Sub-section 2 and relate to Sub-section 3.
If one adopts another attitude, one's going to create an unrealistic situation, one's going to adopt the - one's going to create the environment for Askaris and tell these very glossified versions of how they changed their loyalties, you know, and how they were supporters of the State and of the National Party and stuff which is patent nonsense but one would create this strained and a superficial situation whereas what one wants to achieve with this Act was for people to come forward and forthright tell what was their problems even if it entailed such a serious predicament.
CHAIRPERSON: Yes, I'm just going to go a little bit back and just get your submission again on this question of orders. Does it matter lower down in the hierarchy, does it matter if a senior higher up or almost at the top of the hierarchy had any specific orders or authority for having handed down an order? Does it matter, I'm talking about those who execute?
MR JANSEN: Mr Chairman, my submission is as a general rule it does not matter but the problem does become slightly more complicated in cases where, because - and this has been canvassed in some of the other meetings, exactly what were the rules in respect of covert operations, where were the decision taken as to who lives and who dies? Where were the decisions taken to who are abducted and who are not abducted? And there are cases where people right at ground level took decisions to abduct, there are occasions where people, let's say not close to the top of the hierarchy decided that somebody must be eliminated and there's a whole sort of range of possibilities. If a sergeant gives a constable an order to eliminate a high profile politician without having authority of at least let's say the commander of Vlakplaas, obviously one would raise a few questions. But again, just as a general rule, you know, one would at least say that at least the constable in that situation would at least ask the question listen, but is this an order from the commander? So I don't know what the final answer to that is because I think the problem here is one is dealing with unwritten rules and one's dealing with a culture more than a system of command and a system of rules and this culture determined who does what. So but as a general rule, Mr Chairman, I would say it does not matter whether where exactly this order emanated from as long as that person took an order from somebody that he normally takes orders from or took an order from somebody that he could have expected to have taken an order from or would have regarded that person's order as an order and I think again, I think Mr Mfalapitsa's situation in that regard is beyond controversy and I think it's more when one's dealing with situation like these experts, the explosives experts, Ms van der Walt's clients, that one then would need to ask these questions as to, you know, would this be regarded as an order and is it reasonable etc. I would imagine that debates more acted in that situation.
CHAIRPERSON: Yes, no I've got that submission. Then if one goes higher up in the hierarchy, still in an attempt to give effect to the wording of Sub B which we're already talking about, I'm trying to understand what the situation is on the higher ranks, the higher rungs of the hierarchy. Is it open for those higher up to rely on like some of the references here rely on say the conduct of political heads for example. If the Minister turns a blind eye, doesn't reprimand you, allowing things to happen, would that open the door for implied authority on the part of the higher officers in the hierarchy?
MR JANSEN: Mr Chairman, the issue is this, a person in that position will have to show that he had either express or implied authority, whatever those words means, he would have to show. So starting with rule number one, words must be given some meaning. Normally they're given their ordinary meaning but they must be given some meaning. That's rule number one. I think we are pretty close to the point that they can probably not be given their ordinary meaning, in other words they must be given a contextual meaning and if and obviously higher up in the echelons is what will happen is that one would have to pay specific attention to what the intention of the legislature is. If the intention of the legislature at the end of the day is that there must have been an order, it means precisely that the intention of the legislature was then that we will forgive those who were following orders although they knew it was unlawful but there's this element of compulsion in orders and it creates a predicament for somebody who is given an order because the illegality of it is not always all that apparent but we're not excusing the person who gives the order, that would be the strict interpretation. But I think why at the end of the day that fails and why it would appear that the legislature actually had another intention and in fact the intention not to disqualify that person at the top is those words that was referred to just now in 3(e). In other words that the existence of an order is only one of the factors that one looks at or at least a factor that you have to apply your mind to decide in that balancing process that Sub-section 3 requires you to do. In other words that in the absence of an order one can still get amnesty but it's certainly one thing that weighs on the negative side and therefore that implied authority means and I don't know, one would have to sit and think about it more because one doesn't want to just ramble off with a whole lot of generalisations, but it's not this lawful authority gained from a statute, it's some other authority and it's not express authority.
ADV DE JAGER: If I could do something on behalf of a person without being asked to do it, isn't that so? I could, if your house is burning, I could save your house.
MR JANSEN: Yes and in the law of what's it ...(indistinct), I suppose the law sort of imputes some quasi authority to do so, maybe not authority from the owner but some general - yes, in other words promoting the interests of which then again brings us back to one of the factors used of vicarious liability, etc. etc. Yes that very well may be the answer. But again, when looking at the structure of something like the Police Act or the Defence Act one has this notion of something which is authorised in the general sense, in other words somebody's authorised to arrest under certain circumstances and an order, an order is a specific order, it could either be a standing order, everybody will arrive at work at 8 o'clock everyday or whenever their shift starts or a specific order "arrest that man", but the general authority to do certain types of things is the authority which somebody has, a general authority and along those lines, yes it means that you don't need a specific order to do something, you have that authority and I would imagine the logical and the functional approach would be that somebody that's fairly high up in any organisation, the buck must stop somewhere and the buck for different kinds of things the buck can't stop at the same level every time and that's the difficulty, now I think you're going to be faced with that difficulty in many instances because what happens is very often is the target evaluation is done very low in the ranks and then the proposals go up and you know, sometimes it goes up to this level and sometimes higher and there's just no written rules, there's just no clear way of looking at it. It's not like looking at the words of a statute or looking at the words of a regulation and saying yes, well there was an order or examining or there was authority or examining the facts of a case and say yes there was an order and this was the content of the order, it's just not going to be that easy. But I must admit I just don't have a final answer to what that word implied authority means. I'm sure express authority would mean something like if the General, the head of the security police comes and he tells his deputy, "listen, when I'm not here or even if I am here, if people, if operational units have a request for covert operations which involve the elimination of political opponents, you must take that decision or on the other hand you must discuss it with me, whatever, you can take the decision if I'm not here." Something to that effect, just as an example. Then he has express authority I would think to do that.
ADV DE JAGER: Would it be express authority too if I would say eliminate the enemy?
MR JANSEN: ...(inaudible) that that specific example goes very far, I mean that really, that gives carte blanche to every foot soldier to - but again, I suppose what happens in practice is that information is fed through and it's verified and then it comes back and ...(intervention)
CHAIRPERSON: Then it's a factual enquiry ex post facto where the act which was committed related to what could be said was an enemy in order to come within this sort of virtual carte blanche, as you put it, type of order or type of authority?
MR JANSEN: Yes, I must say I don't really know because I think what one's going to find is that in every specific instance one must still make sure that one keeps the factors in Sub-section 2 and the factors in Sub-section 3 apart from each other, in other words one can very well if some people just start involving themselves in all kinds of rogue activities, start asking the question well, was there an order, you know, what is the legal and the factual nature of the act and the context of the act and I suppose there are many factors or many facts in a particular case or in most cases which are relevant for both sub-section 2 but also relevant for sub-section 3, in other words they're not compartmentalised, certainly not, no. But the exercise of applying one's mind to sub-section 2 is a separate exercise in going to sub-section 3 but the facts may be used for one or the other or both.
And yes, if I'm let off the hook on that one, Mr Chairman, I'll then go to the next little part of sub B which said then it's directed against a publicly known political organisation or liberation movement. Now I think it's clear that that is the case in this instance, Cosas was a political organisation, the ANC was a liberation movement, there was a measure of them being identified, the one or the other. I don't think there should be much of a problem between Cosas and the ANC, it becomes a little bit more difficult, I suppose, when one's dealing with labour unions but I think in many of these cases, many of these actions was directed at even labour unions which were seen as part of the broader struggle so I don't think that is contentious in this case. And then members or supporters of such groups, that's the same and then obviously something that is then asked in the case of Mr Mfalapitsa where one can say it was committed bona fide with the object of countering or otherwise resisting the said struggle. Now one thing that one can say of Mfalapitsa's evidence, although much of it was said, you know, that "I actually wanted nothing to do with it, with any of the struggles, I didn't regard the ANC as the enemy." The one thing that he did say was that he became or he was against the armed struggle in other words he changed his view as to it would seem the legitimacy of the armed struggle or it's - so it was aimed at the armed struggle, at least as far as that is concerned, that accorded with his subjective views. He may not have been - and I think it's in fact I think many people in this country in all along the spectrum of politics, whether it be in Black politics or White politics as they were formerly different at the time, many people made a distinction between the ANC and it's armed struggle and many people said well, we're supportive of the idea that the ANC must be unbanned but we don't like the armed struggle, I think many people found themselves in that position. So it's not something strange to say well, I didn't regard the ANC as my enemy, not at all, in fact I may even be a supporter but I strongly objected against their means. That distinction is clearly a legitimate one to be made in the South African context. So purely on that point Mr Mfalapitsa's position is bona fide. In any event I think his position as general cannot be said to be in any sense mala fide and I don't think that bona fide can only mean that he's political, in other words, he's bona fide because he believes that he is now fighting the enemy and he is politically against them and only view in your mind you are politically against the ANC, are you now bona fide fighting them. It would create a problem for the type of policemen who said "well I wasn't really politically minded". Take a position, not of an Askari but a Black policeman to say "I was not politically minded, I didn't want anything to do with politics, I just wanted a job, but part of my job is obviously doing my job and that entailed arresting people, that entailed being part of whatever the people who were politically minded made our job." I think that remains bona fide.
ADV GCABASHE: Mr Jansen, I'm just recalling Mr Mfalapitsa's evidence and if I'm not wrong, he said something to the effect that his objectives were not the same as the objectives of the other applicant. Now in light of that, what do we make of that if he was bona fide in his countering or resistance of the struggle that his employers were also?
MR JANSEN: And my answer to that can only be the following that the context of that answer is that his objectives were not their objectives means this, their objectives was to keep the National Party in power, to make sure that the National Party is in a position to enforce their policies. That can be one policeman's objective. Another policeman's objective was maybe to keep the communists out of this part of the world. Another person's objective would be to make sure that the armed struggle, is purely to counter the armed struggle and so in that sense, in a political sense, his objectives were not the same but in countering the armed struggle, their objectives were the same. There is that, even though maybe small, but there is that small overlap in their objective. I think the facts as a whole speak for themselves.
ADV GCABASHE: You see, one of the reasons I asked you is you'll recall that I did ask him about the issue of self-preservation you know, as a possibility. Maybe this is why he was in this particular job and how you then relate that to the resistance of a struggle, the carrying out of duties that he was asked to - you know, you've got a whole set of factors that have been thrown into a melting pot here, just having listened to Mr Mfalapitsa and I don't know if one should extract one final answer and say this is in fact why this person was involved in this, self-preservation, I'll just pick on that, not that that's a particularly important one or because he indeed at the end of the day did want to counter the revolutionary onslaught from outside and he actually came to accept that that was going to be what he was doing as an Askari or is it just all of this rolled in one? I don't know if you can help me that at all?
CHAIRPERSON: Okay Mr Jansen, before you respond, can I also just add, throw into that melting pot, and how does his subjective view that the particular action was not necessary, in other words he seemed to subjectively have disagreed with a particular action. How does it feature in that melting pot?
MR JANSEN: Yes, let's deal with the issue of self-preservation, in fact I suppose it deals with both questions. Certainly, a lot of what he did there at the time was because he wanted to preserve his own life, he wanted to stay alive and it's the central dilemma that he had and his predicament and he certainly didn't shy away from it and it certainly it's something that is very prominent. But that it may even be more prominent, his motivation of self-preservation may even be more prominent than his dislike of the armed struggle or his view that he was against the armed struggle but just because it is more prominent, does not necessarily mean that it negatives his political view or his stance against the armed struggle and I'm sure that every single policeman had a different measure of one the one hand, well it's a job that I have, on the other hand I'm also a supporter of this government. There's a mixture, some people are just more politically minded than others, others are so politically minded that we wouldn't mind at the end of the month if the government didn't pay them, they'd keep on doing their jobs. Others would say whoa, if you don't pay me at the end of the month I'm not going to be doing this work any more. There's this mixture of self-preservation, self-interest and political interest and interest of the employer.
ADV DE JAGER: But self-preservation is not the same as personal gain, he didn't do it for personal gain, that couldn't be included under the term personal gain, self-preservation.
MR JANSEN: Yes, so what I'm saying is that self-preservation is not - yes, is not something that would negative the bona fides, for instance if it was somebody that purely, if somebody had left the ANC and decided well, you know, I'm sick and tired of the struggle now and all I now want to do is I want to make money out of my situation, I will go and fight for whoever pays me the most and it happens to be the South African Government, therefore I will now go and become an informer to them, then it clearly it negatives your bona fides and then in any event apart from being this - and obviously bona fides is the one subjective element in sub-section B which also reflects to a large extent on many of the other factors such as personal gain but I don't believe that a person and that an Askari in general and specifically a person like Mfalapitsa can be said because of the strong issues of or the strong elements of self-preservation there's no longer bona fides. I don't think that adds to his bona fides but I don't think it detracts therefrom. As long as there's an element that he's at least doing something which he regards as being in accordance with some of his views and then of course finally, if he failed on the bona fide leg of the exercise, then I think he goes to (g), in other words he is then dependent on the bona fides of the persons giving him his orders, falling into category (b). If the others fall into category (b) and he's associated himself therewith then he falls in it and yes, but again I submit that he falls into both or he could theoretically fall in. He probably starts off with (b) and he probably falls in (b) and I say that it should be found that he falls within (b) but if not, then in (g) because I don't think in terms of (g) he has to show that the bona fides is present in him, he must just make sure for purposes of sub-section 3 and 4 he's not disqualified on the personal gain issue, he himself, but the bona fides that is relevant there is the persons whose act he has associated himself.
Now Mr Chair, I got involved in all these arguments, I forgot exactly what the question was that you asked me about?
CHAIRPERSON: Oh no, I asked you to reflect on how does his subjective, apparent subjective disapproval, yes.
MR JANSEN: Mr Chairperson, the nature of the act, the proportionality of the act, the justification of the act, I think so clearly belongs within the realm of sub-section 3 and or it's components, that that exercise which is very subjective on at least that one aspect should not be brought into the exercise we're dealing with under (b). But again, there is this requirement of bona fides and you must find that at least for purposes of sub-section (b) whatever that word bona fide means, that he was bona fide and I think the simple answer to both (b) and maybe to 3 that he was not the decision maker and again obviously if one finds that he's lying on that one aspect, in other words that it was a fabrication, that Nkosi and Matsidiso was a fabrication of his then it was a pretty malicious thing to do and then he probably failed then on the bona fide aspect as well as on the full disclosure aspect. At least he himself personally but that is the facts of the enquiry and I've dealt with that argument, I'm not going to repeat that and so I say that therefore his subjective view that it wasn't justified is simply this, he was not the decision maker. Somebody there at the - it would be extremely unrealistic for people there to make their own value judgements as far as that is concerned, in other words to make value judgements as to what is justified and what is proportional.
In any event, his actions was bona fide in this sense, for purposes of 2(b), is that his job was to give information to his superiors, he gave the information to his superiors, he did what was his job and then his superiors decided what was the appropriate action and then he then followed their orders in - I don't think in that line of events there was anything that he did that was mala fide. There really is no evidence to suggest that he could have been mala fide. Again there's an extraordinary amount of overlap between being bona fide for purposes of Sub 2, sub-sub (b) and acting out of personal malice, ill will or spite as in (ii), the (ii) exclusion to sub-section 3. I don't know exactly when one can be bona fide, do something bona fide against ones enemies for purposes of (b), in other words crossing that hurdle but then acting out of ill will or spite or malice, I think one - I get the impression that the legislature just wanted to make double sure that the mala fide people get excluded from the process because it's an absolute exclusion, both in 2 and in 3.
In any event it would of course, thinking about it, I'm thinking as I go along now, obviously that person in sub (g), (g) might qualify because the person giving the order was bona fide, but (g) himself was mala fide, he would then be disqualified by virtue of that provision.
ADV DE JAGER: But then at least a sort of ulterior motive must be proved?
MR JANSEN: Yes, yes, clearly there must then be an ulterior motive and yes, I mean the findings at the end of the day must be that because of the requirements of or the provisions of (ii) in sub-section 3, this person is disqualified because, you know, as we regard this section and as we see the facts that exclusion operates.
Now Mr Chairman, if I can then go over to sub-section 3. I think it's clear from the words that whether an act is associated with a political objective that that question shall be decided with reference to the following criteria, that we are dealing with a disjunctive exercise, weighing things in the different balances. Something fairly close to what one may call a discretion, though I'm strongly against the notion that we are dealing with a discretion here, I believe it to be some value judgement, a judicial value judgement and you like answering to yourself the question what are the boni mores of the society, you have to look at all these aspects, you have to see which factors are present or absent, whether it weighs on the positive side, on the negative side and then you must satisfy yourself that none of the exclusions in (i) or (ii) applies and it is very clear from sub-section 3 that there is a mixture of subjective elements and objective elements. Both are matters that you must have regard to but neither gives a complete qualification for amnesty or a complete disqualification. So in other words the fact that somebody is strongly motivated by politics and his political persuasions and somebody who is very politically minded, is something that one puts in the positive balance of that person's amnesty application and the fact that there is almost as far as politics are concerned, as far as Mr Mfalapitsa's situation is concerned, not such a well directed political motive against the ANC at least, maybe very well against the armed struggle, is maybe not something that weights as strongly but where Mr Mfalapitsa's application will get positive consideration is from the nature and the severity of what he has done, he has acted in a situation where his position was very precarious, in other words he would not be regarded as serious, his crime would not be regarded as serious as would the persons crime who was not in such a precarious position. His position moves perilously close to duress. It's not duress but there's certainly this sort of one little big proviso for any Askari or for any policeman in that matter. If you talk out or you become disloyal you may very well end up dead.
ADV DE JAGER: On the evidence it was in the context, the broad context of the struggle, it wasn't a private robbery, it's been connected with politics. He'd landed in this situation because of politics, that's putting it very broadly.
MR JANSEN: Sorry, Mr Chairman, A and B is probably the purest forms of looking at the subject then the object. A looks at the motive of that person and B at the context and the context here is clearly South African Police acting against members of a known political organisation. That's the context so what he loses on A he gains in B and so one can go through these acts, these various sub-sections. C, I think I've dealt with C in the sense of the legal and factual nature of the act, including the gravity of the act. This is where one deals with his role, his position, to what extent he could have refused the order or should or should not have taken part in the order, the severities, obviously the fact that it's murder, it's probably as grave as what it can happen so again it's that balancing act. But looking at the process up to now, it's clear that something such as murder does not disqualify one from amnesty, it's a fact that one takes into account and then the object will be objective of the act. There to some extent obviously you will refer back to your findings in respect of whether other people were involved or where the other people's lives were at stake, whether that was the object of their acts. But whatever the object of Mr Mfalapitsa actions were, they were certainly strongly related to his precarious and his problematic situation and that situation was caused by the political situation at the time and I don't really want to dwell on E and F and so on, one can - except maybe F, because a lot was said about proportionality and as you pointed out, Mr Chairman, Mr Mfalapitsa at one stage said that well, yes, he regarded that as not necessarily as justified but I think to be fair to his evidence as well, he did also say but remember the context, it was done in the context of that time, in other words I think to some extent what he was saying is in the context of the time it may very well be justified and I think Mr Mfalapitsa was at pains almost to the extent of trying to avoid certain difficult questions to point out that it was the context that these things were committed. Obviously explaining the context caused his problems, his own personal problems, but the context also formed the basic justification of what was done there and obviously the main and negative in the judication of proportionality is the fact that one was dealing with fairly young people who may or may not have been a danger, there's some debate as to what, how imminent their danger was that they posed and the fact that it was part of this proportionality problem is that it was murder, that there was not decided on something less drastic and I think one would be foolhardy to try and suggest that this application is strong on the proportionality element. It's clearly not strong on the proportionality element but firstly the acts are not completed disproportional, point number one. There was this struggle that involved the killing on both sides against both sides. At the pace in which events take place, I would imagine that there's a limit to the extent to which one can expect people to consider facts, to consider alternatives etc. etc. It's easy to say afterwards, you know, this was really an easy way out. I think just finally what I'm saying is that the killing of somebody in these kind of circumstances is not so disproportional that that in itself should deny amnesty. Certainly I'm not saying the proportionality issue here is going to come on the positive side of this balancing act, it's certainly something that's going to be put in the negative.
ADV DE JAGER: If you weigh up the killing you should also weigh up the threat of killing of Nkosi for instance, that's factors that should be weighed up, it's not only killing, on the one hand if it's accepted there was a threat to Nkosi.
MR JANSEN: Yes and not only the killing of Nkosi but what's also going to say is, is well how imminent or how real or actual was this threat, it could have been an extremely, I mean one could have been dealing with youths and I use this as example, on their way to a house with weapons or petrol bombs or whatever. That's the one case where it almost comes perilously close to self-defence itself. Or this one slightly further removed and there's a whole range of factual situations which will indicate how approximate this danger is.
ADV DE JAGER: But the whole purpose of getting training in the hand grenade and the weapon?
MR JANSEN: Absolutely and that's why I say ...(intervention)
ADV DE JAGER: They start killing somebody?
MR JANSEN: Yes and why I'm saying that the proportionality test is passed on that level, is that unfortunately, the business of the people involved in that war unfortunately very often involved the killing.
ADV DE JAGER: Well that's what war is about, unfortunately.
MR JANSEN: Well yes and I'm sure that in many, many - well and it remains a difficult question to say but you know, why kill these people or why kill those people and certainly, but as I say, I'm not trying to create the impression that as an objective fact these people pose really serious danger to somebody, what I'm saying is, is there the potential danger that they had, the context of how the police would have regarded such information. It was, they would have regarded it as extremely serious that one of their members was under threat and to the extent that they didn't want to take a chance.
CHAIRPERSON: Mr Jansen, on the question of proximity, the wider objective, if I may put it that way, well protecting the State order which, the larger order which seems to be one of the objectives that was raised in evidence by some of the applicants in terms of proximity, relative proximity, that objective and the objective of protecting the life of Mr Nkosi and the councillor, does that come into the issue at all?
MR JANSEN: Yes and I think in some of the other amnesty applications many of the people have testified, many of the applicants have testified something to the following effect, they said one of the problems we had in not arresting people was or not deciding to arrest them was, we'd arrest them and that problem would perpetuate itself in the sense that these people would then become - they'd become heroes in their community, the fact that they were being detained would be used as images of - they would be created as martyrs in their society and this created a problem to police. In fact what they - and not only in their own communities but in the press and in the whole political drama of the time and whether one likes that kind of reasoning or not, it seems to be something that was present as a fact at that stage. It certainly comes across very crudely and it seems very cruel, the type of things, well you know we can't afford another Biko, you know, let's just kill the people and get rid of the body, let's rather just or you know blame it on the political adversaries or let's just make them disappear. It seems to have been a way of thinking that was prevalent in the culture of the security police and I think that is one of the central issues here, is that one is dealing with that culture and what was regarded as proportional and what was regarded as - because it really, Mr Chairman, to come and sit in the present frame of mind and ex post facto to judge issues like proportionality and justification. I'm not saying one mustn't go through those exercises but one must give a lot of room as it were for the context of the time and the culture and the war psychosis that these people found themselves in.
I think the one problem that I think hasn't been touched too much and which I think is such a central issue in this entire debate about proportionality and this killing of people, one must remember that the political system and the propaganda that was made at the time in the schools and on the political stages was aimed at dehumanising the political opponents of the government. I suppose in many instances it went further than just a political - it dehumanised Black people, it created this culture that you can, somehow you can kill a Black person and you can torture a Black person but not a White person. For some or other reason it's the impression that I get from many of these things, that it was just a lot easier to do these things in the political context of the time because of the general - once you deny the basic humanity of somebody else, it becomes easy to do all these things, it becomes easy to kill this person, it becomes easy to assault -not easy, but it becomes possible to assault an old lady to try and find out where's her son and then one must not forget that context and it's almost a context that I think we've forgotten about.
CHAIRPERSON: Yes on the subject of side of things, of course that would be relevant, this sort of state of mind that was created. Although when it comes to the proportionality question of course, there are clearly objective sort of aspect to the enquiry as well so one has to as you quite rightly say, one has to throw these things into the scale.
MR JANSEN: And if I could conclude, I think that it's clear from the process as it has unfolded up to now is that a lot of scope, if I could call it that, or a lot of leeway has been given to the severity of some of these acts, on both sides, on both the side of the State officials as well as the liberation movements. But the final argument of course there is just that it's all just one aspect to be taken into the entire context.
But again, Mr Chairman, in dealing with this weighing up process, you must obviously take cognisance of the fact that at the end of the day you must be even handed, you must be even handed with the different applicants in this case and you must - the process itself must be even handed. It must be even handed in the way that it deals, that it judges the different types of applicants on the one hand, on the one side of the political spectrum as compared to each other but it must also be even handed with the different sides of the political spectrum and it's a difficult comparison, it's difficult to compare the position of a sergeant to that of a major or of a sergeant to the general, or the major to the general, it's difficult to compare the situation of the policeman with all the State resources behind him, you know having all the weapons and all the armoured vehicles etc. on the one hand and the desperate student throwing stones at the other. It is of course a difficult thing but even though however difficult if is, Mr Chairman, the one thing that this process has to show to the outside world is that there is some even handedness, that there is some we accept that bad things were done on both sides and in dealing with this, what I'm saying to you is you must be mindful of what knowledge you have gained of your involvement in this whole process and what you know about the history of this country and the situation. You must be mindful of what may possibly happen in other applications, what has happened in other applications beforehand.
CHAIRPERSON: I think importantly, you must be fair in approaching the matter before you, you've got to have an open mind of course it goes without saying, you have to take into account all these considerations, you have to take into account the fact that this is an administrative process, it's not a court of law, we're not retrying criminal charges here, we have to take into account the context of this process and all those factors, taking all those into account. You've got to be fair towards the matter which is placed before you, isn't that really what the process is all about?
MR JANSEN: Yes, yes, Mr Chairman, that is so. Just again to say but part of being fair is to be mindful of the broader context. You must be fair in this case but the way that you are fair in this case and dealing properly with the evidence, is to be mindful of the fact that there is a broader context in this process and a broader context in the struggles of the past.
And then Mr Chairman, I just want to finally conclude by saying that as far as the exclusions in (i) and (ii) is concerned, (i) for personal gain, I don't think that there can be - there's certainly, it can be found as a fact that there was no subjective knowledge or subjective motivation on the side of Mr Mfalapitsa that he would be doing what he was doing for - certainly for monetary gain. That came later, he didn't know of it, he did not even expect it, he did not even foresee the possibility. That came later and to the extent that it may in other applications be relevant that there is this money aspect, the point is it's not the predominant motive. Now one of the central problems here is that the word for personal gain is a very wide concept. I mean for personal gain can mean I do something so that I can be promoted at the end of the year or that I can get a production bonus of some sorts. That's personal gain. Personal gain can be to win the favour of my commander or to win compliments from - that's personal gain because it makes you satisfied with yourself.
ADV DE JAGER: If you read the whole section, isn't it referring to money and anything of value, it seems as though there must be sort of a ...(intervention)
MR JANSEN: Monetary element.
ADV DE JAGER: Yes a monetary or material element.
MR JANSEN: Yes and I agree with you Mr Chairman, that that would be the appropriate to firstly limit that the wordings of those words to material benefit.
ADV DE JAGER: You know, if you really analyse it, one could come to the conclusion that personal gain, well the biggest gain I could have is to gain my life but on reading it in the first instance that wouldn't come to mind even if you're sitting and picking and picking, then you'd say okay well personal gain would also be ...(intervention)
MR JANSEN: Well certainly the receiving of medals and promotion but ...(intervention)
ADV DE JAGER: But for instance receiving a medal, would that be personal gain? Maybe if you sort of take it to the melt and try to get the gold out.
MR JANSEN: Mr Chairman but in any event there is the example of the murder in the case of the murder of Mr Griffiths Mxenge where a thousand rand was given to the parties involved after the incident and that Committee gave amnesty under those circumstances. Again not - I'm acquainted with the judgement so not much was said of that specific aspect.
ADV DE JAGER: Yes but if you act for personal gain as it's worded here, there must be the expectation at least, you can't act for something if you don't know about it.
MR JANSEN: Yes Mr Chairman and that's why I say in this case with Mr Mfalapitsa, in this case where he was new and he did not know of any of these practices, that cannot be contentious. It's a different issue and I suppose there will be different issues in other applications where people have now become accustomed to this practice that there may possibly be some foreseeability, that would be a different argument which I respectfully submit is not relevant in this case. In those cases one would be arguing that, one must see that in context and that one must see that the monetary gain that there was or that there could have been foreseen played no role in the actual motive to commit it, that it is such a small part and it's not nearly a dominant issue at all. In other words, the argument would be, if something is done for personal gain, if the personal gain is not there or if it's foreseen that there won't be personal gain at the end of this operation, then that person will say well I will then now not participate in that, that's a person who acts for personal gain, I believe in terms for purposes of (i) in other words somebody who says well at least there must be a chance of me getting something otherwise I'm not going to participate.
Now (ii), out of personal malice, it's clear that that suggestion has been made in respect of Mr Mfalapitsa but there is absolutely no evidence other than just the suggestion. There's simply no evidence that any ill feelings were harboured for reasons that had nothing to do with the political context at the time. So Mr Chairman, Members, for these reasons I know I've been a lot longer than I had expected. I believe Mr Mfalapitsa should be granted amnesty as asked. In the affidavit it was only asked for the murders and the attempted murder. I leave it in your hands whether you want to - if you grant the order in wider terms for Mr Visser's clients, I would ask that you do it in the same terms for Mr Mfalapitsa, but we're happy with the murder and the attempted murder. Thank you Mr Chairman.
CHAIRPERSON: Yes, thank you Mr Jansen.
Yes, we are going to have to adjourn at the end of the argument of yourself Mr Tshabalala and Ms Thabethe until tomorrow so for that reason I'm actually going to call upon you to address us. I see it is lunch-time but I would like to see if we can't dispose of the argument before we actually adjourn.
MR TSHABALALA IN ARGUMENT: Thank you Chairperson.
I respectively submit that the amnesty applications as prayed for by all the applicants should be refused on the following reasons. The applicants, they failed the proportionality test as request in terms of Section 20 or the TRC Act. In facts it's a Promotion of National Unity and Reconciliation Act but for the sake of brevity may I call it TRC Act.
And the second reason will be the issue of full disclosure which is really brought about by the evidence before the Committee as it is. And on the proportionality test, why do we say that applicants failed the proportionality test? It is our submission that from the evidence this was not the case where the applicants were dealing with an immediate political thought. It has been testified that the victims wanted to be helped to go into exile to receive military training. They could probably received that military training in exile and be sent to some other structures of the organisation. In fact it didn't necessarily mean that when they were trained they will come and kill at will. One of the things which was said by Mr Mfalapitsa himself when he testified, he said he couldn't even point a gun to a person even when he came back. He said he couldn't shoot people and yet he received military training. So that in itself shows that people didn't go to exile to receive military training and come and kill at will, there were specific roles and policies of the organisations which people will have to adhere to.
CHAIRPERSON: But would the applicants on this question of the immediate political sled, have you got any submissions on the argument that they could engage in a what was called a pre-emptive strike, pre-emptive action or active action?
Have you got any submissions on that argument that the action was justified against the four people as a pre-emptive kind of action?
MR TSHABALALA: Well I don't have a submission on that. May I be allowed to continue? I might have to come back to it.
And the other reason about the imminent threat, the youths could not be - they were not trained youths, trained military personnel, they didn't have arms with them and the fact which I'm trying to emphasis there is that the youths did not have arms and they were not on the way to attack Mr Nkosi or the other councillor, they were merely yearning to go and join the ANC, they were not members of the ANC. They may have been sympathisers of the ANC by the mere fact that they were members of Cosas which it has been argued that it was aligned to the ANC. And the question of persuasiveness I think sees it as being suggested that they were, it was suggested that they be persuaded, you know, to carry on with their planned action. I think it was not summarily addressed if it really happened because Mfalapitsa did testify that she was treating the Musi family as his parents, you know, before he went into exile with the two Musi brothers, he used to visit the Musi home frequently. So I submit that he should of in fact used the parents of Musi to persuade Zandezile not to go ahead with his planned action. He never exhausted that alternative.
Furthermore ...(intervention)
ADV DE JAGER: Was this put to him that that could be an alternative?
MR TSHABALALA: I don't think it was put to him himself that that could be an alternative but I may, with your permission, I'm submitting it that he could of used it as a ...(intervention)
ADV DE JAGER: He should have thought about it?
MR TSHABALALA: Yes. Furthermore, there is no ready evidence that the Cosas Four were dangerous and were really involved in disruptive actions or activities at school level and even at the township level, there was no evidence that you know they were once caught in a protest March or in an attempt to burn a school or the other councillors' houses. It is very clear Chairperson and the other Honourable Members of the Committee that the victims were lured into this elaborate fact to be ...(indistinct) perhaps to the fact that the Musi family was more involved in the ANC for perhaps as we have suggested before, it was suggested again to Mr Mfalapitsa that he might have wanted to protect himself. In fact he suggested, you know, he was afraid of both forces and the manner in which the applicants executed their acts, we will regard it as very cruel and ...(indistinct) sees there's the law is there to deal with it, there was adequate legislation to deal with any threat which came from the Trade Union or any other organisation at the time. They could have been detained without trial for a long period, they could have been trapped with explosives or with possession of arms and be charged, or as I pointed out before that they could have used parental persuasive effect. For that matter it is respectfully submitted, Chairperson, that all alternatives to deal with these youths were not really exploited.
ADV GCABASHE: But of course, Mr Tshabalala, we've heard the applicants say that they did consider many of the alternatives that you note in your address and they considered that legal procedures would just not get them anywhere at all, it would put Mfalapitsa's life at stake and it would jeopardise the manner in which they did things. They had an explanation, they did tender an explanation for not going to court.
MR TSHABALALA: Yes, yes I concede that they did explain it but that doesn't really go far in your submission that you know they could have done more than what they purport to have done. For instance Mfalapitsa was a friend of the Musi family, he could have persuaded them or he could have talked to the mother of Zandizile.
It is our submission that the act of executing or the act of killing the three and severely injuring the fourth one, were not really proportional to the objective of protecting the State, therefore we submit that the Committee should not grant amnesty to all applicants as prayed for.
And on the issue of non-disclosure which is our second grounds of opposing amnesty is this issue which we submit is it's very broad about by the question that the discrepancies in the evidence which is before the Committee. We do aver that there is no common cause between the applicants themselves, that is Mr Visser's, my colleague's clients, between his clients and Mr Jansen's client Mr Mfalapitsa and there is no common cause again between applicants and Mr Musi, there were different versions which were given. If I may be allowed just to recap some of them? Mfalapitsa testified that at his first meeting Mr Musi requested him to facilitate his leaving the country and received military training whereas Mr Coetzee who testified that Mfalapitsa reported to him that the Cosas Four wanted training in order to kill Warrant Officer Nkosi and Mr Musi testified that he requested Mfalapitsa to organise for them, him and his comrades, to go into exile and again the other aspect which really doesn't form common cause is the question of the existence of a sketch. Musi testified that there was no sketch plan, there was no sketch plan or there was no plan or even a sketch plan to kill Warrant Officer Nkosi. Musi didn't know of Councillor Matsidiso. Mr Coetzee testified that when Mfalapitsa reported to him, reported that these kids are very serious and they even have a sketch plan to kill Warrant Officer Nkosi and he didn't mention Matsidiso.
Mr Mfalapitsa did testify that he was only shown a sketch on the day of the incident. It is very clear from this that there is a dispute of fact and it is submitted that because of this apparent contradictions or discrepancy of the facts we really don't know who is telling the truth and I respectfully submit that we will leave the resolution of this dispute of fact into the hands of the Committee but since such discrepancy materially effects full disclosure on that basis we will urge and respectfully urge the Committee not to grant amnesty as prayed for by the applicant.
Now I wish to come to the point of credibility, more especially on the question of my client. There has been suggestions that Mr Musi's evidence should be rejected as he is lying or colouring his account and the simple question I would like to ask is, why should he lie? The man went through a very painful experience, he was there, he was in the fire in effect and he comes here and lies. Now why should he do that? He is being harassed left and right, he has experienced the physical and emotional psychological or political pain. Yes, he has had to carry the burden of being suspected of having a hand in the killing of the three and that was not actually put to him, it was not put on the court but I was instructed that I should, with your permission, inform you that he has had to carry the burden of being a suspect of killing the other three and he was there, he was there, he gave an account as a person who was involved in the incident, he was there to come and help this Committee to know what happened on the day so the suggestions that evidence should be rejected I will respectfully submit that they should not themselves be accepted.
Much is said about his testimony about his relation with Mr Nkosi. We wish to grant the attention of the Committee that Mr Nkosi became more involved after being partially healed in the struggle against apartheid. He could have gone and killed Mr Nkosi after that but he didn't do that, they went to the same church. He had, you know, he had an access to Mr Nkosi at church, he never went ahead and killed as it's been suggested to Mr Nkosi. Yes, he did say that he had a cordial relationship with Nkosi, it didn't necessarily mean he was his friend, you can have a cordial relationship with other people but that doesn't necessarily mean that they are friends.
ADV DE JAGER: Mr Tshabalala, he admitted that he's been convicted of being in possession of dangerous weapons and ammunition. For what purpose would somebody have those weapons in his possession?
MR TSHABALALA: Well, it has been - I mean it didn't necessarily mean that when he had those weapons he was going to kill Mr Nkosi or any other person. It might have been that he's going to train other people.
ADV DE JAGER: To train other people to kill other people?
MR TSHABALALA: Well, we did ask him that if he belonged to the ANC and if he had joined the ANC and his organisation says at some stage you need to kill, he admitted that he will kill if his organisation said that. Well, with regard to the other witnesses and in particular Mr Mfalapitsa, it is clear from his evidence that he never made serious effort to dissuade the four kids from carrying out their intentions. So he actually led them into a trap in order to win the trust of his handlers. Well we have submitted that before the Committee so with regard to his credibility as a witness I would like to leave that point in the hands of the Committee.
And in the point of whether Mr Mfalapitsa has a locus standi to apply for amnesty, he has himself testified that he was not a member of the ANC, he has testified that he was not a security police at the time so he was somehow in between so we respectfully submit that he doesn't fall within the ambit of the Act because he was somehow in between so that should be one of the grounds of refusing you amnesty.
Chairperson, I rest my case.
CHAIRPERSON: Can I just raise one thing with you Mr Tshabalala? Have you got any submissions on the argument at where a member of the security forces act on orders from a superior or from somebody whom he or she would normally expect to be getting orders from that would sufficient to comply with the requirements of Section 22(b) and added to that in regard to the question of proportionality most people who are lower down in our hierarchy, not being the authors or the people who plan the action can't be disqualified where it turns out that the act was disproportionate?
MR TSHABALALA: Well Chairperson, just to canvass there's the first part of the application we didn't have - I don't have clear what you call submission on that, what was first was on the question of whether the acts which were meted out by the applicants who were proportional to the objective of protecting this act, we do acknowledge the fact that there are people who are - within the hierarchy, there was a hierarchy in this particular instance. We acknowledge that fact that there was a hierarchy and in fact they came forth people in the hierarchy while we have heard evidence that there is one person whose higher up in the hierarchy who didn't come forth. Well, there were no reasons given why he didn't come forth to this Committee. We acknowledge that fact that people who came and asked for amnesty but we do submit we'll stick to our guns and say the acts which were executed by the people at the junior level were not actually proportional to their political objective which was protecting the State because there was no real danger which was proposed by this four young kids to Mr Nkosi or to the State itself.
CHAIRPERSON: Thank you. Are those your submissions?
MR TSHABALALA: Come again?
CHAIRPERSON: Does that conclude you submissions?
MR TSHABALALA: Yes it does conclude my submissions.
CHAIRPERSON: Yes, thank you. Ms Thabethe, have you got any submissions?
MS THABETHE: No Mr Chair, I don't.
CHAIRPERSON: Thank you. Yes, Mr Visser you would need time to deal with certain issues before you are able to continue and I think you've indicated that you need a fair bit of time. We are through half of the day so I intended in any event to adjourn until tomorrow morning.
MR VISSER: Thank you Chairman that will be greatly appreciated if we could adjourn now.
CHAIRPERSON: Yes, we are going to adjourn the proceedings until tomorrow morning and we will reconvene tomorrow at 9 o'clock. We're adjourned.
COMMITTEE ADJOURNS
