Amnesty Hearings

CHAIRPERSON: Mr Berger?

MR BERGER: Yes thank you Chairperson, I think we need to just swop seats. Mr Rasegatla can come and sit here and then we can then take his evidence. Mr Rasegatla will be taking an oath.

MALAKOLE JOHANNES RASEGATLA: (sworn states)

EXAMINATION BY MR BERGER: Thank you Chairperson.

Mr Rasegatla, is it correct that at present you are the Secretary in the Secretariat for Safety and Security, National?

MR RASEGATLA: That is correct.

MR BERGER: That has the rank of Deputy Director General, is that correct?

MR RASEGATLA: That is correct.

MR BERGER: Your application for amnesty appears in the bundle from page 37 to page 43, is that right?

MR RASEGATLA: That is right.

MR BERGER: And you are applying for amnesty only in respect of two attacks, the attack on the Orlando Police Station and the attack on the Booysens Police Station, is that right?

MR RASEGATLA: That is correct.

MR BERGER: At the time of - well let's first get some dates. When was the attack on the Orlando Police Station? Are you looking for the reference in General Shoke's application?

MR RASEGATLA: Yes.

MR BERGER: Okay.

MR RASEGATLA: Orlanda was '79.

MR BERGER: 1979? And the Booysens Police Station? Is that the one in 1980?

MR RASEGATLA: Correct.

MR BERGER: At that time 1979/1980, is it correct that you were a member of Umkhonto weSizwe?

MR RASEGATLA: That is correct.

MR BERGER: What was your rank?

MR RASEGATLA: We did not as so much operate in terms of rank but in terms of responsibility.

MR BERGER: Yes?

MR RASEGATLA: I was part and parcel of the Transvaal command, the Transvaal Urban command that was under General Nyanda.

MR BERGER: Now let's take the Orlando Police Station attack. At that time is it correct that you were based inside the country?

MR RASEGATLA: That is correct.

MR BERGER: What was your involvement in this attack?

MR RASEGATLA: My involvement was that of a participant and that of an overall Commander.

MR BERGER: How did it come that you were a Commander of this - in this attack?

MR RASEGATLA: I was the Commander because I was part and parcel of the Transvaal command that was externally based and now that I was inside the country at the time and part and parcel of this attack, I assumed overall command of the attack.

MR BERGER: Who else was involved in this attack?

MR RASEGATLA: It was General Shoke, the late Marcus Motloung and the late Moegarani ...(indistinct).

MR BERGER: Very briefly, can you describe how the attack was carried out?

MR RASEGATLA: First, reconnaissance was checked, the time that we decided to make this attack was chosen and it was around 1 and 12, late at night and that time was chosen because it was at that time that very, very few civilians appeared to be visiting the station. So the attack was then carried out around that time and it continued for about two weeks to make sure that indeed that was the case in terms of any other unintended consequences in the attack.

MR BERGER: When you say two weeks, that's two weeks for reconnaissance?

MR RASEGATLA: Yes.

MR BERGER: Not two weeks for the attack? Okay. Yes and then the actual attack?

MR RASEGATLA: The actual attack was carried in the following manner. There was one person who attacked from the rear and three attacked from the front of the police station.

MR BERGER: And what was used in the attack? Rifles, grenades, a combination?

MR RASEGATLA: It was a combination of rifles and grenades.

MR BERGER: And when we talk about rifles, what sort of rifles?

MR RASEGATLA: We are talking of AK47.

MR BERGER: The Booysens Police Station attack, 1980, again you say that you were personally involved?

MR RASEGATLA: That is correct.

MR BERGER: With who else?

MR RASEGATLA: With General Shoke, the late Marcus Matoung, the late Hlongwane and the late Gordon Digegu.

MR BERGER: What sort of reconnaissance was done there?

MR RASEGATLA: Just like with Orlando, the reconnaissance took about two weeks to try and choose a time, the most appropriate time to do the attack and also there it was found that around midnight that would be the most appropriate time and it was done at that time.

MR BERGER: The method of attack, did it differ significantly from the actual attack on Orlando?

MR RASEGATLA: It did not differ much except that with Booysens there was the use of another weapon, a rocket launcher.

MR BERGER: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR BERGER

CHAIRPERSON: Thank you Mr Berger. Mr Motloung, do you have any questions you would like to put to the applicant?

MR MOTLOUNG: Thank you Mr Chairperson. Perhaps one aspect. I'm sorry, I realise it's in respect of another person. Thank you Chairperson, I have no questions.

NO QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Thank you. Mr Wagener, any questions?

MR WAGENER: No Chairperson, I'm not involved.

NO QUESTIONS BY MR WAGENER

CHAIRPERSON: Thank you. Ms Patel, any questions?

CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson.

Mr Rasegatla, in the Orlando matter or that incident, how were you armed? What weapons did you have?

MR RASEGATLA: I was using AK47.

MS PATEL: And you say that in respect of the attack itself the attack was carried out from the rear. Can you tell us more specifically ...(intervention)

CHAIRPERSON: He said one of the cadres attacked from the rear and three from the front.

MS PATEL: Thank you Honourable Chairperson, I missed the second bit.

What specifically did you do at the police station?

MR RASEGATLA: We approached it from the front, those that were approaching from the front and then when we were right there in front we fired into the charge office there and also at the gate where there were some police officers and from the rear, the ones who were doing that from the rear, used handgrenades.

MS PATEL: Alright. And in the Booysens attack? How were you armed?

MR RASEGATLA: I was armed with AK47.

MS PATEL: Okay and what exactly did you do then?

MR RASEGATLA: We fired into the police station.

MS PATEL: Into the charge office?

MR RASEGATLA: Yes.

MS PATEL: Did you know exactly who was in the charge office at the time or did you fire from outside?

MR RASEGATLA: We fired from outside.

MS PATEL: Alright, thank you Honourable Chairperson.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Mr Berger, any re-examination?

MR BERGER: No thank you Chairperson.

NO RE-EXAMINATION BY MR BERGER

CHAIRPERSON: Judge Motata, any questions?

JUDGE MOTATA: No thank you Chairperson.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: I've got no questions Chairperson.

CHAIRPERSON: Just one brief question. These attacks on police stations, were they exclusively attacks or did you also go with the secondary objective of getting firearms?

MR RASEGATLA: They were exclusively attacks.

CHAIRPERSON: You didn't in fact take any firearms etc during or after the attack?

MR RASEGATLA: No.

CHAIRPERSON: Yes, thank you. Thank you, that concludes your testimony. You may stand down.

WITNESS EXCUSED

CHAIRPERSON: Mr Berger, do you have any other witnesses you are calling?

MR BERGER: No further witnesses, thank you Chairperson.

CHAIRPERSON: Mr Motloung, are you calling any witnesses?

MR MOTLOUNG: Mr Chairperson, I am calling no witnesses.

CHAIRPERSON: Thank you. Mr Wagener, are you calling anybody?

MR WAGENER: Chairperson no, except that I will request you now or later that at the end of these proceedings that my client be seen as a victim and that his particulars ...(intervention)

CHAIRPERSON: Yes, I will get to that now. Ms Patel, I just want to establish whether there's any more evidence at this stage now? Ms Patel, will you be calling any witnesses?

MS PATEL: No thank you, Honourable Chairperson.

MR BERGER: Mr Motloung and Mr Wagener, if you could make available in the list form the names of the people you're representing with an address at which they could be contacted or even preferably as well a telephone number and if those could be handed to Ms Patel and then we, as you are aware, any persons that we are of the opinion who are victims, we will refer to the Committee on reparations and we will do that. Thank you.

Right, so that concludes the leading of evidence at this hearing. We're now left with the making of submissions and I'll call upon Mr Berger.

MR BERGER IN ARGUMENT: Thank you Chairperson.

Chairperson, at the start of today's proceedings, Mr Wagener indicated that he was going to take a point I think only in relation to General Nyanda's application, if I understood him correctly.

CHAIRPERSON: Do you think it would be practical then to hear Mr Wagener first on that point and then you go and respond?

MR BERGER: Yes I do, thank you.

CHAIRPERSON: Mr Wagener?

MR WAGENER IN ARGUMENT: Thank you Chairperson.

May I at the outset refer you to another incident that took place albeit before another amnesty Panel that that would form in my view a point of departure in reaching a decision herein? A client of mine whom I think you all know, Brigadier Willem Schoon, served in the police force for some 40 years and retired in 1989. Seven years later he was asked to remember and compile an amnesty application because he was advised and my submission is properly so that he should specify incidents for which he applied for amnesty and in the end he did so and he filed a comprehensive amnesty application with some 20 odd incidents.

During the course of 1999, a matter was put before an amnesty Panel where certain of his ex-colleagues applied for amnesty implicating him and when this was brought to his attention, he remembered that he was in fact involved in that incident as well. As we all know, the last cut-off date for filing of amnesty applications was the 30 September 1997. So the way we read the Act was that it was too late for him to apply for this incident. We did, however, bring a full application before that Panel for him to be accepted as an amnesty applicant. That was during May 199... in Johannesburg in what was referred to as the Schoon Hearings, the Panel consisting of Advocate Potgieter, Advocate de Jager and I think Advocate Gcabashe. In the end, a detailed judgment was given. Unfortunately, Chairperson, I haven't got the transcription now but I will try and get it for you.

CHAIRPERSON: It's alright, I'm sure we'll be able to find it in our Cape Town offices because they do keep all the decisions there. You don't have the amnesty number, do you?

MR WAGENER: Chairperson, it was in connection with an incident called MK George and MK Brown. The incident was referred to by that name. It was two people shot and killed in Swaziland. I'm not sure of the exact date but it was referred to as MK George, MK Brown.

The judgment given by that Panel was that they are not, or they don't have any discretion in allowing a late application for amnesty and that they are bound by the specific wording of the Act. And although the bona fides of Brigadier Schoon, he had just forgotten about this one incident, that was all accepted, but in the end, as I've said, the Act does not allow for any discretion in this regard and he was denied to be seen as an applicant for amnesty in that incident as well. So at present - well the consequences will follow for itself.

Chairperson, we also had the infamous experience of the amnesty applications of the so-called ANC 37, of which I think we're all well aware of, where applications were filed in the words of the present application that you have in pages, I think 1 to 5 or 6 of this bundle, where amnesty was granted to them and on the review in the High Court in Cape Town a judgment was given. I think it was Justice Conradie, I'm not sure but I also have it somewhere, not here, stating specifically that amnesty could never have been granted because the present process does not allow for blanket amnesty for, if I may call it, unspecified amnesty. Because clearly that would make a mockery of the system that we're busy with here in terms of the wording of the present process.

Now if one turns to page 5 of the bundle before you, that is the application of General Nyanda filed before the final cut-off date and it is clear, Mr Chairperson, on a reading of page 5 of the bundle, he doesn't know for what he is asking amnesty for. He merely says "acts unknown". Unless, unless other people would come around in future some time and maybe say something. But this, in my submission Chairperson, is nothing else than a blanket application for amnesty or a general application which was set by the High Court not to be allowed in terms of our present process. Even if one tries to read the last part of that page, the same page 5, where reference is made to the submission of the ANC, on a question to General Nyanda, it is clear that he did not intend to apply for amnesty as is required by this Act, stating his own involvement in each and every incident to these odd few hundred incidents.

Now much the same happened with General Nyanda as what happened with Brigadier Schoon. In some way or another the General's memory was jolted, seems as if it was sometime in 1999 and then he could remember in total, I think 44 incidents, which you find in the bundle on pages 14 onwards.

Chairperson, the way and I know this is not a precedent system as within our courts of law, but the way I understood the judgment of the other Panel I referred to, it seems to make logic sense in terms of the strict wording of our Act, how unfortunate it may be for this specific applicant, that you have no discretion to grant late applications.

CHAIRPERSON: Just on that and I want to get your view on this and I'm sure Mr Berger will also give us his view, Section 19 it says okay, we receive applications, the Committee receives applications, it says

"19.2 The Committee shall investigate the application and make such enquiries as it may deem necessary."

Then in sub-section 3:

"The Committee may afford the applicant.."

this is 3.2:

"...afford the applicant the opportunity to make a further submission"

now that section 19.3.2, does that - there's nothing to indicate that that must be done within the cut-off date. In fact I'm sure that if one had to give it a reasonable interpretation, one would assume that after the investigation, most of the investigations would be completed after the cut-off date, I mean seven thousand something applications were received and would take a lot of time. Then they say okay, we've received your application form, it's vague, kindly be more specific. We ask you the following further particulars 1, 2, 3, 4, 5. Then comes the answer. In which you receive then specific incidents etc. What would you say to that? Would those be excluded because you see, I'm not trying to find ways out but I don't know what the application of Brigadier Schoon said, you know, he might have said look, I apply for amnesty in respect of the following incidents 1 to 22. No catch, dragnet clause as it were to keep it open because he might have forgotten. Then we get to an actual hearing situation and he says okay, I want to apply for more. I don't know if there's a difference, if one can distinguish between the application of this section 19.3.2 and what happened in Brigadier Schoon's matter because I've got no idea what happened in his matter. But what's your view on this section 19.3.2?

MR WAGENER: Chairperson, maybe firstly dealing with the last part, Brigadier Schoon said in his application his career lasted 40 odd years, he can't remember everything. He tried to the best of his ability to remember what he could and then he went along and specified 20 or what incidents. Now should one allow, what you refer to as a dragnet situation, then he could have done much better by not trying to be open and frank and making a full disclosure in his application. But to his disadvantage then, he tried to be frank and played open cards, although he said and I'm also Mr Chairperson, aware of a number of other clients who said in their applications "I tried to the best of my ability to remember". So should one allow now for this late inclusion by the back door, I'm sure there will be a large number of other people interested also, a large number of my own clients who will be very much interested to bring what I had advised them would be late applications and what another Committee has found to be a late application .

Now turning to this section that you referred me to, section 19, a few remarks, Chairperson. In the first instance, section 18 says:

"a person who wishes to apply for amnesty in respect of any act, omission of offence"

My first submission is that General Nyanda didn't even cross that hurdle in his first application. So section 19 doesn't even enter the frame here in his case because he never filed an application where he applied for amnesty in respect of any act, omission of offence as required by section 18.

One can even take this argument further. The section says that he should do so in the prescribed form. The prescribed form specifically asks for specific incidents and the involvement, the specific involvement of the applicant there which the General also failed to do. So my submission to you is that section 19 doesn't even enter the frame here in his instance and that section 19 was clearly intended as we've seen in many, many other applications, where an applicant comes along in his initial application and saying "I asked for amnesty for..." and he specifies the incident but he only gives one or two sentences or paragraphs. Clearly this was what was intended with section 19.1 that you referred me to where the investigation unit or the Amnesty Committee can then come along and say "please, you haven't given us enough information, we would require the following further particulars." My submission is, that is what this process that you referred me to was intended for.

CHAIRPERSON: Yes I know and I'll have to go to the documents to refresh my memory etc., but I know that after the 37 applications were set aside by the Cape High Court on review that the Committee asked the applicants concerned for further information relating to specific offences and then after some time a further decision was written where there hadn't been any response and those applications were ultimately refused. So are you saying it was therefore wrong to have requested them for further information? I don't even know and I can't recall, this is why I say I'll have to check the documents whether the Court in its judgment made some reference to setting aside the documents and giving the applicants some sort of further opportunity to be more specific and I know there were two categories of applicants. It was in that 37.

MR WAGENER: Chairperson, as far as my memory serves me, that aspect was not dealt with in the judgment of the High Court. I may be wrong but you are correct that afterwards I think there were repeated requests from the part of the Amnesty Committee even begging for particulars which was apparently never given. But yes, my interpretation of these sections is, with all respect, that one can't even go to section 19 in an instance like this, you must first cross the hurdle of 18 which this applicant in my submission has failed to do.

JUDGE MOTATA: I think in respect of the 37, the Court never made a decision and said these are not applications per se but referred them back to the Amnesty Committee to deal with them further and after a request for further particulars, in respect of which particular incidents were they applying for, it transpired that it was just a general morality statement that they accept responsibility for actions of their operatives even though they know of no specific incident.

But I want to return to this and say - or just for completeness, that it was not the whole 37 that were eventually refused amnesty but just part of them, I can't remember the actual number because a sub-committee dealt with that in the Amnesty Committee. But here the Act, if I'm not mistaken, it would be Section 30, says after investigation, the Commission, a Committee or sub-Committee, if they come with such information and I want to say to you help me, because I'm referring to that and coming back to the further particulars which I don't know when they were requested but we just had the further particulars before us, would that not cover that situation? I don't know. My mind is not made up.

MR WAGENER: Mr Chairperson, maybe I shall proceed with my argument and I will try and cover that specific issue. If I do forget in the end please remind me, it's not evasive tactics.

So the point I've made, Mr Chairperson, in my submission, this application before you by General Nyanda is too late and therefore he can never satisfy you as he should that he has complied with section 20.1.(a) of your Act.

The next point, Mr Chairperson, is that even should you decide that these particulars or that this application is not too late, the question remains for what should General Nyanda be given amnesty? As far as I remember, I may be wrong but as far as I remember this very Panel sat in the matter of Aboobaker Ismail or Rashied as he was called. I have his application here with me, Mr Chairperson. You heard his evidence where he said that he is asking for amnesty for operations committed by his special operations unit. We heard evidence today that General Nyanda never worked with special operations but he is telling you or he is trying to tell you that these incidents were committed by his operatives. Can you ever be satisfied, Mr Chairperson, before granting amnesty to General Nyanda that he was at all involved in any of these incidents? He himself does not even know whether he was involved. He said so this morning. He's not sure. Once again, Mr Chairperson, my submission is, in granting amnesty on that basis would (i) be of a general blanket nature and (ii) it will make a mockery of our system and (iii) it will allow for large numbers of other people to come around and say well, now my memory has also been jolted and poor Brigadier Schoon was given a raw deal, he should have been allowed to ask for amnesty in his case.

Mr Chairperson, if I may be allowed, I think the correct way would be as what the original amnesty did in the Cronje and his four colleagues in that matter where specifically, if I can remember, Hechter and Van Vuuren, you should have the judgments in this regard, where they also applied for amnesty in respect of what they said numerous acts of violence in certain townships around Pretoria without any specification of dates or locality or anything. And in the end, Mr Chairperson, the original Amnesty Committee decided that on that kind of evidence, or lack of evidence, they were unable to grant amnesty, but they said to those applicants should other applicants arrive in future and ask for amnesty in more specific terms and specifically implicate them there at the scene, they would be allowed to form part of those applications and if that Committee is then satisfied of the facts of each incident and that these applicants were in fact there on the scene and they obviously comply for the other provisions, they can be granted amnesty or not.

Mr Chairperson, my submission is that is the correct way to go with applications like this or else we will end in a situation that I'm not even sure should you now grant General Nyanda amnesty on what you heard today, what you are going to say? What will be the proclamation in the Government Gazette? For what will he receive amnesty? He doesn't even know himself. So my argument, in short then Mr Chairperson, is that this application on what you've heard today, you're not in a position and you can never be satisfied as is required in section 20 to grant amnesty and the correct approach should be what was done in the Cronje and others matter and thereby not granting amnesty in any incident, but should there be more detailed evidence by other operatives in future, spelling out exactly what they did and how they did it and what the role of the General was, then he can be part of that application and if necessary be granted amnesty then. Thank you Mr Chairperson, except - sorry Mr Chairperson, I'm getting old. May I just get that question again, that your colleague Judge Motata asked?

JUDGE MOTATA: The question is that I said if we have regard to section 30 and where the Act empowers us to investigate and we thereafter, after investigation, request further particulars, but what I am not certain of is when those - that request was made and such request is further particulars are furnished and some incidents, well it would depend largely on evidence adduced that if such incidents are furnished, would we say such an application still falls outside the ambit or to use your words that we've got no application before us?

MR WAGENER: Mr Chairperson, yes thank you. The way I understood the argument and the ruling of Brigadier Schoon, it was short and sweet that should an applicant bring to an Amnesty Committee a new matter, a new incident, a new act, for which he wants amnesty and he does so after the last cut-off date, he is not allowed to do that and that the Amnesty Committee has got no discretion to allow it. But of course your brother, Judge Motata, is correct that you can always ask for further particulars, but again, in the sense that I referred to earlier of section 19, where an applicant refers to a specific incident in his application but he does not provide much detail. Of course the Committee can then ask for further particulars before the hearing or at any stage. But the argument remains that is in respect of that specific incident that was mentioned in the initial application before the cut-off date?

CHAIRPERSON: It's quite clear that - well, let's just go back to the 37 applications that there were applications before the Committee, even if they didn't relate to anything specific, they were in fact applications. I don't think one in fact can say they weren't applications because they didn't specify any act. Whether they were applications that fell to be refused because of lack of detail, that's another question, but they were applications. Do you agree with that or not?

The application on page 4 onwards of General Nyanda is in fact an application?

MR WAGENER: Chairperson, I would respond as follows. Those 37 so-called applications were dealt with in chambers. That Committee that decided thereon, they heard no argument in this specific regard ...(intervention)

CHAIRPERSON: What I'm asking you is, they were applications? They fell to be refused for lack of detail or lack of information but they were applications. In other words, the Committee was justified in refusing them.

MR WAGENER: That is what happened in that instance, Chairperson, had I been there I would have argued that they couldn't even entertain the applications.

CHAIRPERSON: So we couldn't even refuse them, you were saying, that they just not be dealt with as an application?

MR WAGENER: At most the Committee should have said that those applicants have not complied with section 21(a) with the formal requirements.

CHAIRPERSON: Yes, because also one other aspect and I'm just mentioning it, one has also got to take a look at the spirit of the Act, what the intentions are of the legislature, the reconciliation, nation building, etc. and I know, rightly or wrongly, but personally involved in matters where the application hasn't been properly attested to and etc., that sort of thing. A lot of the applications, applicants who make application aren't literate and the prescribed form wasn't properly followed, various reasons. And then even at a hearing stage, we condoned that sort of thing as long as the person confirms under oath that it's correct etc. It's not a strict technical line that is followed and I don't think a strict technical line should be followed, as long as one doesn't arrive at an injustice or an undue prejudice, one can be a little bit broadminded.

MR WAGENER: Chairperson, thank you. No, I accept every word that you've said and I must again stress this, I accept the bona fides of General Nyanda without reservation. He is in a very difficult position, the same as many other applicants or prospective applicants are in a sense that we sit with an amnesty process with an Act that it is worded in the way it is as compared to the previous indemnity Acts of 1990 and 1992 where individuals could get indemnity on the basis of a category without specifying even. It was possible that the State President could grant indemnity in that way but we sit with this Act and I accept every word that you say regarding the objectives of the Act and reconciliation and fairness and all that. But once again, Mr Chairperson, then the question would be, can I bring another 100 people now to say they want to file applications for amnesty in the spirit of reconciliation and fairness, because the way I read the Act, you can't allow it, whether fair or not, whether in a spirit of reconciliation or not, but if you do allow this and provide us with a detailed ruling, it may be of - it can be used in future as well, as long as we realise what this is all about?

But again, Mr Chairperson, no I accept what you say, it's only the way I read the Act and if I'm wrong, I'm wrong but that's the way I read the Act that you've got no discretion on this specific issue of the cut-off date and that is why when your other Panel ruled in the matter of Brigadier Schoon, I for one, although reluctantly, I accepted that as correct in terms of the Act.

CHAIRPERSON: Thank you Mr Wagener. Mr Berger, do you have any response?

MR BERGER IN ARGUMENT: Thank you Chairperson, I do. If I could start off where my learned friend ended? I see he has a big smile on his face because he is anticipating bringing a 100 or more people to apply for amnesty in the spirit of reconciliation. But there are just some questions one needs to ask about whether those 100 or more would be entitled to apply for amnesty and that is firstly, have they made any applications for amnesty?

CHAIRPERSON: I think it's quite clear, if somebody hasn't submitted the form in any form before the 30 September 1997, he's out unless he can show some huge ground for condonation which only a Court would be able to condone, not us. We don't have that authority in the statute.

CHAIRPERSON: Sorry, there has been an application form in any sense submitted timeously.

MR BERGER: That is my point, Chairperson, that probably knocks out about 98 of his potential applicants.

And then the second question is, in the application, if there was such an application for amnesty, was there any reference to a submission by the National Party in which they detailed all the attacks that they were responsible for? I doubt it. The unfortunate point, Chairperson, with referring to other amnesty applications and the amnesty application of Brigadier Schoon is the principles are there but are the facts the same? Are those cases where a specific number of incidents were applied for and then a further incident was added which was never even referred to or alluded to.

General Nyanda's application, Chairperson, and apropos of what you said about the intention of the legislature, General Nyanda's application makes it quite clear what he is applying for. We all know the history of the legislation and we all know, with respect, what the legislation was intended to effect. It was intended that people who were involved in the conflicts of the past could come forward, disclose what their participation was, and in return for that be granted amnesty.

Now General Nyanda says at page 4 of his application that the capacity in which he served the African National Congress was as a Commander of MK. Now anybody, with respect, who knows anything about the history of our country would know what Commanders of MK were involved in. They were involved in waging a struggle against the apartheid regime, a struggle which involved loss of life and attacks on establishments and on personnel.

Then in paragraph 9(a) at page 5, he is asked to specify the individual acts and he says "the acts are unknown to me unless stated otherwise by individual amnesty applicants". But my learned friend says even if one reads paragraph 4 below, it's not clear what General Nyanda is referring to. With respect, it's quite clear what General Nyanda is referring to. He says:

"As declared in the ANC Submissions of the 22 August 1996"

It's this document,

"and the operational documents, the additional documents on the 12th May 1997"

which are these submissions.

So General Nyanda is saying there were a whole host of operations, "I don't know all of them", he's upfront to say "I don't know them but I want to apply for them because of my position of a Commander in MK." If General Nyanda is asked what specific bomb did you place, well then he says "no, I didn't place a bomb, I was in the command structure, I was the person giving the instructions." Those are the acts for which he seeks amnesty, the acts, the commands, the instructions that he gave ...(intervention)

CHAIRPERSON: And sometimes those instructions weren't for specific operations, they would be to a unit or a unit Commander to say okay, infiltrate and do your stuff within the guidelines sort of thing.

MR BERGER: Indeed and Chairperson, for General Nyanda to catalogue all of those acts would be almost impossible. We're talking about a struggle which was waged over decades.

CHAIRPERSON: Do you think whatever - I'm just asking you this question as it comes to my mind - that amnesty could properly be granted in the following form. The Committee therefore grants amnesty in respect of - and then 1, 2, 3, 4, 5, 6 - 22 - whatever amount of specific incidents actually described, date etc. and also grants amnesty to the applicant in respect of any other offences of which he is unaware that he might of been involved in. Would that be - I'm just asking whether that would be a proper decision?

MR BERGER: The second part, not amnesty in respect of any offences of which he might be unaware but amnesty in respect of all other acts committed by him as the Commander of the Transvaal Urban Machinery which resulted in the injury to or the deaths of people unknown to him.

CHAIRPERSON: Yes.

MR BERGER: That would be proper because it's not - amnesty doesn't have to be granted in respect of an offence but amnesty can also be granted in respect of acts.

CHAIRPERSON: And acts might not necessarily be a crime or an offence?

MR BERGER: No.

CHAIRPERSON: Well it might be an offence in the sense that the act must have some sort of liability attached to it, he must be liable to somebody for the act, it can't be - we're not going to grant amnesty to somebody because he drove to work in the morning and had an accident, I mean that's ridiculous because there's no liability at all, but any act that may have resulted in harm of any nature to any person in respect of which the applicant may be liable either civilly or criminally.

MR BERGER: In fact, Chairperson, the Act is clear that it's section 20.2, it's says in this Act

"unless the context otherwise indicates, an act associated with a political objective means any act or omission which constitutes an offence or a delict."

So the act must constitute an offence or a delict, but as General Nyanda says, he is in the command structure and he is giving orders which have as their ultimate end an attack on a police station or an attack on administration offices or the death of a policeman and all of those orders can eventually be traced back to him and then he is saying in respect of those orders, instructions, advices which I gave and which ultimately caused the death of people or injury to people, it's those acts which I gave in my position as Commander of the Transvaal Urban Machinery for which I seek amnesty.

CHAIRPERSON: And it might not only be only in respect of orders given but what about the situation where there's not a specific order given to carry out specific acts but then there's a report back later that that act was carried out?

MR BERGER: And then by doing nothing in the sense of not reporting it to the police, yes then he would be guilty as an accomplice or worse and as my attorney points out, not only for that specific offence, but all the acts that General Nyanda did would have been sufficient to qualify for the offence of treason or as it was the statutory offence at that stage of terrorism. All of those individual acts, individually and accumulatively would have attracted criminal liability and delictual liability, even now.

But Chairperson, it's not up in the air as my learned friend would have it. The reference in 9a(iv) to the submissions of the ANC, includes a reference to structures of the ANC, it sets out at page 36 of the document dated 12 May 1997 all the ANC structures, how the - for example at page 36, how the Transvaal Urban Machinery fitted into the entire structure of the ANC and then following, the structures are actually set out and the people who occupied certain positions in those structures are mentioned. For example at page 38 and this is an annexure to the further particulars, but at page 38 it deals, paragraph 3.8 deals with MK operations and regional structures during the period 1976 to 1980. 3.8.1, the Eastern Front, it says:

"Four machineries or military structures operated from

the Eastern Front (Maputo via Swaziland).

and under the Transvaal Urban Machinery it says:

"The Transvaal command consisted of Selaello Ramusi, Siphiwe Nyanda, Nsi Manye and Solly Shoke."

So already the reference to this document makes it clear exactly what role General Nyanda performed during the period - here we are - 1976 to 1980. But it goes on. 1980 to 1983 at page 43.

CHAIRPERSON: I think it takes each period, it goes right through.

MR BERGER: Indeed, indeed.

CHAIRPERSON: Up to 1994, and in fact 1991.

MR BERGER: Yes and wherever General Nyanda participated, his name appears.

Then the operations that were carried out, all of the operations, MK operations, are listed from page 72 through to page 101. Now my learned friend says well, clearly General Nyanda didn't intend to apply for amnesty for all these hundreds of operations. No, that's correct but each operations specifies where it was carried out whether it was in Kagiso, whether it was in Mamelodi, whether it was in Germiston, wherever and anyone who reads these documents will be able to - it's not difficult - to discern what were the operations that the Transvaal Urban Machinery carried out, what were the areas of operation that they carried out and what operations is General Nyanda referring to in this short note at page 5.

CHAIRPERSON: That's what he said in his evidence that he has done to come with this list on page 14 but Mr Wagener says, well how do we know that some of those aren't special ops operations for which he specifically has testified that he was not involved in but Rashied Ismail was?

MR BERGER: Well Mr Wagener hasn't - I thought he would, he promised he would deal with General - or he is no longer a General - Mr Aboobaker - Mr Ismail's application to show us where the overlap is.

MR WAGENER: Chairperson, sorry, I forgot. If I may be allowed and it may assist my learned friend, I will do so right now if it is an opportune moment? Sorry, I forgot, I can give you the incidents where there's the overlapping where he says it was special ops operations and this General says it was Transvaal Urban.

CHAIRPERSON: You may as well then Mr Berger can deal with it now.

MR WAGENER: Mr Chairperson, what I've tried ...(intervention)

CHAIRPERSON: If you turn to page 14?

MR WAGENER: Yes, what I've found on a quick comparison of the two applications on page 15 of your bundle, the items are numbered in the extreme left hand column. I would go by those numbers. It's item number 10, 11, 13, 16 and then over to page 16, items number 28, 34 and 36. Sorry, I nearly forgot, I wanted to do this.

CHAIRPERSON: Yes, I'll be in a position to be able to distinguish between special ops operations, because I remember in that Ismail application there was a list put up as well so I can verify that.

MR WAGENER: Yes it was an annexure to Mr Ismail's application, a long list of incidents.

CHAIRPERSON: Yes that's right and a lot of them in the old Transvaal, the majority of them in the old Transvaal.

MR BERGER: Well the difficulty, Chairperson, is that my learned friend should have canvassed this with General Nyanda, it's not good for me to say whether it was a special ops operation or a Transvaal Urban Machinery operation and what General Nyanda did say was that it's possible that some of the operations are not Transvaal Urban Machinery operations.

CHAIRPERSON: Yes, that's I was going to say, I think on his evidence, that General Nyanda wasn't emphatic that these were them all, he did say that they sat down and it was a difficult process but this is what they believe were the TUM's operations so if some of them are found to be special ops then one can find that they're not TUM.

MR BERGER: Well indeed, if they were special operations then so be it, then there is no need to apply for amnesty for it and there's no civil or criminal liabilities.

CHAIRPERSON: Well just on that, while we're talking about that, the specific items, if one takes a look at General Shoke's list, that's on page 28, Uncle Toms and Watloo, that's item number 5 and 8, they don't seem to appear in General Nyanda's list unless I'm mistaken and unless they're described under some different sort of name or something.

MR BERGER: Chairperson, all I can say is that is what General Nyanda said, that there were other people operating and there may well be operations which were carried out which would not fall under Transvaal Urban Machinery.

CHAIRPERSON: Those two would be an example of two that he missed.

MR BERGER: Indeed but the interesting thing of course is that in neither of these cases was there a death or injury and so these are not gross violations of human rights, they're not - actually they are neither here nor there.

CHAIRPERSON: But on your argument, you're saying that the General should still be granted amnesty in respect of them?

MR BERGER: Yes I am, but then Chairperson, one must look at -now bearing in mind that General Nyanda as a Commander of MK comes forward and makes application and the intention clearly is to apply for all acts in which he bore the ultimate responsibility. In other words, he says I'm going to apply for all acts which constituted offences or delicts which were carried out whilst I was in command and he says have a look at what my organisation has put together because I'm responsible for a certain sector.

Then we've got to look at the Act. Section 18 says you must apply for amnesty in the prescribed form. My learned friend quotes a particular decision of the Amnesty Committee, Mr Sibanyoni will remember the weeks we spent in Boipatong where the original amnesty applications were not even completed, not even attested to by the applicants. In fact the attorneys filled out the forms, they were largely blank, the paragraphs, paragraph 9 in particular was not filled in and there was reference. The only thing was that there was a reference to the Supreme Court, as it then was, case, criminal case in which 17 people were ultimately convicted.

CHAIRPERSON: I've done an application, I think it was in Natal somewhere, KwaZulu Natal where the same thing happened, it was completed on the final day before the cut-off by the attorney and it just said ITBS, you know, across the pages and it was information to be supplied.

MR BERGER: The case that was referred to was the criminal case where all the applicants denied their involvement and said that they hadn't done anything so no acts were disclosed at all and Judge Ngobo and the Committee said we've got to take a robust approach, we've got to look at what was the intention when the application was lodged.

CHAIRPERSON: Can we distinguish between cases where the applicant is actually involved in the physical commission of crimes and offences of gross human rights violation and applicants, who like the General, are removed to a large extent from that or are in a management position away from the action on the ground. In other words, for an operative to come and say look, I operated in that region for six years and in his application well may now have shot several dozen people in a number of incidents - full stop, I now apply for amnesty. Is that different from somebody saying look, I was in control, we gave instructions, people went out, I don't know what they did but I accept responsibility if they acted in accordance with orders. I think there might be a difference. In other words, if somebody were to be granted application for murdering somebody, actually murdering, shooting somebody in cold blood without that being specified, who the deceased was, where - it might be different from somebody who is giving orders because as you said he is applying - the act here is the giving of the order rather than the actual commission of the offence.

MR BERGER: In fact, Chairperson, when one looks at the intention of the legislature, one might pose the question, could it have been the intention of the legislature in 1995 to deny amnesty to an MK Commander who says "I was in this position for a number of years, I gave instructions which ultimately resulted in the deaths of people, I cannot recall all of those instructions but I want to come forward and tell you whatever I know and apply for amnesty." Could it have been the intention of the legislature in 1995 to say such a person would not be entitled to amnesty? I submit not. But the Act makes it clear in Section 19, the act says that when the Committee receives an application for amnesty, the application can be returned and the individual can be told no, you must still fill out that, you must fill out that, does it mean that no application has been received once it's been returned and submission or - so you can return the application or request the applicant to provide such further particulars as it may be necessary. So the Amnesty Committee has two options, either send it back or ask for further particulars. Thereafter there is an investigation in Section 19.2 and after the investigation a decision can be reached whether or not this is an act which involves a gross violation of human rights and if so, it's held in chambers and if not, then we come to sub-section 4 which says if an application has not been dealt with in terms of sub-section 3, the Committee shall conduct a hearing as contemplated. But before the decision is taken to conduct a hearing, there's the application, there's the request for further particulars, there's the further particulars and in fact, what I left out, Chairperson, there is also in 19.3(a)(ii) an opportunity which is afforded to the applicant to make a further submission and all of that is taken into account before the decision is taken to conduct a hearing or whether it should be dealt with in chambers.

CHAIRPERSON: Obviously there had to be some form of application lodged prior to the cut-off date?

MR BERGER: Absolutely.

CHAIRPERSON: For that - well Mr Wagener has argued differently but if one got an application for the first time from an applicant today, clearly we don't have the power to do anything.

MR BERGER: No, then it's too late.

CHAIRPERSON: And even we got an application a day late.

MR BERGER: It's too late.

CHAIRPERSON: It's too late and we don't have any power to accept it.

JUDGE MOTATA: But the tenor of Mr Wagener's argument is an application is received on the 10th May and an applicant says look what we would be saying in future the 12th May and those would be the acts I'm applying for, acts which are determined at a later date. Would that constitute an application contemplated by the Act?

MR BERGER: No Judge, if a document doesn't exist at a time when reference is made to it, well then it's not ...(intervention)

CHAIRPERSON: I don't think that document could have been compiled on the 11th and submitted on the 12th.

MR BERGER: Well that's my point, yes. As General Nyanda has explained, he was privy to documents which the ANC was compiling for presentation on the 12th May 1997, this document couldn't have been conceived in two days, in one day actually for submission on the 12th and clearly it involved a process of back and forth and as it says, reference was to newspaper records and so on. So it is presented on the 12th May 1997 but it's in existence long before then. It must be, because otherwise if it only comes into existence on the 12th May 1997 then how ...(intervention)

CHAIRPERSON: Never have been able to guessed the date.

MR BERGER: Indeed yes. So one then has to make sense or give some meaning as to what was General Nyanda referring to when he said the nature and particulars are set out in a document. Clearly he is referring to something, it's not like an individual who applies for amnesty and says whatever may pop up, pops up.

Chairperson, about the judgment in the Schoon application I can't comment because I've never seen it. Perhaps we can make some sort of arrangement to get you a copy of it, Mr Berger and also - would you require one as well, Mr Wagener? You'd require one? I will be - personally I will be in Cape Town next week so I will extract that and get copies to you and then if you wish to supplement whatever you say here you can do so but I'll do that.

MR BERGER: Chairperson, if we could also supplement with reference to the application of the ...(intervention)

CHAIRPERSON: Hechter and - what was the other one? Hechter and Van Vuuren, is that the other one?

MR BERGER: No, I was referring more to the ANC 37.

CHAIRPERSON: The decision, the Court decision?

MR BERGER: No, no the Court decision has been reported but if you can just supplement argument on that as well when we hand in supplementary heads if we could just ...(intervention)

CHAIRPERSON: Yes, that decision I can get because I was involved in the second decision on that one, not the first decision but after the Court decision.

Mr Berger, I think what we'll do now is, I think you can carry on with your argument here but all deal with the actual applications and then Mr Wagener can reply to both, the point that he has taken as well as anything you might say on the actual applications that we've heard today, besides the points taken by Mr ...(inaudible)

MR BERGER: Chairperson, I think that the point taken by Mr Wagener is really the only point because as far as the rest is concerned, it's a question of were these acts, acts associated with a political objective? I submit there can be no doubt in respect of any of the three applicants that that is so and have the applicants made full disclosure? Well to the best of their knowledge they have told the Committee what they know, what they can remember. There's be no suggestion by anyone here today that any of the applicants have held back on any information. The acts took place a long time ago and obviously that must be taken into account as well.

General Nyanda, as we've already debated applies for amnesty for specific incidents which were carried out, attacks which were carried out whilst he was in command but he also applies for acts, as I've already said, for any commands, instructions which he gave whilst a Commander, whilst in charge of the Transvaal Urban Machinery which resulted in death or injury and of which he is still unaware. He is not unaware of continually giving instructions, he's just unaware of the consequences of his instructions.

As far as General Shoke is concerned, he is applying amnesty for specific incidents and he has described those incidents to the best of his ability. He says he was involved in them on the ground and has described what took place.

And as far as Mr Rasegatla is concerned, he is only applying for his involvement in two attacks and he has described those as well. Save for any new stuff which my learned friends might raise, we've no further submissions to make. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Berger. Ms Patel, do you have any submissions that you would like to make?

MS PATEL: Yes, thank you Honourable Chairperson. Just to comment very briefly, ...(intervention)

CHAIRPERSON: Sorry, I forgot because we had started with Mr Wagener and then went to Mr Berger. Mr Motloung?

MR MOTLOUNG IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, may I at the outset indicate that as far as the decision on the applications by the three applicants, on the merits of each particular say act or deed is concerned, it was my instructions from the victims that I represent that they will not seek to oppose, reluctantly so, the application for amnesty by any of these three applicants. However, my I also hasten to add that I have found some of the points that I've been listening to, particularly the argument raised by Mr Berger, very, very incisive. It is serious food for thought because essentially he doesn't really deal with the merits but he raises a - what one may call a point in ...(indistinct), he is arguing that there is more to it than we may want to believe and I must then add that for my part I find myself constrained to mention that there I found a lot of sense in the effect of his argument when it comes to what I understand to be his argument.

He says the following. Before you can apply for amnesty, you must in the first place or the Committee must at least find in the first place that you were responsible for a particular deed or act and I think for me and for the Committee that is pretty obvious, you must firstly say this is what I did and you must find that in fact you were responsible for this.

Now he is asking the question, is this Committee or can it be in the position that that necessary cause - link, I may call it a casual link, has it been proven? Granted the General, while responsible for a particular area, but surely and I do not think that that could have been the intention of the legislature, that if we find that any act or deed took place within his area, it necessarily follows that he should have been responsible for it. As a matter fact, the history of this country knows that the ANC and it's structures like the MK were not the only forces operating within the area, there were other forces. What if this was an act, not of the ANC, not of MK, but say of another say structure or sub-structure. An example would be the Wonderboompoort example. If Mr Aboobaker, is it? Aboobaker?

CHAIRPERSON: Ismail. Aboobaker.

MR MOTLOUNG: If he submits that his structure was responsible for certain acts or deeds and we find same overlap when it comes to the application by the General Nyanda and when the General is confronted by the question, were you indeed - are you emphatic that you were responsible for these deeds and his answer to the effect that if - who knows, maybe I was not responsible, maybe the special ops was responsible. Now the question is, can this Committee under those circumstances, when the Committee itself is not satisfied in the first place that this is something that can be linked or traced back either to an order or an act or deed of the General, can it be found that he should be granted amnesty there?

CHAIRPERSON: I think these incidents that are contained in the submission, this appendix 4, probably can be accepted as being incidents which were committed by supporters of the ANC because they've actually got two, these are the ones we are responsible for and the next appendix is, we're not sure about these ones and then the whole list of incidents of which they're not sure, they might be ...(intervention)

MR MOTLOUNG: Thank you Mr Chairperson, I'm coming to that point. I was going to submit then that to the extent that the General may not be certain and we cannot be certain from a perusal of all the documents about any particular deeds and/or acts, it seems to me that the argument that in respect thereof, no amnesty can be granted there is simply compelling but I'm not suggesting that everything we'll have to get from the General himself and an example would be certain acts as the application by General Shoke showed, there are certain acts apparently, General Shoke acted there under the commands, loosely used the word command of General Siphiwe Nyanda, then if General Shoke, we accept here from his evidence that he was indeed responsible for certain acts, we can then extend the amnesty to General Nyanda in respect of those acts or deeds. Similarly, if any of the other operatives has claimed responsibility and this Committee can be satisfied that the ANC was responsible in the first place, yes then the General can get amnesty in respect of those acts or deeds.

JUDGE MOTATA: But what would be the purpose of a hearing where other people are not advised of those incidents and you proffer argument that because we are at this hearing and other acts because he was in the Transvaal, Chief of Staff and today we hear certain incidents and other acts where people are not afforded an opportunity to say, hey look, it's not him or say something to the contrary. How could we or are we empowered or do we have a wider discretion to include that as well? I've got serious problems about that.

MR MOTLOUNG: Thank you. So Mr Chairperson, in fact my argument seems to be exactly that, that we cannot include in the granting of the amnesty those incidents that cannot be proven to have been committed under the auspices of the General but anybody anything that can be proven or be connected somehow with his orders, yes I'm sure I find no reason why he cannot get the amnesty.

Now Mr Chairperson, just before I move off, I wish to reiterate that for me the issue is, can the General be linked? If not, or if there is insufficient evidence, and some of these things come from him. I don't mind if he was to claim responsibility for anything and in fact he was not responsible or his operatives were not because then there would be no evidence to countenance what he is saying but to the extent that he himself he says I am not even sure himself whether I'm responsible for or any of my operatives is actually in respect responsible for. How does this Committee then extend the amnesty to those cases? That is all Mr Chairperson, unless you want to hear me further?

CHAIRPERSON: Thank you Mr Motloung. Ms Patel, do you have any submissions?

MS PATEL IN ARGUMENT: Thank you Honourable Chairperson, I will be brief given the arguments already raised by my learned colleagues here today.

In respect of the point in laminae taken as to whether we in fact have a proper application before us by General Nyanda, it is my respectful submission that we do in fact have a proper application before us. Whether that application meets with the requirements of the Act in terms of full disclosure and political motivation is an entirely different question. My understanding of the decision in respect of the ANC review application is that the applications were in fact correctly before us and we were then directed to request further particulars from those applicants which is in fact what has happened in this case and the further particulars were then received by us from General Nyanda albeit after the cut-off date. My difficulty with General Nyanda's application to us is not whether his application meets with the requirements of full disclosure - I mean of political motivation but whether he meets with the requirements of full disclosure. The specific incidents that he has mentioned to us from pages 14 to 16, he has unfortunately in his oral evidence to us he has stated today that he is not certain which of those incidents can in fact be attributed to his overall command that he was giving to operatives and in terms of the guidelines, the policy guidelines that were in fact pointed out to the cadres. In regard to that my submission is that we then are not in a position to say which specific acts, offences he is applying for and he therefore cannot qualify for amnesty.

CHAIRPERSON: Certainly we know for instance at least the incidents committed by General Shoke and Mr Rasegatla, they've mentioned those, they're specific. There's the Johannesburg bomb that people know about, that sort of thing.

MS PATEL: Certainly, Honourable Chairperson, I would concede in respect of instants where he says he authorised those operations and where we have evidence that corroborates his allegations, certainly he should qualify for amnesty in respect of those offences.

JUDGE MOTATA: What about - there's a document and there has been an extraction from the document which incidents fell under TUM and which he was the overall Commander of TUM? What about those, what is your comment?

MS PATEL: The incidents that were carried out under that specific structure which the General can specifically state can be attributed to his command. I will grant that those incidents he should be granted amnesty for but when he says that there are incidents that are listed there that might be special ops that doesn't fall under his command, surely then on what basis are we to decide unless he is able to show to us?

CHAIRPERSON: You say unless he is able to show to us but what if it can be established, what special ops operations were and then not include those for instance those referred to by Mr Wagener, they're confirmed to be special ops and just extract them. What about that situation?

MS PATEL: Well that would be akin to the General withdrawing certain of the incidents for which then applies.

CHAIRPERSON: It would be not succeeding in those applications, he doesn't have to actually withdraw them?

MS PATEL: Well yes then, I would concede that, Honourable Chairperson.

CHAIRPERSON: What about Mr Berger's submissions, saying that he applies for amnesty in respect of certain specified acts, you know, which we've got, that we know about and then in respect of all other acts that he may have given orders for and in which delictual or criminal liability arose?

MS PATEL: I was going to come to that now, Honourable Chairperson.

CHAIRPERSON: I was just thinking, you know, if you had the situation where the head of an army, let's say the South African Defence Force applied, very difficult to start itemising every single ...(intervention)

MS PATEL: Inasmuch as I have great sympathy for the position of General Nyanda in terms of the fact that he doesn't bear personal knowledge of all the acts and incidents which were carried out under his command, we still sit with the practical and legal difficulty of us not being entitled to grant blanket amnesty which is what we would in fact be doing if we were to granting for acts for which he is unaware and my submission is that that is the very crux of the basis upon which those 37 amnesty decisions were in fact set aside, that there wasn't sufficient particularity upon which we would have been able to grant amnesty and we are in fact bound by that.

CHAIRPERSON: There you get the situation of - I'm not, those are all differed as well, you get the situation of some of those people were not involved in the waging of war, if I could put it like that, they were writing articles and stuff like that but they weren't involved in the waging of war. Here we've got an applicant who was right at the centre of the conflict, the armed struggle whereas you get a lot of those other 37's, they weren't associated with it, they were in leadership positions, granted, but they weren't actually directing a war, issuing orders to soldiers to go out there and kill and let's get the hardware through for it in clear infiltration routes. That sort of thing, I think there's some difference between that type of application and the application of a journalist who was writing about things and not actually involved for instance.

JUDGE MOTATA: And before you respond, the evidence before us goes further, that there were other operatives who had given some discretion of identifying targets but those operatives were under General Nyanda, those operatives were committing some acts or offences of crimes or doing something of that nature. What do we do in that instance if you may assist in that regard?

MS PATEL: The difficulty I have with that, Honourable Chairperson, is that we're obliged in terms of the Act to investigate all acts, offences or incidents for which the applicant then applies for. It may be all well and good for the General to come and say that the operatives were entitled to take decisions on the ground but without us in fact having investigated those incidents or acts, how are we in a position to determine without any evidence before us whether in fact those operatives acted in terms of those guidelines? We're not in a position to say that and so on what basis do we say that ...(intervention)

CHAIRPERSON: Sorry. If I give an order - just on that point - if I give an order to say okay, you go and attack installation X, act within the guidelines and then the operative takes that and goes and exceeds those guidelines, does that effect my giving the order, my liability?

MS PATEL: I think it would effect my liability or the General's liability to the extend, Honourable Chairperson.

I think it would effect the liability of the person authorising the operation to the extent that he is responsible for the conduct of those operatives. So yes, if he says that I authorise a sub-station to be bombed and the factual evidence is that a woman who was found at the sub-station was raped in the process, clearly that is something that goes beyond the order that was given and he cannot apply for amnesty for all acts and offences, that arises out of that incident and to that extent I have a difficulty with us granting - and I say it again, a general amnesty in terms of acts and offences that we are not aware of, Honourable Chairperson and that the General himself is not aware of and certainly in terms of him, the onus resting on him for full disclosure to be made to us, my submission is that he cannot have made full disclosure and I have full sympathy with the reasons why he couldn't or a person in his position possibly may not have been able to make full disclosure but he still needs to comply with the requirements of the Act.

CHAIRPERSON: Excuse me. Mr Motloung. Ms Patel, is the requirement for full disclosure that the applicant should disclose what is within his or her knowledge or to tell a full story about the incident? What are we expected to understand about the requirement for full disclosure?

MS PATEL: Well, Honourable Chairperson, Mr ...(intervention)

CHAIRPERSON: It must be a full disclosure relating to his acts or omission.

MS PATEL: Well, Honourable Chairperson, that's been a sore point with me for a very long time. I've argued this many times as to whether full disclosure means that an applicant can come to us and say there were ten of in the room but I only smacked the person who was being interrogated and he can then qualify for disclosure or does full disclosure mean that he is sitting in a room with ten people who have interrogated and assaulted a person and he then refuses to tell us what the other lines ...(intervention)

CHAIRPERSON: Of all relevant facts, he must make a full disclosure of all relevant facts that he knows and if you're a witness to other people committing the offence then you've got to make that, you've got to disclose it but if you supply the gun that's going to do the murder, all you know about is the actual supplying of the gun. That's all you need to give about, you don't have to then give disclosure about how the murder took place, I'm sure not.

MS PATEL: The full disclosure, Honourable Chairperson, is not an isolated thing, it has to be linked to an act, an omission or an offence and my submission here is that what is the act, offence or omission that the General is applying for in terms of which he has made full disclosure. There isn't the act, omission or offence and so the full disclosure doesn't - I mean he can't even say that he has made full disclosure in respect of that. If there are any spectre of General Shoke and Mr Rasegatla, I believe that they should qualify for amnesty, Honourable Chairperson. Thank you.

CHAIRPERSON: Mr Motloung, I see you're putting up your hand?

MR MOTLOUNG: Thank you Mr Chairperson. Mr Chairperson, it's basically two points. Can I briefly state that firstly I cannot see how full disclosure can have any other meaning except something that is expected to be within your knowledge, that should take care of the full disclosure but the actual point that I really wanted to talk on is that there is a small amendment or alteration that I wish to make to my submissions. Can I ask for your understanding because as far as the submissions by the ANC to the TRC are concerned, myself in particular, when the bundle was given to me these were not part of the bundle and therefore the information that I'm getting now is something that I'm getting during these proceedings. I have asked Mr Wagener here if the list of the 37 incidents mentioned by the General Nyanda are all mentioned in the submissions to the TRC and he seems to hold a view that yes, all 37 in fact form part of those submissions. I then said to myself that if that is indeed the case, in the light of the evidence given by the General that in fact some form of a Committee was constituted to try and get all information led into the acts and/or deeds that the ANC was responsible for, if any of these 37 or if all of them do appear in those submissions to the TRC despite the fact that he, as he testified today, was able to say that he himself would not be able to be certain whether his operatives were responsible therefore or not. I would then amend my argument accordingly and say that if as I understand there was a committee and this was a difficult mission where several people beyond himself had to come together and we find that through that Committee a certain act forms part of the 37 and is part of the TRC submissions, then in respect of those that do appear there, we would have no opposition.

CHAIRPERSON: Unless they were - we've already dealt with it, special operations.

MR BERGER: Chairperson, just for the record it's 38 because the Johannesburg Magistrate's bomb is also referred to.

CHAIRPERSON: Sorry, it might be 40 because of the other two, Uncle Tom's and Watloo.

MR BERGER: Indeed, but we are agreed that all of the incidents that have been identified today are in fact referred to in the ANC Submissions.

CHAIRPERSON: Mr Berger, do you have any reply? Sorry, Mr Wagener, do you have any reply to Mr Berger's argument on the point that you took? Were you not finished?

MS PATEL: Sorry, Honourable Chairperson, I was but just in respect of the Johannesburg car bombing, it had slipped my mind, I thought we would deal with that off the record but seeing that Mr Berger has now stated that that is one of the matters for which he has applied, there's a clear contradiction in that application that was heard. The General, my understanding is that the General's legal representative at that stage had confirmed that he was not applying for that incident. I don't know on what basis that incident is now once again added to the application?

MR BERGER: Chairperson, I wasn't there but my attorney was there and what was said was that General Nyanda was not an applicant in that application?

CHAIRPERSON: At that hearing?

MR BERGER: At that hearing, yes.

CHAIRPERSON: Mr Wagener?

MR WAGENER IN ARGUMENT: Thank you Mr Chairperson. I do not intend addressing you on any issue apart from what has been referred to as the point in limine and I would like to briefly respond to certain aspects mentioned by Mr Berger and also by you, Mr Chairperson.

The question was asked whether there was perhaps a difference between General Nyanda's application and that of Brigadier Schoon. From my own knowledge I may respond by saying yes. Brigadier Schoon went much further, he actually specified incidents, he did his utmost best to take the Amnesty Committee into his confidence and tried to make a full disclosure as he read the Act and he did give a number of incidents although he said he's an old man, his career spanned some four plus decades, he's been in retirement for a number of years, he tried his best to remember. So yes, there was a difference, I think Brigadier Schoon did better than General Nyanda.

Then Mr Chairperson, you mentioned on a number of occasions this afternoon words to the effect that at least there had to some sort of application before the Amnesty Committee or else it is too late. Now Mr Chairperson, with great respect, if one tests that statement you realise what the results may be. It is a well known fact that I represent a large part of the old command structure of the then South African Police and many people in more or less the same position or exactly the same position than General Nyanda and they were advised on the strict wording of the Act all along. You can't ask for amnesty in a general sense, you can't apply for general amnesty by just saying I was a Commander for 40 years and people under my command may or may not have committed acts - crimes, therefore they filed no applications whatsoever.

CHAIRPERSON: But you see that now gets down to the giving of advice etc. etc. I'm sure in respect of General Nyanda's application and indeed in respect of the application of the 37 ANC that went through to the Court, that there's no question of any male fides or anybody trying to duck the law. When these application forms were filled in, the process hadn't really started, people weren't hundred percent sure they hadn't sat down and gone through the sections with a fine tooth comb etc., but the fact is they had to - what I'm trying to say, they had to be - we can't allow, we can't consider a late - an application that was for the first time lodged after the cut-off date. If there's an application that was lodged before and it's registered etc, even though it might not have been attested to by a Commissioner or there's a lack of detail, then at least it's an application that falls for refusal or granting, for a decision.

MR WAGENER: Mr Chairperson, then only a closing remark and again this is done with great respect. Has the stage not been reached where the Amnesty Committee should consider approaching the legislature that they should come forward with a piece of new legislation dealing with this exact problem of people in command structures on both sides of the conflict of the past, how to deal with their positions because one again, Mr Chairperson, I have ...(intervention).

CHAIRPERSON: That is the submission made by the Generals of the Defence Force, I think they've put up something to that effect.

MR WAGENER: Mr Chairperson, I haven't seen that but no, I think that is something that actually dealt with something different. What I read in the media was that the Defence Force Generals asked for a general amnesty as we had in the present Namibia where someone could then, if charged in a criminal court, then raise as a special plea that he had received amnesty and that that will then be a question to be decided by that criminal court. That is not what I'm suggesting, I'm merely suggesting the situation of the command structures where there's many other General Nyandas in the same arena who don't know what happened, what was done by operatives at lower levels in terms of what was perceived by them as instructions by their command structures because Mr Chairperson, I can see, with great respect, all sorts of problems arising if that is not the avenue to adopt because even if you decide here that General Nyanda was not too late as was decided, Brigadier Schoon was too late. You still have a problem that amnesty is granted to a person who doesn't even really know and with respect to General Nyanda, I can understand his position, I consulted with many people in situations quite similar to his, they don't know. So you then grant amnesty for acts for which there's no real evidence before you and then the only other alternative would have been like what the original Committee did with Hechter and Van Vuuren saying we can't grant you amnesty now but maybe later on but the problem with that, Mr Chairperson, is that later on may never arise and the books can then never be really closed on that part of our history. So if I may then through you make a suggestion, I would appreciate that. Thank you Mr Chairperson for listening to me.

CHAIRPERSON: Thank you Mr Wagener. Is there anything further anybody else wishes to say or is that the end of this hearing?

MR BERGER IN REPLY: Chairperson, if I could just have some closing remarks? If I could just deal with Ms Patel's submissions?

In respect of those operations which General Nyanda says well, he can't be certain that those were under Transvaal Urban Machinery, if those are acts that Mr Ismail claims responsibility for, for special operations, well then if the Committee was satisfied that he was responsible for those acts, then those are excluded. Clearly then, General Nyanda can't be criminally or delictually liable for those. We have no problem with that and those have been mentioned, those specific item numbers have been mentioned by Mr Wagener. On another point, Ms Patel and Mr Wagener expressed great sympathy with General Nyanda for the difficult position that he is in and it's really such a shame but the question is not whether one such sympathise with General Nyanda but whether it was ever the intention of the legislature to put people like General Nyanda in such a position because we must assume that the legislature had all of these considerations in mind when the legislature was passed. After all it's legislature which was passed by the present democratically elected parliament and that legislature knew full well of the position of MK Commanders who were issuing instructions and who did not have the knowledge of what actually transpired in many instances on the ground. Was it ever intended that such acts should not be given amnesty for? I submit not.

As far as instructions which go astray are concerned, well that's quite right, then if the going astray was never foreseen or foreseeable, if instructions were given to a unit to go into a particular area and carry out an operation and in the process of that women were raped, clearly that is not within the parameters of the order but then equally clearly, the Commander who gave the initial instruction would not be liable for the rapes which occurred. It's only those instructions which led to the carrying out of operations within the parameters of the instructions for which the Commander can be held responsible and for which the Commander applies for amnesty.

Dealing with that point, it's also linked to the question of full disclosure. Our submission is that full disclosure can only be full disclosure of all relevant facts that are within your knowledge. It can't be full disclosure of anything else because then it's putting an impossible burden on an applicant for amnesty and that could never have been intended, but ...(intervention)

JUDGE MOTATA: Then would others which would fall within the first leg politically motivated and say well, some of these acts are politically motivated, then the second leg of full disclosure and say even though there's not full disclosure therefore, he can get amnesty?

MR BERGER: No, I'm not suggesting that at all.

CHAIRPERSON: I think that - sorry to interrupt Mr Berger, this question of full disclosure, a person will be refused amnesty if the Committee is satisfied that he hasn't given full disclosure and that means that the Committee either knows or is of the view that the applicant is one, lying ...(intervention)

MR BERGER: Or he is holding back.

CHAIRPERSON: Or he is holding back stuff that he does know and feels strongly about that. If the applicant knows only a little fact, a little few facts and then gives them and the Committee is satisfied that he has done all he can, then that's a full disclosure although it only covers a little compartment of the whole incident. I think that's quite clear. So we've got to really feel that the applicant hasn't been forthright.

MR BERGER: And that is my submission Chairperson, if one looks at section 20.1 of the Act. It says that if the applicant, if the application complies, if it's an act associated with a political objective and if the applicant has made full disclosure of all relevant facts - then it goes on to say it shall grant amnesty in respect of that act, omission or offence so - and I'm focusing on act and I'm saying that General Nyanda says he sits in a command position and he gives instructions to unit to go into the country as part of Transvaal Urban Command and carry out attacks in which people are killed or injured and he is saying for that act, for that instruction, that's what I want amnesty for, over and above the incidents that are specifically recorded.

JUDGE MOTATA: I raised the very question with Mr Motloung because now I've had an opportunity to look at the Act again and if you look at 19.4, it says when a hearing shall be held is that in terms of 19.4 the applicant should be notified of the hearing, the victim and any other person implicated and now we've had a hearing here. We say okay, we have been given a schedule, people have been notified and then we say no, no, but we look at the document compiled as well, there are other acts where the applicant is involved, like in the instance of General Nyanda, that now we should consider that as well. I say would that be compliance with the Act because we should have given notice to other people who have an interest in the hearing, like the victims, the implicated persons. Would that, if I follow your argument, be compliance with the Act?

MR BERGER: Well Judge, we don't know who the victims are, we don't know if there are any victims. That is the difficulty and my submission is that one has to give some meaning to the legislation. One can't say that the legislature intended to deprive someone in the position of General Nyanda from being amnestied, if I can use that word, from being protected from civil and criminal liability because he comes forward and he says, I was that person who was in charge and I sent units into the country and I don't know everything that happened within the country because of whatever lack of information and secrecy and so on. Could the legislature ever intended to say to someone like General Nyanda, come forward, expose yourself and then there's no remedy, there's absolutely no remedy for you? As Mr Bathender argued in the Constitutional Court the other day, he says a right without a remedy is not a right at all and that's what I'm submitting now. The obligation is to come forward, disclose everything you know. The remedy is you get amnesty. Now the suggestion is you come forward, you disclose everything you know, you expose yourself to liability but yet you're not entitled to amnesty.

JUDGE MOTATA: No, it doesn't. Even where I gave instructions but I am not aware of those, doesn't it go further than there or is that not your argument, otherwise I'm not following you?

MR BERGER: No, he's not saying even though I'm not aware of instructions, he is saying I gave instructions, I sent people into the country. Sometimes we identify the targets in advance. Other times we gave the operatives a discretion and I don't know always which - or I can't recall which operations were carried out under my control. Now we're saying if you sent those operatives into the country, you gave them a discretion, they carried out your command and they acted within the guidelines. Because of communication problems and it never came back to you, are you not eligible to be amnestied for that and my submission is that the legislature couldn't have intended that General Nyanda expose himself and then not be entitled to amnesty.

JUDGE MOTATA: Wouldn't that be a simple problem then that if someone who comes forward and say I attacked or committed this offence and I did so with the blessings of General Nyanda and he is not aware those are some of the incidents where he says whilst you have infiltrated the country you've got a discretion which targets to attack. Under those circumstances, if he's implicated he can come forward under those auspices or probably say that incident as well, even though he would not be strictly speaking an applicant in respect of that incident like we are referring to the Johannesburg Magistrate's Court where he was present but he said in this hearing I am not an applicant and it arises in our hearing. So there should be a difference there because what the Act envisages is that it empowers the Committee, the Amnesty Committee to say if an incident has been identified by an applicant, then the Amnesty Committee has the Investigative Unit which could look at it and investigate it fuller and inform other people who might be mentioned in that.

CHAIRPERSON: Yes, that's only where there's been a gross human rights violations, it doesn't apply to all the ...(inaudible).

MR BERGER: But the problem, Judge, is if you had to apply for amnesty, if you had to mention that incident by name but didn't prior to the cut-off date and other people have put in amnesty applications of which you are unaware and then it comes up, on Mr Wagener's analysis you're out, you have no protection.

CHAIRPERSON: Start getting to end the ...(inaudible)

MR BERGER: Chairperson, I'm almost done with my submissions. My learned friend, Mr Wagener, says that he advised the old members of the SAP that they couldn't apply and he now raises the spectre of the flood gates being opened and hundreds of old police generals rushing forward. If they never made application for amnesty, as I've already submitted, they're in a different class but the important point which Mr Wagener forgets is that the South African Police and the old South African Government never put forward anything which resembles the submissions that were put forward by the ANC where attacks were detailed and it's those attacks that General Nyanda refers to in his initial application. If old police generals had referred to something like this in their original applications, I would submit that they're in, but they never did that because there were no such submissions on behalf of the South African Police. In fact in 1997, if my memory serves me correctly, the Police were still denying responsibility for a whole host of murders which have subsequently been attributed to them. The spectre of opening the flood gates, with respect, is not a real one. I thank you.

CHAIRPERSON: Yes, well thank you, that then brings this hearing to a conclusion and indeed - sorry Ms Patel?

MS PATEL: Sorry Honourable Chairperson, before you do, I think you intimated earlier on that parties would be allowed to hand in supplementary heads in respect of the ANC 37 and can we just get a time frame to that please?

CHAIRPERSON: Ms Patel has just mentioned - as I mentioned, during the course of next week we'll get hold of the Schoon decision and the ANC 37 decision and forward them to the legal representatives and then if you wish to make any further comments or submissions you can do so but as Ms Patel says, it's better to have some sort of time schedule. Perhaps within two weeks of having received them we'll fax them so we'll know when you've received them.

MR BERGER: That is in order, Chairperson, if you could also ask Mr Wagener to make available Brigadier Schoon's amnesty application so that we can do a proper comparison?

CHAIRPERSON: We should have that in our records in Cape Town so perhaps we can get hold of that relevant application and decision. If we have any difficulties trying to identify it then, Mr Wagener, we'll communicate with you and you might be a bit more specific to help us. Thank you.

...(inaudible) for their assistance. I'd also like to thank all the people who made this hearing possible. Thank you very much indeed for what you've done, the translators who had quite an intense two days, we sat late last night, yesterday, we're sitting a bit later today as well. Thank you very much. And to the caterers, to the suppliers of the hall, the sound technicians, television man, everybody concerned, thank you very much. We will reserve our decision in this matter and it will be handed down in written form. Thank you.

HEARING ADJOURNS