CHAIRPERSON: For the record, it is Tuesday 11th May 1999. It is the continuation of the amnesty application of, applications I should say, of W F Schoon and others. In this particular instance we are still dealing with the incident concerning Sadie Pule and Take Five. Yes Mr Visser, I think you had concluded your case yesterday, if I'm not mistaken?
MR VISSER: That is correct Chairperson, yes.
CHAIRPERSON: Mr Mohlaba, have you got any witnesses?
MR MOHLABA: No, I've got no witnesses to call, Chair, thank you.
CHAIRPERSON: Ms Thabethe, have you got any witnesses?
MS THABETHE: No witnesses, Mr Chair.
CHAIRPERSON: Ms Thabethe, can you just give us an idea, what is the position of Mr Naude?
MS THABETHE: Mr Chair, Mr Naude was notified in terms of Section 19 and he is represented by Mr Bosman, Alex. He was here in the morning yesterday but I didn't see him in the afternoon. I called him on his cell yesterday after speaking to Commissioner de Jager. I left a message for him that you've got a concern that you don't know where he stands, but I did speak to him yesterday morning, he was in the crowd.
CHAIRPERSON: He has not submitted an amnesty application in respect of this incident, has he? I assume not.
MS THABETHE: No, he hasn't.
CHAIRPERSON: Thank you, Ms Thabethe.
Mr Visser, do you want to address us on this one? Are you ready? Alright.
MR VISSER IN ARGUMENT: Yes, Chairperson, I'm ready to argue. We will obviously refer you to the argument which we've presented to you at the initial stages of the hearings. We're not going to repeat it for obvious reasons, barring one aspect and that is that over the weekend, although as you can imagine I didn't have much time, I did very briefly look at the long line of authorities in regard to vicarious liability and I will draw your attention to certain quotes from some of those Judgments for in case they might be of use to you.
Allow me to commence, however, by asking you to regard the circumstances and to consider the application for amnesty in the present incident, against the background of the specific time frame in which it occurred, which was in the mid 80's.
We have heard, before the Amnesty Committees from various people, how the struggle had become extremely intense from approximately 1985 onwards. This incident finds itself in December 1986 and we want to ask you to bear that in mind, particularly if one has regard to the evidence given by Brig Loots and with reference to the statement attached to his amnesty application which we have summarised also, I'm sorry, including the bundle which we showed you yesterday, which we have summarised in his statement.
Chairperson, in that statement and in his evidence, he gave various examples of explosions and attacks by MK cadres, ANC supporters, which took place all over the country. During this period of time there was a marked intensity of such explosions. Also, he gave evidence to you in regard to the high activity of prominent people in Botswana and the role generally which Botswana played during the struggle. We would ask you to bear that in mind when adjudicating upon the amnesty applications, Chairperson.
Chairperson, coming to the South African Defence Force, the position that I was given to understand was that when the whole amnesty process was initiated, the SADF obtained legal opinion from senior counsel. I have seen that legal opinion, Chairperson. What it says is that all cross-border activities of members of the SADF were covered by either the Defence Act and/or International Law. There, specifically, one thinks about hot pursuit actions and striking at bases of the enemy in neighbouring countries as far as the International Law is concerned. The opinion went further to say that, that being thus the case, members of the SADF whose authority it was to protect the borders of the Republic of South Africa against all enemies, could not be held responsible even for such parts of their acts, omissions or offences which were committed inside the borders of the Republic of South Africa. I do not comment, Chairperson, as it is not necessary, on the correctness or otherwise of that legal opinion.
In fairness I may say that we, in one aspect, we do adopt a different attitude in our argument before the Amnesty Committees and I believe we are not certain whether we include it in the present argument, but we adopt the approach that at least for those acts, omissions or offences which were committed by any person within the borders of South Africa, he would be liable to prosecution and civil action within the country. We have the good example of Mr Marius Schoon, the late Mr Marius Schoon, who instituted civil action against Mr Craig Williamson for that which was done inside the Republic of South Africa. By all accounts, it is also the view of the Attorneys-General of our country, judging by the fact that many, many people, many members of the South African Police, have been required to make section 204 statements in regard to matters which were committed outside the borders of the country. But other than that, it's neither here nor there to criticise or to agree with the legal opinion which was received by the members of the SADF. In practice what this means is that for no incident which was not wholly completed within the borders of the Republic, did any member of the SADF ask for amnesty before the Amnesty Committee.
To illustrate this point, the incident of the Nietverdiendt Ten which was heard during the last session before an amnesty committee, the SADF did apply for amnesty because that incident was contained within the boundaries of the Republic of South Africa, but the moment we came to a case like the McKenzie bomb for example, where the bomb was triggered inside Botswana, they did not apply for amnesty which was perfectly in line with that legal advice which they received.
Chairperson we did, however, hear the evidence of the SADF in the Nietverdiendt matter and very briefly may I summarise for the benefit of the Chairperson and Commissioner Gcabashe, the gist of what he said? Commissioner de Jager, if I remember correctly, was a member of that panel.
Gen Joop Joubert was a General in the SADF and he was the commanding officer of Special Forces. Commandant Charl Naude and Colonel Joe Verster were his, if I may - I don't want to go into too much detail and frankly I don't know enough about it to do that, but they were basically second in command. What Gen Joubert told the Amnesty Committee is this. He said that at a certain point in time he took over the command of Special Forces and he was requested to draw up a plan in order to resist the revolutionary onslaught and particularly the plan had to show how Special Forces could more actively and more appropriately be utilised to assist the S A Police inside the borders of the country. Please bear in mind Chairperson, throughout all of what I am saying, that there was a clear delineation between activities of the Security Forces inside the country and those outside the country. Those outside the country, except in the single exception of Swaziland, was the domain of the SADF and inside the country was the domain of the South African Police and more particularly the Security Police and we referred you to the Simonstad Congress/Conference which was held, where this was confirmed.
Chairperson, Gen Joubert then said that he worked out a plan whereby divisions of Special Forces would specially be ordered to assist the Security Police in certain hot spot areas. Therefore, and as a result thereof, Col Joe Verster was ordered to assist in the Witwatersrand and Commandant Charl Naude was ordered, together with his members, to assist the Northern Transvaal Security Police. That later, Chairperson, was widened to the Western Transvaal because of the particular importance of Botswana and that at once explains how the Take Five and Sadie Pule matter came about.
Chairperson, Gen Joubert stated that his plan was approved by Gen Geldenhuys, that is Gen Jan Geldenhuys, and he said that what would happen would be that the Special Forces would have to work closely together with the Security Police and that the way it worked was that the Security Police would provide information upon which Special Forces would act, mostly outside the borders of the country but in some cases also inside the borders of the country. Chairperson, that is, I think, briefly the reason why you won't find any member of the SADF, be it Special Forces or otherwise, as an applicant before you in a matter which concerned covert action, or overt action across borders of the country.
Chairperson, it is perhaps apt at this stage just to make one thing very clear and Brig Schoon was trying to tell you that yesterday as well, that in all operations where members of the SADF assisted members of the SAP, it was always done under separate command structure. The members of the SADF would always fall under the command of their Commander and the same with the SAP. That is what Brig Willem Schoon was trying to say yesterday. It's difficult to understand for someone who hasn't been involved in this, including myself, but apparently the way it worked is that information would be gathered and would be received by the Security Branch and particularly when an operation in regard to that information involved cross-border action, Special Forces would be contacted and they would take over and under their particular command, that operation would be carried out in terms of the information received. I think you, Mr Chairperson, asked a question which is relevant, a very relevant question, "but would you have suggested" you asked Loots, "to Charl Naude that you thought that Sadie Pule and Take Five were to be eliminated?" "Yes, yes, that can happen, it can be a suggestion, yes clearly" and he said so and no doubt he would have suggested to Charl Naude because he already suggested it to Brig Schoon. So that would have been the reason why he went to Charl Naude, is to say, "we know about these two people, they are prominent people, they give us problems, we want them eliminated", but at the end of the day the decision lay with Charl Naude. That we must understand.
So, Charl Naude could either have said, "we're not going at all, we're not interested" or he could have said, "we'll go but we'll do something else", but by all accounts what happened here must have been that Charl Naude agreed with what was proposed to him because they went and they attacked the house, attacking the house in such circumstances that it could only have meant that they intended to kill the people inside the house and that's exactly what happened. A man and a woman were the targets, that his people knew, they came back and they said a man and a woman had been killed.
Chairperson, I would like to refer you now to Exhibit O. This appears to be, in our submission, a very important compilation of documents because it gives you information which we didn't have before and which may be vital in regard to identification of the deceased, etc. What we have Chairperson, starting off at page 1 of Exhibit O, appears to be a cover-sheet regarding a certain Aaron Makwanazi. If you go one line down you will see "nicknames, aliases Lawrence Tshabalala/Take Five Tshabalala, in exile." This statement Chairperson, is not dated. I'm sorry, date of the interview, I'm sorry, the 14th of May 1996, I missed that. It's on the left-hand top side of page 1. I was going to submit to you that clearly it refers to a point in time when amnesty applications had not been filed because, looking at the statement it is clear that it is not drafted with the knowledge of what the present applicants say in their amnesty applications.
What is important about this statement Chairperson is that, in our submission, it corroborates the evidence of the applicants. We start off at ...(intervention)
ADV DE JAGER: It could have been that amnesty applications have been filed, but they were still secret in the sense that there was no hearing and there was no decision by the commission that the contents could be revealed. It may, in some cases, be that there was a decision that the contents of an application could be revealed, but it looks as if in this case, if there were any applications, the contents were not revealed to the ...
MR VISSER: In point of fact, Chairperson, if you look at the bottom of page 5, you'll find the very best evidence that that was so because Take Five here says that he suspected Lambert Maloi for having sold him out, so it's quite clear that he had no knowledge of what the present applications were going to say.
Chairperson, if I may return to page 3, paragraph 2, it's clear that Take Five joined Umkhonto weSizwe and left for Zambia. He stayed away for 6 years and then he went back to Botswana in 1986. He said in his statement somewhere on the 16th, I think it was. Yes, in the next paragraph - 16th of December 1986. He refers to his girlfriend, Sadie Pule in paragraph 5 and in paragraph 6, well the relevance of paragraph 5 is that the meeting was held between him and his relations and then in paragraph 6 he decided on New Year's Eve to leave. He says that through the past weeks he had seen strange people who were monitoring the house where they were staying. They drove cars with tinted windows with South African registration plates he says and his guests left on the 28th of December, except for his wife and an old lady "who I knew by the name of Terra" We will come back to that. Chairperson, he describes Terra as a person who came originally from Soweto who was a family friend and he says that in paragraph 7, "I thought that an attack on the house would be a good way for the South African Security Forces to start the new year." So he left that New Year's Eve by bus for Gaberone at 18h00. Now that ties in perfectly it would seem, Chairperson, with the information which Modise had received from his source, that they were there and they were going to stay there and apparently when they arrived there, they had left. He then says, "The next morning at 7 o'clock on the news he heard that there had been an explosion in Ramotswa and that three unknown people, a man, a woman and a child had been killed.
Now, if I may pause there for a moment. There appears to be no evidence at all from any other source which corroborates this piece of evidence. The evidence which we have, Chairperson, and which is again confirmed by this document, except for this one statement, was that the man and, rather a woman and possibly also a man might have been killed. If one looks at Exhibit O, to which I will refer you in a moment, it seems that only one person was in fact killed. Chairperson, in paragraph 16 he refers to this Terra as, he says - bear with me a moment Chairperson. He says "A Botswana woman who we later discovered had been an informer, also knew that I was meeting my family at the time" and a name is mentioned. Now that may refer to the very same informer that Mr Modise was talking about.
Chairperson, if I may draw your attention to page 9, we say, "It was quite clear that Take Five knew that he was a prime target of the Security Forces", where he says "The victim had a house next to the South African border. She used it as a safehouse for herself. Botswana had a lot of ANC cadres." The next, under the question "Why do you think this happened to the victim?" "She was at the wrong place at the wrong time, I do not think they wanted to kill her, they wanted to kill me" and under the question "What do you think motivated the act?" he says "Somebody wanted to kill me" which is precisely the evidence before you Chairperson.
Mr Chairman, if I then may take you to page 14. There you find a death certificate of one Mabonyana Terro Sebopha. Now, I draw your attention to the similarity of Terro and the Terra to which Take Five referred in his statement, and I would submit to you that it's quite clear he's referring to the same person. What we have here at page 14 appears to be the only evidence, which originated from Botswana, of whoever may have been killed at that house on that particular day and we say, Chairperson, that it is safe to assume that she was the person there, if you look at the cause of death at page 14 under paragraph 8 you will see that she died as a result of haemorrhage and shock due to firearm and blast injuries.
So that must have been the person and it would be quite safe to assume that that is so.
As far as the other person is concerned Chairperson, we have, if there was a man also involved, we have no information about it.
We have already referred previously to page 15 and I wish to do so again. It would appear that the day after, judging from the newspaper report, the day after, that would be on the 1st of January 1987, the security forces, the Botswana Defence Force rather, went in to this place and found ammunition there and a grenade exploded, as a result of which five of the Botswana Defence Force members were injured. At page 16 there is another article from the Botswana Guardian this time and in the right-hand column, Chairperson, the second paragraph reads "Cordelia," this is the person whom they then apparently identified or suspected to have been an informer, "it is claimed, told her ANC interrogators in Lusaka" If I may just stop there, Chairperson. Apparently she was taken to Lusaka, this particular person and she told them "The day before Abraham Pule left Botswana, I phoned Modise and Smith to inform them. Modise later told me that Abraham got arrested at a road block, having weapons." She also allegedly pointed out Sadie Pule's house in Tokweng, I think it reads, to South African agents, the house which was eventually attacked during the Gaberone June 14 raid a few weeks later. Well that we know isn't so, we know it was at the end of the year, December 1986. Thereby I don't want to say, Chairperson, because I don't know, that during the Botswana raid, this house might not have been attacked, but it would be very strange if it happened because the Botswana raid of the 14th of June 1986 was directed at Gaberone and not at a little village next to the border. Sorry, it's not 86, it was 85, June 85.
Chairperson, I draw your attention then to page 20 where corroboration details are noted and, in the middle of the page under or next to the heading Summary, you will find "An Aaron Makwanazi's testimony is made on behalf of an ANC supporter known to me as Terra. She was killed when the SADF attacked the house she was in at the time in a cross-border raid. It was a safehouse used by ANC people, but according to the deponent she was not the prime target, if at all she was."
The relevance of that, in our submission Chairperson, is that the applicants in their amnesty applications assume that the person that had been killed was an innocent bystander as it were. It now turns out as an objective fact that she was in fact running a safehouse and assisting the ANC.
Turning back, Chairperson, to page 4 that is also confirmed in paragraph 9 where Take Five says "We stayed in a house of locals in Gaberone. The house in Ramotswa belonged to the old lady. She was a well-known ANC supporter and used to be an activist." Chairperson we would submit to you that it makes the application, it makes the case of the applicants much stronger knowing this evidence rather than considering the person who died as a completely bystander.
Chairperson, page 21 that very information is again confirmed where towards the bottom it says, "he only knows Martero who was a veteran of the ANC who had then settled in Botswana". Then there's reference Chairperson that a statement was given to the Human Rights Violation Committee by the family of the deceased. We haven't seen that statement, Chairperson, we don't know what is in it and we therefore can't press you on that. Page 22 is a repetition, page 23 is a repetition of what you've already had and that takes us through Exhibit O. We say, Chairperson, that on the strength of Exhibit O, the evidence of the applicants before you have been corroborated. It makes their evidence particularly trustworthy in view of the fact that at the time when this document was presented, Loots had already given his evidence and had already been cross-examined and had already been asked questions by the Committee and we ask you therefore to accept the evidence of the applicants as being truthful and trustworthy.
ADV GCABASHE: Mr Visser, the one thing I understood Mr Loots to say was that the two, Pule and Take Five, were going to spend the night, 'hulle gaan oornag', that's the information he was given. How do you relate that to what Mr Modise said, that these are refugees who had been living there, which is a totally different thing? Is there anything we should make of that? Did he have any reason to believe it was 'oornag-ing' rather than people who had been living there?
MR VISSER: Chairperson, I was going to submit to you that nothing turns on that point. It may well be that Sadie Pule and Take Five had been staying there. In fact there is some corroboration for that view to be found in Take Five's own statement.
ADV DE JAGER: In the statement he says he's been staying there since the 21st of December.
MR VISSER: Yes, that's the corroboration I'm referring to. It makes no difference, here or there, whether he had or hadn't, what was of interest to Loots was that they were going to be there that night. That night. It may be that Modise didn't tell them that, as far as his information is concerned they had been living there. It may even be that the informer didn't tell him that, that the informant simply told him that he was, they were going to be there that night and that the knowledge which he has about them having stayed there before might have been knowledge that he may have gained later, we don't know. But in a greater scheme of things, what was important here was the fact that they're there and they were going to stay there, 'oornag' there, that night. Now it may even be that Modise gave that evidence to Loots and he might have forgotten about it, we don't know.
ADV DE JAGER: It may even be that the informer wouldn't know they've been staying there from the 21st of December.
MR VISSER: Those are all possibilities. The question is, is it material to your deliberations to decide on whether to grant or refuse amnesty? My submission is no, it isn't, Chairperson. It certainly isn't a material contradiction from the point of view of credibility is concerned. That can never be said.
ADV GCABASHE: And one other aspect arising from Exhibit O, the cars that had been observed by Take Five, we haven't heard any evidence of that at all from your clients, from the applicants, so we can safely assume that they know nothing at all about that?
MR VISSER: Yes, Chairperson, they know nothing. We didn't lead the evidence, but they know nothing about it. There was indirect evidence about the same issue when they said, I think it was Loots that said that he now knows about bicycles, two people on bicycles, but he said it was definitely not their people. So they know nothing about that, Chairperson.
CHAIRPERSON: Mr Visser, your clients have indicated quite clearly that their action was directed against Sadie Pule and Take Five, that's the people whom they intended to eliminate. It turns out that Naude and his men went to go and kill somebody totally different. In fact, your clients have conceded that this was just totally out of sync with what they had in mind, that this woman got killed. They didn't know her, they never regarded her as a target. Under those circumstances, have your clients made out a case vis a vis this deceased?
MR VISSER: Well clearly Chairperson, clearly. The question is whether this act was associated with a political objective and it was. You can't now ex post facto go and say that when they did the operation an innocent person was affected, whom they never intended to affect and therefore they could not have had a political objective in regard to that particular person. The best example perhaps which I can give you is the Brian Mitchell case. In that case Brian Mitchell intended, together with his members, to attack a particular house in, terms of information which he had, where he expected members or supporters of the ANC to gather and the purpose was to attack the house and to kill everybody inside the house. You will remember that case very clearly. What happened is they attacked a completely and entirely different house altogether, there was a mistake, and I think 7 people that were killed there were never targets and of course he was granted amnesty because his motive was that it was a political act, objectively it was an act associated with a political objective for other reasons. The point here is you can't take the victim ex post facto and say because he or she was not a member or supporter of the liberation movement, therefore your act does not comply, your act, omission or offence, does not comply with the Act. You can't work it backwards. It's an objective inquiry in terms of Section 22(b) and it's a subjective inquiry in terms of Section 23(a), with respect, so the answer is a crisp yes, Chairperson.
CHAIRPERSON: Are you suggesting that you can go out and just slaughter innocent people and get amnesty?
MR VISSER: But that's what happened in the Church Street bomb, in the Krugersdorp Magistrates Court bomb, in all cases where bombs were planted, that's exactly what happened. That has always been considered...(intervention)
CHAIRPERSON: Yes, you see, I can understand a situation where you act against a political enemy and in the course of that action innocent people get killed or injured, where your action is directed against an enemy, but I have great difficulty in understanding, perhaps I'm not hearing your submission correctly, I've got very great difficulty in understanding and accepting that you can go into any place and kill innocent people who have absolutely nothing to do with your political struggle, or your military struggle and then you qualify for amnesty.
MR VISSER: But Chairman you've just put the proposition to me quite correctly. It depends on what your purpose is. They were going to attack the enemies of the South African government, Sadie Pule and Take Five and in that operation ...(intervention)
CHAIRPERSON: But they didn't do that. That is the point and that's my difficulty.
MR VISSER: But you can't only consider amnesty to be granted only in cases where the operations are successful. There are many hundreds of operations that were not successful.
CHAIRPERSON: Yes, no I accept that. I accept that. The difference that I'm trying to draw is between a case where you are in fact acting against your enemy and a case where you're not, you're acting against somebody totally unrelated to your struggle.
MR VISSER: Are you then saying that the fact that you thought you were acting against your enemy is irrelevant?
CHAIRPERSON: Well, it might be, it might be a fact that gets considered, but it can't - my point is, how can it be the determining factor? You slaughter innocent people and then you come after the event and you say "well, you know I really thought that they were my enemy and I killed all these women and children"
MR VISSER: But Chairperson, these are the very instances for which amnesty has been granted in the past.
CHAIRPERSON: Well, I don't know about those cases. I'm not sitting on them you know, I'm sitting on this one here. So we've done a bit of this debate you know.
MR VISSER: Chairperson, yes, I'd hate to go through it again but the point is here we know it wasn't an innocent bystander that was killed.
CHAIRPERSON: Yes, ex post facto, now in this hearing. This comes out by the way, it could never have weighed on the minds of the applicants.
MR VISSER: No, but as an objective fact Chairperson,
as an objective fact it appears that ...(intervention)
ADV DE JAGER: Mr Visser, I don't think that could be the criteria, but if I would plant a bomb in a Wimpy Bar and my target would be that it would be visited by soldiers. Well I'm planting the bomb near the Wimpy Bar and in fact the soldiers didn't even visit the place on that day and four women were injured in the explosion, or innocent people walking by get injured, would they be entitled to amnesty?
MR VISSER: Well, Chairperson, those - that's what I'm trying to say and again we're back on the question as to whether this Committee should take note of what has happened in other amnesty applications. Magoos Bar Bomb is precisely the example which Commissioner de Jager gives me and of course that's correct. If you look at the presentation of the ANC before the Human Rights Violations Committee of the TRC, you will see that they make that point over and over again that, particularly since 198,5 they came to realise that their operations, although they were directed at the "enemy"
...(end of tape) exactly that situation where, on all the information that you have and that you believe to be trustworthy, you launch an operation and it turns out that something happened in between, since you got your information and the time when you execute your operation. I have difficulty in drawing a distinction by saying that that particular case, merely because things went wrong, you now can't be granted amnesty because you were not acting against your enemy. It is more confusing where we now as an objective fact know that they person who was killed was in fact the enemy, although someone else and even in our criminal law as far as murder is concerned, when one talks about operatio ictus, the identity of the person that you wanted to kill is irrelevant. What is relevant is the result, did you kill someone or did you not? The result here is that a person, who was in fact the enemy, was killed although her name was not Sadie Pule or Take Five and with great respect, Chairperson, it could never be a consideration to say well now that we know ex post facto that an innocent bystander was killed, for example as happened in Brian Mitchell's amnesty application, therefore you're not entitled to amnesty.
We submit Chairperson that that is one of the things that must have happened on numerous occasions for which people are asking for amnesty and certainly, there's nothing in the Act that we read in the Act, that excludes such a person from obtaining amnesty.
CHAIRPERSON: Yes, I've got that submission, Mr Visser.
MR VISSER: Thank you, Chairperson.
Chairperson, to round off, there's not much point in discussing the evidence of each of the applicants. The evidence is fresh in your memories and you saw them, you heard them. In this particular case all four of the applicants acted under orders although Brig Loots said that it was his suggestion to Brig Schoon and it would probably have been his suggestion to Charl Naude that these people be killed. It was, at the end of the day, Brig Schoon who gave the authority of the go-ahead. The go-ahead was, speak to Charl Naude and go ahead with your plans.
Chairperson, Du Preez Smidt, it is difficult to understand why he was there, but he was. He was sitting at home on Old Year's Eve and he was summoned up. He really did nothing except associate himself with the operation for the reasons which were mentioned.
CHAIRPERSON: Yes, I mean in a sense that seems to be the position of all your clients really because they're really associating themselves with the actions of this Special Forces group because they, although they felt that the operation was successful in the sense that Sadie Pule and Take Five had been eliminated, you know eventually when it turned out that they were not the people who were eliminated and although there was a sense of disappointment in a way, they accepted, they associated themselves with the fact that there might be people killed.
MR VISSER: Yes, that they all gave evidence and of course it would have been very strange indeed if they hadn't said exactly that. But yes, correct, when Special Forces went in it was outside the control of the members of the Security Police who gave evidence before you and when they came back, well of course they just had to accept whatever happened, it was out of their control and that's the reason why they're before you, Chairperson, to ask for amnesty.
Mr Modise is slightly different as far as what he had done, in so far as he was the one that conveyed the information and who arranged for a meeting between his source and Brig Loots and Lieut. Weerman. But that, in a nutshell Chairperson, is, with great respect, the case and we submit to you it's a strong case for amnesty.
As far as proportionality is concerned, Chairperson, we know that the South African Police could not legally go into Botswana and arrest anybody, that option was not an option which was available. In any event, even if one had suggested to Charl Naude and he had accepted that an attempted arrest should be executed, it would have been extremely dangerous where people are in a house, where it is assumed and expected that they would be armed, to effect an arrest there particularly in a strange country and particularly in a village. So, seen from the viewpoint of the harm which was done and would have been done especially by Sadie Pule, we submit, Chairperson, who was more or less a permanent operator in Botswana, and to some extent Take Five and we know that he operated ex Lusaka, not specifically ex Botswana, being part of a broader picture, we say Chairperson, if one bears in mind the arms and ammunition smuggling, the infiltration of trained people into the country to come and perpetuate the revolutionary war, we say that the action against these two people was proportional to the objective sought to be achieved and that would have been to neutralise them.
We say, Chairperson, with respect, that had that happened, it is logical and we submit that you can take account thereof, that the organisation and structure, practical logistics of the ANC in Botswana, would have been seriously affected. That evidence was also given by Mr Marius Schoon in the amnesty application regarding the attempted murder on Mr Marius Schoon where he said that if the operation against him had been successful it would have been a serious setback to the ANC as far as it's structures and infiltration routes in Botswana and from Botswana were concerned. Would you bear with me a moment Chairperson?
Chairperson, my attorney agrees that I've worked hard enough this morning, so I can then wrap it up by referring you to page 2 and perhaps if we can just consider each of the applicants - I'm sorry, page 2 of what yes, page 2 of Exhibit L, I'm sorry Chairperson - to consider what each of the applicants would be entitled to ask for amnesty for. The first would be Conspiracy to Murder, which would apply to all the applicants, Murder of Mrs Sebopha or any other competent verdict in regard thereto, Malicious Damage to Property is the third one, the fourth one, Chairperson, relating to regulations and/or statutory provisions relating to border control, leaving the country unlawfully etc, we would submit that would only apply to Mr Crause and Modise. 'Begunstiging voor en na die daad' an accessory, thank you Chairperson, an accessory, that would be applicable, Chairperson, and then clearly...(intervention)
ADV DE JAGER: Mr Visser, I don't know but can I be prosecuted for conspiring to murder, then being found guilty of conspiring, be found guilty of murdering, be found guilt of being an accessory after the fact...(indistinct) murder, wouldn't it include everything?
MR VISSER: Chairperson that's the rump and we have great difficulty with that. We don't know what an Attorney-General might decide, what he might decide to do. We say that he can charge you only as an accessory, which will mean that you'll be found guilty in effect of murder, we know that, but why should one run the risk of taking the chance that the Attorney- General will in fact charge you with murder?
ADV DE JAGER: But once he's been granted amnesty for murder, can he charge you for anything else then?
MR VISSER: We believe not, Chairperson, we believe not, but should one take a narrow view of this? Each of these instances which we list here constitutes a criminal offence of which a person may be charged. That is the only reason why we've set it out and it really is at the request of Mr de Jager in a previous amnesty application for us to do so, because we believe Chairperson, with respect, but we may be wrong, that if amnesty is granted for any act, omission or offence which constituted an offence or a delict in regard to a particular incident, that would be sufficient. That's what we thought all along and if you looked at our amnesty applications and the way they've been drawn and the way we have brought amnesty applications before Amnesty Committees, that's the way we did it, but then it was brought to our attention, and it was Mr de Jager who brought it to our attention, that sometimes the Amnesty Committee has difficulty in determining how far they should go. What the framework of the order must be to prevent a person who obtained amnesty from not coming later and saying, but hang on, all of this was connected to this amnesty application. That is why we have been trying to narrow it down as much as we possibly could.
ADV DE JAGER: I've got no difficulty with that and it's only I think once you've been granted amnesty for murder, then you can't be charged with conspiring to do the same murder or being an accessory to the murder.
MR VISSER: What about defeating the ends of justice, that would be a separate offence?
ADV DE JAGER: But that's a different thing because that would be connected with an affidavit for instance, or something else, it's different, that wouldn't be a splitting of charges. I'm talking about the splitting of charges here, it's no great concern, I understand what you mean and I am satisfied, so let's not take time with debating it, because I don't think it's so relevant.
MR VISSER: Well, if it's irrelevant, that's all I have to say in argument. Thank you Chairperson.
CHAIRPERSON: Yes, thank you Mr Visser. Mr Mohlaba, any submissions?
MR MOHLABA: Thank you Chairperson, I will be very brief.
MR MOHLABA IN ARGUMENT: Mr Chairperson, the family of the deceased Maponyana Terro Sebopha feels that there is no evidence, or sufficient evidence which suggests that she was a legitimate target. At the time of the commission of this offence...(intervention)
ADV DE JAGER: Mr Mohlaba, getting at that, could you point out to me where in the Act it's stated that a target should be a legitimate target and where is a legitimate target defined?
MR MOHLABA: If Chairperson, I can ...(intervention)
ADV DE JAGER: In the Act it should be a supporter or a member.
MR MOHLABA: Certainly, Chairperson, if I'm allowed to continue I think it's going to tie up with what comes subsequently, if I may.
CHAIRPERSON: Yes, Mr Mohlaba, don't let the questions take you out of your stride. You can make a note of them and respond if you want to, but you present your argument as you have been instructed to do. Carry on.
ADV DE JAGER: If you don't want to reply to a question, you need not do so either.
MR MOHLABA: Thank you, Chairperson. The family feels that at the time of the commission of this offence, the political activities, or the political loyalty of the deceased, if any, was not known and further that even though it may have emerged ex post facto that she was an activist or she has created a safehouse for the MK cadres at her home, that was not the state of the mind of the applicants at the time of the commission of an offence, which I submit is relevant for the purposes of the Act. So her killing at that early hours of the morning, because the state of the mind of the perpetrators at that time, was not an act associated with a political objective. The fact that it emerged thereafter that she was an activist or a supporter of the ANC is besides the point. With regard to the attempted murder on Take Five and Sadie Pule, the two clients of mine feel that the omission, or the refusal or failure by Mr Modise to disclose the identity of the informer while testifying, renders him not to qualify for amnesty on the basis that there was no sufficient disclosure of all relevant facts. Thank you, Chairperson.
CHAIRPERSON: Thank you, Mr Mohlaba. Ms Thabethe have you got any submissions?
MS THABETHE: No, Mr Chair.
NO ARGUMENT BY MS THABETHE
CHAIRPERSON: Thank you. Yes Mr Visser have you got anything else?
MR VISSER IN REPLY: Chairperson, by way of very brief reply, I think Commissioner de Jager has already pointed out the obvious, the requirement set by the Act in Section 20, 22(b) and the others refer to the supporters or members of a liberation movement and no more than that. My learned friend makes the point that the state of mind of the applicants, because that was directed at the killing of Take Five and Pule, cannot now be superseded by the objective fact that the person whom they did kill did in fact run a safehouse. Well, Chairperson, with respect, there are objective and there are subjective elements which one has to bear in mind.
ADV DE JAGER: Mr Visser, the contrary, suppose they would go, their intention was to murder a cattle thief, nothing to do with politics, and ex post facto it's proved that he's been an activist or a supporter, they could never get amnesty then, so why should the opposite, isn't it relevant what ex post facto happened?
MR VISSER: That is precisely my argument, one can't work it in reverse gear. One has got to look at the evidence which leads up to the incident and the incident. You can't say now that all these years have passed and now that we've got all this information, we can now come back and say hang on, as it turns out now, it was either an enemy or it wasn't. One can't place that in the scales when you weigh up whether it was in fact an act associated with a political objective, Chairperson.
ADV DE JAGER: So the fact that it proved that the lady was in fact connected with the ANC doesn't matter at all.
MR VISSER: It really takes the matter no further, Chairperson. ...(indistinct - mike not on)
MR VISSER: Yes, of course, except that the evidence which you heard was that the security police had known before, or some time before that it was a safehouse, in that sense that of course reflects on their state of mind and on the act.
ADV DE JAGER: But there was no evidence that it was ever their motive to kill her because she kept a safehouse.
MR VISSER: That's absolutely correct, Chairperson. We're in complete agreement, although it appears to be an aggressive agreement, with each other. We're in complete agreement with each other, Chairperson. Yes, my submission is simply that you can't take ex post facto matters and impose them on the relevant facts as they lay before the eyes of the actors at the time and say therefore your act, or omission, or offence was not or was associated with political objective. Chairperson, my learned friend made a point of not fully disclosing because of the refusal to disclose the identity of the informer. Chairman, we have had this argument over and over again. We have had a very long argument again in Durban. The Amnesty Committee, I wasn't aware that a decision had been made by the Amnesty Committee, that certainly in argument and in remarks having been made by Amnesty Committees, the Vice Chairman of the Amnesty Committee Judge Wilson, etc. is quite clear that it cannot be expected that any person who was an informer's identity ought to be revealed because of the very dangers it would hold for him and his family. In any event the identity cannot be stated to be a relevant fact in this application. Who she was makes absolutely no difference, or he was, makes absolutely no difference to the facts of the matter and the grounds for amnesty which were advanced before you.
CHAIRPERSON: Yes, in this particular case the submission around failure to make a full disclosure might be a bit of a tenuous one, but speaking for myself, I'm not aware of any, because I hear you referring to remarks that are made by a member of this Committee, I'm not aware of any decisions either way on this question of informers and disclosing their identities and things, it's something that doesn't affect us directly at this stage, but I feel compelled to just make that remark myself, you know, I trust that remarks that are passed by some of my colleagues on the Committee doesn't lead to wrong understanding out there.
ADV DE JAGER: But there was a decision by Judge Mall on this point and it was argued at the Commission even, so I can't stand in for what other people would know or not know.
MR VISSER: Yes, Chairperson, I personally, like yourself, wasn't aware but my attorney tells me I'm wrong. He says that there was in fact a ruling and it was in reply to an argument by my learned friend from Pretoria, Roelof du Plessis.
CHAIRPERSON: So there was a ruling in the Hechter matter that for the purposes of that particular matter there was no need to disclose the identity of an informer there, but that related to that particular matter. In fact the ruling says that for "present purposes", in other words it was limited to that particular matter and I think that is perhaps what should be understood arising from that ruling.
MR VISSER: Well Chairperson as you stated correctly, in our submission it really doesn't affect us in this present case. Nothing turns on whether that - it would have been different had the informant played a different role. We had a case in Natal for example where the informant himself was used to lure a person out of the country, well then it becomes relevant. He becomes a co-perpetrator, yes.
Chairperson I forgot - I said I was going to and I forgot- to refer you to some of the authorities. What I have done is, they are long cases to read, difficult cases to read but I have simply made a few extracts in order to support my submission to you last week which was that when you consider whether a man had authority to act in the way he did, the question is whether that which he did was associated with his duties. I submitted, his duties, but apparently I'd forgotten that the cases actually take it further, they say which are associated with his employment. Chairperson, the first case that I can refer you to is Mkize vs Martens which is a matter reported in 1914 AD 382, a Judgment by their Lordships Lord de Villiers, Chief Justice Innes, J A Solomon, J A Maasdorp and de Villiers A J A and the head note says this, Chairperson, it refers to the key words, the fly note is "Principal and Agent, Master and Servant, Negligence of Servant, Course of Employment." Now Chairperson, may I just repeat that the problem which we will have in applying these dicta is that the approach is from the other side, the approach is to determine whether there is liability with the master. What we are trying to say is from the point of view of the perpetrator, could it be said that he had authority to do what he did? So it's really the mirror image of what we are trying to discover, but it's helpful to look at how it's been approached if you keep on reminding yourself that it's approach from the opposite direction. The head note says that- may I just very briefly say that what happened here is two boys were told to guard an ox wagon and the oxen while the person who was the servant of the master went off to a certain kraal to go and drink some beer and when he came back he found that the children had made a fire to make food and they had burned down a farm, an adjoining farm to the road and it says "It was held that although the boys did not usually" in other words it's not part of their employment, usually, "make a fire and although they had no special authority or duty to make a fire on the day in question it was not outside the scope of their employment to light a fire for the purposes of cooking their food when they needed it during their master's absence from the second out span and that the defendant was liable for the damages done." His Lordship Justice Innes, page 389, says this,
"But perhaps the most satisfactory statement of it",
we're talking about the tests now, Chairperson is that given by
Pollock on - 8th edition page 78, founded upon a pronouncement
of Chief Justice Shaw of Massachusetts, and he quotes -
'I am answerable for the wrongs of my servant or
agent, not because he is authorised by me or
personally represents me but because he is about my
affairs and I am bound to see that my affairs are
conducted with due regard to the safety of others'."
He's about my affairs. What we say is that very specifically in the case of all of these policemen, they were about the affairs of the government, Chairperson.
...(indistinct - mike not on)
MR VISSER: "I am answerable for the wrongs of my servant or agent, not because he is" - you don't have to write it down Chairperson, if you're interested I'll go back home tonight and I'll print this out for you and I'll hand it to you tomorrow.
"I am answerable for the wrongs of my servant or agent, not because he is authorised by me or personally represents me, but because he is about my affairs."
And then he goes on Chairperson to say,
"However that may be, we may for practical purposes adopt the principle that a master is answerable for the torts(?) of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interest and purposes and outside his authority, is not done in the course of his employment even though it may have been done during his employment."
Now why that is interesting is, that is precisely the exception which the Act makes, done for your own purposes and it is in line In fact the Act is really in line with the also with the common law, is what strikes one with this particular quotation.
Chairperson, in the same Judgment at page 394, Solomon J A said this. He said
"The master therefore should be held liable for the negligence of the servant if the latter causes injury to a third person in doing his master's work, or in the language of the English authorities, in the course of his employment."
So again, that which he does in the course of his employment he is considered to have been authorised to do by the master, whether he was in fact so authorised is irrelevant. It goes on, Chairperson,
"If however the act which caused the injury was something outside the master's work, then the master is not liable"
and all sorts of tests for that had been evolved over the years; on the frolic of his own, whether the act was in time and space so far removed that it cannot be said or it can be said that it was done - I'm not going to go into that. We're just dealing with the principle of the matter. Chairman, in the same Judgment at page 400, his Lordship Mr Justice de Villiers acting as he was at the time said,
"Now the law that has been adopted in the case of April vs Pretorius 1906 TSC page 827 is thus laid down by Pothier on Obligations,"
he refers to Evan's translation paragraph 453,
"It is not only by contracting that managers obliged their employers, whoever appoints a person to any function is answerable for the wrongs and neglects which his agent may commit in the exercise of the functions to which he is appointed"
and he relies for this on the digest etc and he quotes Chairperson from page 456, ...(indistinct) and he says,
"Masters are likewise answerable for the faults of their servants when they have not prevented them having it in their power to do so"
and one immediately thinks of what we hear in amnesty applications where the masters must have known about things but did not prevent them. They are even responsible for those which they could not prevent if the servants committed them "in the functions to which they were appointed, for instance ...etc" and he gives examples. Again Chairperson, we say, precisely in point of what our argument is here, that in terms of Section 22(b) when you talk about authority the question is, did they commit that act, omission or offence within the scope of their functions as a policeman? So the point here Chairperson is that authority is very very widely interpreted.
In fact the English cases make very little, draw very little distinction between authority and in the course of his employment, they regard it as synonymous and this has actually been stated by one of the Judges in this particular case.
Judge Wessels at page 143 -I'm sorry I'm referring to a different case. Chairperson, the second case which is relevant is Estate van der Byl vs Swanepoel, which was a 1927 Appellate Division case, at page 141 where Judge Wessels, Judge of Appeal says at page 143, he refers to Mkize vs Martens inter alia and a few other cases and he says that - he's talking about the test and whether the master will be liable, he says,
"The fact that the act may have been illegal in itself is no defence to the master, illegality is only relevant on a question whether the act could have been within the scope of employment. The question is whether the driver was on a frolic of his own."
So, the way we read the Judgment it says that having gone through all these tests, it goes a step further and says even illegality of the action is no excuse. So, Chairperson, if, in the present instances of amnesty and this could only have been what the Legislature intended with the promotion of National Unity and Reconciliation Act Section 20 is that even knowing that what we're dealing with is an illegal act makes no difference as long as it was something that was done, not for personal gain or ill will or spite but in the line of the duties which were performed by these policemen. That's the point I tried to make last week, Chairperson.
Then there's Feldman (Pty) Ltd vs Mall, Chairman that is a deviation from a prescribed route by the driver who was - I'm sorry didn't I give you the reference? I'll print it out, but it's 1945 AD 733. I'm sorry Chairperson. He went on a deviated route and the questions of liability were again discussed with special reference to the case of Union Government vs Hawkins, you'll see it on what I print out for you. Chief Justice Watermeyer said this, he said,
"In English Law a master is legally responsible for the wrongful acts of his servant if such act is done in the course of his employment or as the principle is sometimes expressed, if such act is within the scope of his employment."
And then Chairperson he says this,
"There are passages in the reasons of all the learned Judges who gave Judgment in the case of
Mkize vs Martens which either expressly or impliedly state that our law on the subject of a master's legal responsibility for the wrongful act of his servant is the same as the English law but the expression 'scope of employment' is apt to be misleading".
As I said just now, Chairperson, unless one is alive to the fact that the words 'scope of employment' are not equivalent to the words 'scope of authority'. One is apt when using the expression 'scope of employment' in relation to the work of a servant, to picture to oneself a particular task or undertaking, or a piece of work assigned to a servant which is limited in scope by the express instructions of the master and to think that all acts done by this servant outside of or contrary to the master's instructions are outside the 'scope of his employment', but such a conception of the meaning of scope of employment is too narrow. Instructions vary in character, some may define the work to be done by the servant, others may prescribe the manner in which it is to be accomplished, some may indicate the end to be attained. As in our cases, Chairperson and others the means by which it is to be attained. Provided the servant is doing his master's work or pursuing his master's ends, he is acting within the scope of his employment even if he disobeys the master's instructions as to the manner of doing the work or as to the means by which the end is to be satisfied.
Chairperson, there are a few further quotes which you might find interesting, I will print it out tonight and I will let you have it tomorrow, but that is the point I am trying to make, that one must not have a narrow view of the authority referred to in Section 22(b), but regard it as anything which is part of the duty of this person to his master and everything done to obtain the end or to attain the ends of the purpose of his duty for his master.
Here we know about the conflict of the past, we know the pressures that were brought about on the Security Forces to compel them to normalise the situation. This is what they did. They say they thought that was within their authority and Chairperson in that sense, looking at the common law and our case law we say that it is perfectly understandable that something which is objectively an offence, illegal, may still be considered by somebody to have been legally done and properly exercised. Thank you Chairperson.
CHAIRPERSON: Yes, thank you Mr Visser. We'll take time to consider the decision in this matter and we'll advise the parties once it is available.
MR VISSER: Chairperson I see it's 5 past 11 and we've now got to make arrangements for the next hearing to come on. Perhaps if you would consider taking the short adjournment now until say 20 past 11, we could be ready to start with the first witness.
CHAIRPERSON: Yes, we shall do that. We will take the tea adjournment. The matter that follows, is that Mnisi and George and Brown?
MR VISSER: If I may just say that it has been stated in the bundles, or it seems to suggest that there might be an application for abduction of Johannes Mnisi, but that is incorrect. We will give you evidence, Chairperson, to show that Johannes Mnisi was in fact arrested by the South African police, but that arrest was perfectly legal, so that is not part of the inquiry which comes before you. What comes before you is the murder of George and Brown and only that.
CHAIRPERSON: Alright, then we have an idea which is the matter. We'll adjourn and we'll reconvene at 20 past.
COMMITTEE ADJOURNS
