CHAIRPERSON: This morning we are going to continue with the applications of Messrs Botha, du Preez, Wasserman, Steyn and van der Westhuizen, in respect of the incident arising out of the deaths of Charles Ndaba and Shabalala.
I would like to place on record the at commencement that Adv Poswa communicated with me last week and indicated that she would not be available today, but has made arrangements for Mr Wills to take over the representation of her client. I understand that he has arranged to see Mr Ndaba, and that that is the position.
MR WILLS: Yes thank you, Mr Chairperson, that is position, I've confirmed the instructions with the Ndaba family.
CHAIRPERSON: Apart from that the representation is as before and we can continue, I don't think it's necessary to place it on record again.
MR VISSER: Thank you. Good morning Chairpersons and Members of the Committee, Visser on record. Chairperson, we had reached the point where we have one applicant whose evidence is still to be presented. He is present, he's Mr van der Westhuizen. He's ready to take the oath and he has no objection to taking the oath, Chairperson.
CHAIRPERSON: What language will he be talking in?
MR VISSER: He'll be speaking in Afrikaans, Chairperson.
MR LAX: Good morning, Mr van der Westhuizen.
MR VAN DER WESTHUIZEN: Good morning.
MR LAX: Do you have any objection to taking the oath?
CASPER VAN DER WESTHUIZEN: (sworn states)
MR VISSER: Thank you, Chairperson. May I refer you to an exhibit previously handed in at the last hearing, marked Exhibit M, which is a summary of the evidence of Mr van der Westhuizen. Chairperson, you would have noticed on a reading of Exhibit M, that the scheme that was followed with his evidence in order not to repeat everything that previous witnesses had testified to, was to use the method of referring to paragraphs in Exhibit D, that is the statement by Botha, and then to say whether he has personal knowledge or not, and if so, what it was etcetera.
Chairperson, this was done at a time when Justice Mall was still the Chairperson, and it was not foreseen at the time that we would rehash everything that Botha had said. There may be a difficulty from the new Chairman's point of view, and if I go too briefly Chairperson, perhaps if I might ask you just to ask me to enlighten you what we're talking about, if we do lose you along the way. I'm not thereby suggesting at all that you don't follow very quickly and get up to speed very quickly, but please do feel free too check me, Chairperson, if I go in full flight and going to fast.
CHAIRPERSON: Having read the record, Mr Visser, I'm sure there are many points on which you will lose me, in which you will have to check me, but the one to start is, I do not think, I may have overlooked it, I think the exhibits had been handed in but I don't think it had been marked M yet, but if it hadn't been, it will now be marked M. That is van der Westhuizen. You handed in in fact, all the statements.
EXAMINATION BY MR VISSER: Yes, yes. Thank you, Chairperson.
Mr van der Westhuizen, you are an applicant in the incident during which Mr Ndaba and Mr Shabalala were killed, is that correct?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: And you are applying for abduction, kidnapping or unlawful arrest Mabuso Shabalala, your share in the unlawful detention or depravation of freedom of both Messrs Ndaba and Shabalala, the murder of both Messrs Ndaba and Shabalala, the intentional damage of property with regard to a Toyota Corolla vehicle, or any other offence which may emanate from the facts, including conspiracy, aiding and abetting, defeating the ends of justice or perjury with regard to the incident, or any unlawful deed or offence or delict.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: We can find your application on page 95 of the Ndaba bundle, and you deal with the facts from page 104 to 105.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Now you have previously studied a document which has been served before the Committee as Exhibit A, it is entitled "General Background to Amnesty Applications". Have you studied this document?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: Are there any sections of that document which you cannot incorporate with your evidence because it is not of application to you?
MR VAN DER WESTHUIZEN: That is correct, that would be the section pertaining to Lesotho and Botswana.
MR VISSER: And regarding the rest of Exhibit A, would you be able to confirm the correctness thereof from within your own knowledge from when you were a policeman? And do you request that this be incorporated with the evidence that you will give before this Honourable Committee?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: In B on page 1 of Exhibit M, you have stated that you have testified before an Amnesty Committee previously and that this was with regard to the application pertaining to the murder of Pumezo Nxiweni, is that correct?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: It is spelt N-x-i-w-e-n-i, for purposes of the record.
And subsequently you have also testified during another application.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Which application was this?
MR VAN DER WESTHUIZEN: It was with regard to Ntombi Kubeka.
MR VISSER: And you refer the Committee to that evidence of yours and inasfar as it may be necessary, you request that this also be incorporated in your evidence here today.
Could you just page to page 2. I will follow the method of leading you through the paragraphs containing the cross-references which you can clarify if necessary. You refer to Exhibit D, and that is the summary of the evidence of Hendrik Johannes Petrus Botha, that is Col Botha. Is that correct?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: And you state in paragraph 1, that you were present and that you listened to the evidence of Gen Steyn and Col Botha before this Committee, and you state that you concur with this evidence, particularly with the evidence of Col Botha regarding the facts and events with reference to Exhibit D.
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: If we can then compare your statement and that in Exhibit D, you state in paragraph 1.1 - or perhaps you could just read it and I can stop you if any explanation is necessary. 1.1.
MR VAN DER WESTHUIZEN
"I had knowledge of the facts set out in paragraph 4, and during the weekend when the events occurred I was informed of the content of paragraphs 3, 5, 6, 7, 8, 9, 10 and 13."
MR VISSER: Now Chairperson, I would appreciate your direction, I can now go to paragraph 4 and give a short summary of what that paragraph says, as well as with all the other paragraphs, or I can simply continue.
CHAIRPERSON: Is this paragraph 4 of Exhibit D?
MR VISSER: Yes, Chairperson, that's the one that says
"Tami Zulu was removed from Swaziland by the ANC and recalled to Lusaka in Zambia."
Now that he says - that he knew. Then he says the rest of those paragraphs 3, 5, 6, 7, 8, 9, 10 and 13, he says he had knowledge of.
CHAIRPERSON: I think we've all got Exhibit D, I don't think it's necessary for him to read it out.
MR VISSER: Yes, we thought so Chairperson, but that's why I just raised the query. If you feel that I should, please just tell me, then I will.
CHAIRPERSON: I think you should if there is anything in them that is controversial and that has been challenged, that we should get his version, the applicant's version of what happened, not merely a "I follow the previous ..."
MR VISSER: No from that point of view, certainly we will do that.
Will you continue with paragraph 1.2.
MR VAN DER WESTHUIZEN
"The information which is contained in paragraphs 11 and 12, were general knowledge."
MR VISSER: Yes.
MR VAN DER WESTHUIZEN: 1.3
"I confirm that Maj du Preez informed me telephonically on the particular Saturday, 7 July 1990, regarding the arrest of Ndaba. I also confirm the information which is of application to me, in paragraphs 15, 16, 17, 19, 21, 22, 23 and 24."
MR VISSER: If I might just highlight something. This deals with the fact that you went to CR Swart Square and that you met Mr Ndaba there under arrest, and that an askari had arrested him, or that askaris had arrested him, and that you received information from Botha, that Ndaba was indeed an informer of his, is that correct?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: The information that Mr Ndaba was an informer, was this news to you or was this something that you already knew?
MR VAN DER WESTHUIZEN: It was news.
MR VISSER: It was put to the witnesses that Mr Ndaba was assaulted at CR Swart Square, did you assault Mr Ndaba there?
MR VAN DER WESTHUIZEN: No.
MR VISSER: Did you witness anybody else assaulting him there at CR Swart Square?
MR VAN DER WESTHUIZEN: No.
MR VISSER: With regard to the assault, can we just deal with this. You have already confirmed that Mr Ndaba was transported to the safehouse which you used.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: This safehouse was in Verulam. Tell me, is Verulam a town or a region, what is it exactly?
MR VAN DER WESTHUIZEN: There is a town called Verulam, but it is actually an agricultural region.
MR VISSER: Very well. And within that area you had a safehouse, and now I just want to ask you ...(intervention)
CHAIRPERSON: Before you go on, can I seek to clarify something which I'm a little confused on, it may mean going back. In his statement he says he confirmed paragraph 15, 16, 17, 19, 21, 22, 23 and 24, he does not confirm 18.
MR VISSER: No, Chairperson.
CHAIRPERSON: So when he, in 19 says
"The rest of the members and I ..."
... who is he talking about?
MR VISSER: Thank you for pointing that out, Chairperson. May I just have a moment? Chairperson yes, this is clearly an oversight on my part, and thank you for pointing that out.
Will you please look at Exhibit D, paragraph 18, Mr van der Westhuizen, it deals with what took place at CR Swart Square. Could you just read paragraph 18 of D. You will see that it is alleged that you were present there and you have just confirmed this, could you confirm this paragraph as well?
MR VAN DER WESTHUIZEN: Yes that is correct, Chairperson.
MR VISSER: I do apologise Chairperson, I didn't notice that it wasn't here.
Very well, if we could continue. We have the same problem here with paragraph 24 it would appear, paragraph 24 of Mr Botha's statement states that -
"Approximately 100 metres before the rendezvous point, Mr Ndaba was dropped off and that he, Botha and you, followed Ndaba on foot."
Oh I see it is in 1.3, I'm sorry Chairperson. Yes, that is there.
Do you confirm this?
MR VAN DER WESTHUIZEN: Yes.
MR VISSER: Very well, will you proceed with paragraph 1.4.
MR VAN DER WESTHUIZEN
"I also confirm the content of paragraph 25, except that I recall the arrest somewhat differently to what Col Botha testified in his oral evidence. It is my recollection that we pretended that we would be arresting Ndaba as well. In my opinion it was done in order to bring Shabalala under the impression that both of them would be arrested in order to protect Ndaba's status as an informer. Of which I had already been informed at that stage."
MR VISSER: Could you inform the Committee what your role was with this arrest.
MR VAN DER WESTHUIZEN: Before the arrest I was on foot with Mr Botha. After the sign was given by Mr Ndaba, we approached the vehicle. Mr Botha went to the driver's side of the vehicle. I cannot recall clearly where I was positioned, but I can recall that it was towards the passenger's side of the vehicle. I then went through the process of arresting Mr Ndaba as well.
MR VISSER: What happened to Mr Ndaba then? He was seated on the left side of the vehicle?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: And Mr Shabalala was behind the steering wheel?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: So you were on Mr Ndaba's side?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Did you do anything? Did Mr Ndaba remain seated there? What happened?
MR VAN DER WESTHUIZEN: He was removed from the vehicle and handed over to Col Botha.
MR VISSER: Did you pull him out of the vehicle physically or what was the position?
MR VAN DER WESTHUIZEN: Yes, I think I can recall that I removed him from the vehicle.
MR VISSER: As one would do during a normal arrest?
MR VAN DER WESTHUIZEN: Yes, during a normal arrest.
MR VISSER: And you stated that you handed him over to Botha, what did Botha do then?
MR VAN DER WESTHUIZEN: He returned with Mr Ndaba to the vehicle.
MR VISSER: To your vehicle?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And what did you do?
MR VAN DER WESTHUIZEN: I climbed into the Toyota Corolla.
MR VISSER: Where?
MR VAN DER WESTHUIZEN: On the driver's side.
CHAIRPERSON: You say you went through the process of arresting Ndaba, did anybody go through the process of arresting Shabalala?
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR VISSER: What did you see there?
MR VAN DER WESTHUIZEN: Col Botha went through the process of arresting Mr Shabalala.
MR VISSER: By doing what?
MR VAN DER WESTHUIZEN: He pulled out his pistol and aimed it at Mr Shabalala, he put it into the vehicle.
MR VISSER: Did you hear what he said to Mr Shabalala?
MR VAN DER WESTHUIZEN: I cannot recall what he said.
MR VISSER: And where were du Preez and Wasserman?
MR VAN DER WESTHUIZEN: They then approached the vehicle and Mr Shabalala was immobilised and placed in the back of the vehicle by them.
MR LAX: Could you just repeat that, Mr van der Westhuizen, you put your head down as you were talking and unfortunately your words disappeared behind the bench here.
INTERPRETER: The speaker's microphone is not on.
MR VISSER: Oh I'm sorry.
Mr van der Westhuizen, you have just stated that Wasserman and du Preez immobilised Mr Shabalala, can you explain what you meant by that?
MR VAN DER WESTHUIZEN: They held him in the back of the vehicle.
MR VISSER: Were both of these persons with Mr Shabalala in the back of the Toyota?
MR VAN DER WESTHUIZEN: As far as I can recall, yes.
MR VISSER: You were in the driver's seat, what happened after that?
CHAIRPERSON: Well no, before you go on, you've told us now that Botha stuck his pistol into the man's stomach. That is hardly an arrest is it? It's certainly not what I understand to be arrest in terms of our law.
MR VAN DER WESTHUIZEN: No, it was not.
CHAIRPERSON: We have then heard that he was dragged over the back of the seats and held down with his head on the floor. Was that an arrest?
MR VAN DER WESTHUIZEN: Not according to the law, Sir.
CHAIRPERSON: No. What you saw happening was he was forcibly seized by the police, but there appears to have been no attempt, even a pretence of an arrest on any charge. Nobody warned him, nobody told him he was being arrested on any charge, did they?
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR VISSER: And that is the reason why are requesting amnesty, because it was an unlawful "arrest".
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: It was indeed an abduction.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
CHAIRPERSON: Yes. So you didn't have to pretend to arrest Ndaba, you could have abducted him too as you had Shabalala. That would have made Shabalala think they were being treated in the same way, wouldn't it?
MR VAN DER WESTHUIZEN: Yes that is correct, Chairperson.
MR VISSER: But Mr van der Westhuizen, according to your insights, Mr Ndaba was arrested in the sense of a lawful arrest, or was it the same situation?
MR VAN DER WESTHUIZEN: It was the same situation.
MR VISSER: As with Mr Shabalala?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: He was simply seized.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: In paragraph 1.6 you have referred to paragraph 28, and you confirm that an order was issued by Mr Botha to go to the safehouse in Verulam in order for him to talk to Mr Ndaba, but you state that you do not know what the reason was that he wanted to talk to Mr Ndaba. That is what you state in paragraph 1.6.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And you also state that you do not have any personal knowledge of the rest of paragraph 28 and paragraphs 29 and 30.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Then we proceed to paragraph 31, which deals with the fact that Col Botha spoke to Ndaba at the safehouse and that they were planning to replace him. Could you just deal with paragraph 1.7 please.
MR VAN DER WESTHUIZEN
"I also confirm the contents of paragraphs 31, 32, 34 and 35. I know that Col Botha kept Gen Steyn up to date with all developments. I am not capable of stating when it took place or on which occasion it took place."
MR VISSER: Proceed, 1.8.
MR VAN DER WESTHUIZEN
"Over the weekend I spent most of the time on the premises of the safehouse with both Shabalala and Ndaba, and had discussions with them. Ndaba spoke to us freely regarding his knowledge of Operation Vula.
We did not receive any orders to attempt to recruit Shabalala as an informer or to attempt to obtain information from him. I want to state it clearly that none of the two persons were ever arrested(sic) by us while they were with us."
MR VISSER: There at the safehouse?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Proceed.
MR VAN DER WESTHUIZEN
"I agree with the contents of paragraphs 36 and 37."
MR VISSER: This deals with the negotiation process and the viewpoints of the ANC at that stage, is that correct, and then there are also statistics in paragraph 37.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Would you then proceed to paragraph 1.10.
ADV BOSMAN: Mr Visser, may I just come in here, I'm rather concerned about the record. It was translated that
"I want to emphatically state that none of the two people were arrested while in our custody."
May I just enquire from the interpreter, wasn't it assaulted?
MR VAN DER WESTHUIZEN: Assaulted.
MR VISSER: Assaulted.
ADV BOSMAN: Assaulted. If we could just get the record straight there. Thank you.
MR VISSER: Thank you, Commissioner Bosman. Thank you, I wasn't listening. One of us must listen perhaps.
Very well, you were at paragraph?
MR VAN DER WESTHUIZEN: 1.9, I'm proceeding to 1.10.
"To a lesser or greater extent I am informed regarding the contents of paragraphs 39, 40 and 41. I confirm the content of paragraphs 42, 43, 44, 45, 46, 47 and 48."
MR VISSER: And this deals with the journey to Pretoria by Gen Steyn and Col Botha and the arrest of Gen Nyanda and further arrests which took place.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Will you proceed.
MR VAN DER WESTHUIZEN
"I was aware that Gen Steyn and Col Botha visited Pretoria for a second time that Friday."
MR VISSER: We know that that Friday was the 13th of July.
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: Please continue.
MR VAN DER WESTHUIZEN
"I confirm paragraphs 49 and 50, and I have knowledge of paragraphs 51, 52, 53, 54, 55, 56, 57 and 58."
MR VISSER: How did you come to have knowledge of those last-mentioned paragraphs, did you experience this yourself or what is your position? Were you informed?
MR VAN DER WESTHUIZEN: I was later informed about this.
MR VISSER: If I may just return - or no, it is not necessary. Please continue.
MR VAN DER WESTHUIZEN
"The content of paragraphs 59, 60, 61, 62, 63, 64 and 65, concur with my knowledge and insight."
MR VISSER: That is the question pertaining to discussions or considerations regarding the position of both Mr Ndaba and Mr Shabalala.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Regarding detention, release and also the question of elimination.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And if you say that this concurs with your knowledge, are you saying that that is what you heard or experienced at the Security Police?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Very well.
MR VAN DER WESTHUIZEN
"Then I confirm paragraphs 67, 68, 69, 70, 71 and 72, particularly with regard to my role."
MR VISSER: Now Mr van der Westhuizen, it is actually the only section regarding which you actually have personal knowledge, regarding which you could actually testify, and perhaps I should ask you the following. This deals with the circumstances which took place when Mr Ndaba and Mr Shabalala were removed in order to be eliminated.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Prior to the time, was the question whether the considerations regarding elimination ever discussed by anybody with you?
MR VAN DER WESTHUIZEN: No.
MR VISSER: And how did it happen that you went along? Did somebody tell you to accompany the group or did you go out of your own free will to eliminate these persons?
MR VAN DER WESTHUIZEN: Mr Botha requested me to assist with the elimination.
MR VISSER: Yes, I know that you like to refer to an officer that instructed you, but was this a request that you could refuse or was it an order? How did you interpret it?
MR VAN DER WESTHUIZEN: At that stage it was an order, Chairperson. I saw this as an order.
MR VISSER: What was your position ...(intervention)
CHAIRPERSON: To commit what was clearly an illegal act.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
CHAIRPERSON: That is an order he had no authority to give.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR VISSER: And what was your position at the time of this incident, with regard to the rank order?
MR VAN DER WESTHUIZEN: I was a junior in the section.
MR VISSER: What was your rank?
MR VAN DER WESTHUIZEN: I was a Sergeant.
MR VISSER: Were you the most junior member of the group of people?
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: And what was the rank that Botha occupied at that stage, can you recall?
MR VAN DER WESTHUIZEN: He was a Colonel. Perhaps he was a Major, I'm not certain, I cannot recall.
MR VISSER: You then drove with the kombi, who drove the kombi itself?
MR VAN DER WESTHUIZEN: I was driving.
MR VISSER: And before you departed, a reconnaissance was conducted of where you would go that evening.
MR VAN DER WESTHUIZEN: That is correct, I personally conducted the reconnaissance.
MR VISSER: Was this under the order of anybody?
MR VAN DER WESTHUIZEN: Yes it was, under the orders of Mr Botha.
MR VISSER: And what were you looking for, what did you find?
MR VAN DER WESTHUIZEN: There was a suggestion from somebody, I cannot recall precisely who made the suggestion and why they suggested this, the suggestion was to find a suitable place near a river mouth, in order to get rid of the deceased.
MR VISSER: There have been many references to the Tugela River mouth, you indeed returned and suggested that it would be the Tugela.
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: But if I have correctly understood the reports which have been submitted before us, were these bodies placed in the water at the river mouth or further up in the river?
MR VAN DER WESTHUIZEN: No, further up in the river.
MR VISSER: And were you present when the TRC Investigating team went to look for this place?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Did you make any identifications?
MR VAN DER WESTHUIZEN: No, Chairperson, I was present and I could confirm that I was present there, but I didn't make any definite identifications.
MR VISSER: Can you recall who did?
MR VAN DER WESTHUIZEN: I cannot recall, it was either Wasserman or du Preez or Botha. I cannot recall.
MR VISSER: Just one further aspect which has occurred to us, and that is that perhaps the family would be interested in visiting this place, due to the fact that by means of cross-examination they have made it known that they are unhappy with the fact that they did not receive the remains of the deceased. Is it possible for you to identify this place if a journey were to be undertaken to this place?
MR VAN DER WESTHUIZEN: Definitely.
MR VISSER: And would you be prepared to travel to this place with the family, in order to identify the place to them?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Chairperson, we'll come back to that in a moment, after the evidence is finished.
Very well. You say that you reconnoitred and that you reported back to Both and then you left the safehouse.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: Can you recall whether or not anything was said to the two victims regarding where you were going?
MR VAN DER WESTHUIZEN: They were informed that they were being shifted to a second safehouse.
MR VISSER: And Mr Botha referred to some place in Northern Natal, is that how you recall it?
MR VAN DER WESTHUIZEN: Yes, I think that is how I recall it.
MR VISSER: And you then drove in the direction of Northern Natal, so to speak.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And when you arrived at the turn-off which would lead to the Tugela River, what was the plan at that point?
MR VAN DER WESTHUIZEN: I brought the vehicle to a halt and said that I wanted to urinate, that I needed to urinate urgently.
MR VISSER: Why did you do this?
MR VAN DER WESTHUIZEN: So that the deceased would not be suspicious.
MR VISSER: So you didn't want to arouse any suspicions?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And after you had turned off from the road, where did you drive then?
MR VAN DER WESTHUIZEN: I drove in the direction of the Tugela River.
MR VISSER: Yes, and once you arrived there?
MR VAN DER WESTHUIZEN: When we were near the scene I stopped the vehicle and said that I wanted to urinate. I then visited the scene that I had reconnoitred previously, and ensured that it was safe, that there was nobody else there. After that I returned to the car.
MR VISSER: By the way before I forget, was Mr Ndaba and/or Mr Shabalala bound during this journey?
MR VAN DER WESTHUIZEN: I cannot recall that they were bound.
MR VISSER: Very well, Wasserman recalls that they were indeed bound. Can you recall whether or not they were blindfolded?
MR VAN DER WESTHUIZEN: Yes, they were blindfolded.
MR VISSER: Was this the position from the safehouse onwards?
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And there at the Tugela River they were still blindfolded.
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: Very well. You then went to go and see if this area was safe, you came back to the kombi.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR VISSER: What happened then?
MR VAN DER WESTHUIZEN: I stayed with the vehicle. Ndaba and Shabalala were taken by the other members out of the vehicle through the bush towards the scene. They were led to the scene. Mr Wasserman returned after a short period of time to fetch poles, hessian. He took a bag out of the back of the vehicle. I assisted him to carry the things into the bush. I then returned to the vehicle.
MR VISSER: Can you just explain to the Committee, what was the position, could you see, was it very dark, or what was the position?
MR VAN DER WESTHUIZEN: It was dark but not pitch dark.
MR VISSER: You could still see?
MR VAN DER WESTHUIZEN: Yes.
MR VISSER: When he helped him, assisted him in carrying the poles with Wasserman, did you then see the two victims?
MR VAN DER WESTHUIZEN: No, I did not go up to them. I cannot remember that I saw them.
MR VISSER: After you put the items down, what did you do then?
CHAIRPERSON: Did you help him carry the poles?
MR VAN DER WESTHUIZEN: Yes, Chairperson.
CHAIRPERSON: I thought you said he came to take a bag out of the vehicle.
MR VISSER: The Honourable Chairperson asked you - it is news to him that you spoke of poles, what did you mention concerning this? Were there poles in the back of the vehicle?
MR VAN DER WESTHUIZEN: Yes, they were concrete poles.
MR VISSER: It is described in the evidence as "watcrete".
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR VISSER: And was this part of what Mr Wasserman came to fetch?
MR VAN DER WESTHUIZEN: Yes, I can remember it in that way.
MR VISSER: And you then assisted him in carrying that and the bag and the hessian etcetera? ...(transcriber's interpretation)
MR VAN DER WESTHUIZEN: Yes, that is correct.
MR VISSER: After you did that you then said that you returned back to the vehicle.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And you waited there.
MR VAN DER WESTHUIZEN: That is correct.
MR VISSER: And you did all of this on the instructions of Mr Botha.
MR VAN DER WESTHUIZEN: That is correct, Mr Chairperson.
MR VISSER: Then on paragraph 1.18, if you can just continue there please.
MR VAN DER WESTHUIZEN
"The other members then returned without Ndaba and Shabalala and I then assumed that they were eliminated. Afterwards we returned to Verulam, where we made a fire, where we burnt the clothes and branches.
I also confirm the contents of paragraphs 80, 81 and 82."
MR VISSER: This is now concerning the destruction of the Toyota Corolla.
MR VAN DER WESTHUIZEN: Yes.
MR VISSER: If I can just stay there at 82, because there is a dispute concerning this paragraph. In 80 and 81, Botha referred to the fact that they took petrol from his vehicle in a jerry-can and then you took the Toyota Corolla on the Ndwendwe road.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR VISSER: As well as his vehicle?
MR VAN DER WESTHUIZEN: Yes, that is true.
MR VISSER: Did you then stop at a certain spot?
MR VAN DER WESTHUIZEN: That is correct, yes.
MR VISSER: At a later stage, did you go with the investigative team to try and identify that place?
MR VAN DER WESTHUIZEN: No, I wasn't present.
MR VISSER: There is a report in the document in front of the Committee, we will refer to it - or maybe I should just do it right now. You will find in Exhibit E, that at page 2 of Exhibit E there is a report, it's an internal memorandum, it's called, and at page 2 of that internal memorandum, paragraph 5 says
"Reports and photographs of a text by Wasserman, to point out site where he allegedly burnt Mabuso Shabalala's car."
... and it goes on to paragraph 9, Chairperson. I just thought that we might draw your attention to that.
CHAIRPERSON: Sorry, which is this again?
MR VISSER: This is Exhibit E, page 2. Not much turns on it, Chairperson, it just indicates that the Investigation Unit did investigate this matter, inter alia by going and looking for a car. Chairperson, I didn't want to interrupt the flow of the evidence, but perhaps I should also refer you to the fact that a Mr Calvey(?) made an affidavit, and that you will find - I'm sorry, there's also a report in Exhibit E at page 8, Chairperson. We'll come to that directly, but there was an affidavit by a Mr Calvey, if I remember correctly, in which he set out the position - I'm just trying to find it, in which he set out the position as to what pertained on the day when they went on the inspection. Chairperson, I find the reference here as Exhibit F, pages 13 to 14. No, no, I'm totally mistaken, I'm terribly sorry, this is an entirely different matter that Mr Calvey - I do apologise, Chairperson. But there is a statement of someone from the TRC, which is bound into the bundle. I will find it, Chairperson, and I will refer it to your attention in due course.
I may summarise the evidence very briefly, so that you know what to look for in this evidence, Chairperson. That is that in spite of three attempts, the car could not be found, the burnt our wreck of the Toyota could not be found. Yes, it's Singh, Chairperson, my attorney has just found it at page 9 of Exhibit E, page 9, the second paragraph.
MR LAX: That's just the report, Mr Visser, you've already referred to that.
MR VISSER: Well actually I haven't, I just referred to it - my attorney has just found it. Oh I have referred to it.
MR LAX: Yes, you spoke about page 8 of that same document.
MR VISSER: Thank you, Chairperson. Perhaps because we didn't work yesterday, today feels like Monday to me. In any event, Mr van der Westhuizen, you were not present at the search for the wreck of the car, is that correct?
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR VISSER: Can you just continue with paragraph 2 on page 4.
MR VAN DER WESTHUIZEN
"My attention was focused on the statements made by Tusi and Zungu, concerning the blue Toyota Corolla that would have been destroyed at the askaris' farm at Camperdown."
MR VISSER: Could you stop there for a moment.
Mr Chairman, the reference here, if you would pencil it in, is Exhibit F, pages 15 to 18 and Exhibit F, page 19 to 21. Those are two affidavits taken, I believe it was by Mr Homes, and I'm not quite sure about that, but these are two affidavits taken by these two deponents and they concern the chopping up of what they referred to - well, what one of them refers to as a blue Toyota car, if I remember correctly. The other one, that's at page 17, paragraph 8 and that would be Zungu -sorry, that would be Tusi. He refers to -
"A chopped up Toyota Corolla, light blue of colour."
CHAIRPERSON: And page 20, the same.
MR VISSER: Yes, and then that is Zungu, Chairperson, at page 20.
"Onderdele van 'n motor ..."
And he also says -
"... a light blue Toyota Corolla"
You referred to this in paragraph 2, and the content of that affidavit was that there was a blue Toyota Corolla that was chopped up at the farm where the askaris stayed at Camperdown. What is your comment concerning this?
MR VAN DER WESTHUIZEN: It was not that specific vehicle, no.
MR VISSER: Why do you say that?
MR VAN DER WESTHUIZEN: This vehicle of Mr Shabalala was burnt out at the Ndwendwe road.
MR VISSER: Were you personally there when it happened?
MR VAN DER WESTHUIZEN: Yes.
MR VISSER: How did you do this?
MR VAN DER WESTHUIZEN: We took petrol and poured it over the vehicle and set it alight.
MR VISSER: Did you immediately leave afterwards or did you stay there and wait?
MR VAN DER WESTHUIZEN: Yes, we stayed there for a while to see if the vehicle was alight.
MR VISSER: Did you see with your own eyes that the vehicle was burning?
MR VAN DER WESTHUIZEN: Yes, that is correct.
CHAIRPERSON: What road did you say?
MR VAN DER WESTHUIZEN: It was on the Ndwendwe road, Mr Chairman. N-d-w-e-n-d-w-e.
MR VISSER: You were asked by the Chairperson a while ago concerning the instructions from Col Botha, and that he instructions were unlawful and they were instructions to commit murder.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR VISSER: That is now from paragraph 3. Could you just address the Committee concerning the way in which you saw the situation.
MR VAN DER WESTHUIZEN
"In motivating my participation/association with this action, I must mention that I acted in my duties and service of the South African Police, and also on instructions that I received from senior officers.
These actions happened in a war situation, where the rules of normal warfare are not relevant. In the light of the pressure that was placed on the Security Branch ... was referred to by various political leaders of the time, and that is the extermination of terrorists. And I believed that this action was ...(end of side A of tape) ... expected of me, and that my actions fell within the context of the authorisation that was given to me. My action was directed or focused on the protection of the State and National Party. I was of the opinion that these actions were necessary to prevent embarrassment to the government and to help the National Party succeed in their negotiation process or position. I did not receive any financial gain from it."
MR VISSER: You then ask the Committee to consider your amnesty application and give you amnesty for this.
MR VAN DER WESTHUIZEN: That is correct.
CHAIRPERSON: What embarrassment to the government? You said this is necessary to prevent embarrassment to the government.
MR VAN DER WESTHUIZEN: If the actions were made public or became known, it would have been an embarrassment to the government.
CHAIRPERSON: What, that you had arrested two terrorist and obtained information from them about operation Vula?
MR VAN DER WESTHUIZEN: At that stage yes, that's what I thought.
MR LAX: But surely you would have got a medal for that?
CHAIRPERSON: But you had arrested dozens of terrorists over the last few days.
MR VAN DER WESTHUIZEN: That is correct, yes.
CHAIRPERSON: So why would these two people be an embarrassment to the government to disclose they had been arrested? Such an embarrassment that it justified their murder.
MR VAN DER WESTHUIZEN: I cannot explain why I felt that way at that stage, Mr Chairperson.
CHAIRPERSON: You're trying to tell us, to justify your behaviour you say you cannot explain now. You can't give any specific special reason why it should have been an embarrassment to the government to justify your conduct. Is that your position?
MR VAN DER WESTHUIZEN: Could you just repeat your question please, Mr Chairperson, I do not understand.
CHAIRPERSON: You cannot give us any explanation as to why there was embarrassment to the government, what sort of embarrassment there was to justify the murder, is that the position?
MR VAN DER WESTHUIZEN: That is correct, yes.
MR VISSER: Mr Chairman, I haven't quite finished yet, may I continue perhaps?
CHAIRPERSON: Yes.
MR VISSER: Mr van der Westhuizen, I do not think that you understand the reference of the Chairperson. During that time when you had Ndaba at the safehouse, in what state was he in, what was his emotional state? This is now Mr Ndaba.
MR VAN DER WESTHUIZEN: Mr Ndaba was - at the end he was very depressed and upset, he was a broken man.
MR VISSER: Did Mr Ndaba say anything that you heard or that somebody told you about, about what he was going to do?
MR VAN DER WESTHUIZEN: Yes, Mr Ndaba started acting irrationally, he said that he was going to go back to the ANC.
MR VISSER: And do what to them?
MR VAN DER WESTHUIZEN: Report back to them that he was an informer for the Security Branch and that he will take his chances with them.
MR VISSER: Were there any feelings that other informers will be influenced by this? Was this a serious consideration?
MR VAN DER WESTHUIZEN: Yes, it was serious, Chairperson.
MR LAX: Can I just interpose, Mr Visser.
What other informers were you concerned about? You've said there were other informers, which other informers?
MR VAN DER WESTHUIZEN: The informers that were involved in gathering of information in the same line or in the same area in which Mr Ndaba was involved in.
MR LAX: What informers would he know about? Give us one man, one other person, one other possible individual that he might know about.
MR VAN DER WESTHUIZEN: No, I can't do that, Chairperson, I cannot make known the names of the informers.
MR LAX: Well can you satisfy us that there was at least any other informer that he would know about? You see this man had been under cover for so long, no-one even - you hadn't had any contact with him for years.
MR VAN DER WESTHUIZEN: That is correct, I did not even know that he was an informer.
MR LAX: Well exactly, so how - if you didn't know he was an informer, how could you know who his contacts were and who he might even begin to tell the ANC about?
MR VAN DER WESTHUIZEN: I knew about other informers who also were connected in that area, in the regions and positions in which Ndaba was in.
CHAIRPERSON: But we have been told that Mr Ndaba came back illegally to the country at the beginning of 1990, he thereupon continued his own activities and he only communicated with Mr Botha, his erstwhile contact, in about May 1990, and spoke to him two or three times before he was arrested.
MR VAN DER WESTHUIZEN: I cannot talk for Mr Botha, ...(intervention)
MR LAX: You can take it for granted that what the Chairperson is telling you is what we have been told by Botha.
CHAIRPERSON: So there is no suggestion that Mr Ndaba had been working with Botha and his group with other informers, he in fact seemed to have refrained from making contact. So I would like you to explain how it could be thought that there were other informers that he would have named.
MR VAN DER WESTHUIZEN: As I said earlier on, Mr Botha dealt with Ndaba, I never did any debriefings with him myself ...(intervention)
MR LAX: The fact of the matter is that you don't really know, Mr van der Westhuizen, isn't that? You don't know, you don't know who he dealt with, you don't know who his contacts might have been, you're just speculating on what you think might have happened, but in fact you have no factual basis to base it upon.
MR VAN DER WESTHUIZEN: The problem was discussed with us and it was brought up by Mr Botha, he then suggested that there exists a possibility that other informants can be identified if Ndaba was released.
MR LAX: Precisely. That's exactly what I'm putting to you and suggesting to you. You simply relied on Botha's order and you have no personal knowledge of these things you're purporting to tell us.
MR VAN DER WESTHUIZEN: That's what I've been trying to say, Sir.
MR LAX: Thank you.
CHAIRPERSON: Did you know that Mr Botha had also taken great care to prevent any of his senior officers knowing that Ndaba or Shabalala were being held by you?
MR VAN DER WESTHUIZEN: No, I did not, Sir. No, I did not know that, Sir.
CHAIRPERSON: Because that is a most unusual procedure, isn't it, Botha's behaviour in this regard?
MR VAN DER WESTHUIZEN: If he kept it a secret he would have told Gen Steyn at that stage, Sir. I'm sure he would have told him, I don't ...(intervention)
CHAIRPERSON: He told him that they had information that he then went on to cover up completely. There was a special section under ...(intervention)
MR VISSER: Zen de Beer, Chairperson.
CHAIRPERSON: ... De Beer set up, and he didn't tell them "look I've got two possible informants for you".
MR VAN DER WESTHUIZEN: No, I don't know that he did or did not inform him, Sir.
CHAIRPERSON: You did not know what was going on.
MR VAN DER WESTHUIZEN: No, Sir.
CHAIRPERSON: Is that the position?
MR VAN DER WESTHUIZEN: Well in regard - with his communication to Mr de Beer, I don't Sir.
MR LAX: Were you interviewed by de Beer's unit?
MR VAN DER WESTHUIZEN: Not at all, Sir.
MR LAX: And yet you were a person who had information that could have helped them.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: Carry on.
MR VISSER: Chairperson yes, with great respect, I just want to rectify one aspect and that is the evidence of Botha in regard to the informers. You will find in his paragraph 59, Chairperson, of Exhibit D, and what he told you is that during the time that Ndaba was in Swaziland and in Zambia, there was a communication link through another informer.
CHAIRPERSON: Another, not to Ndaba. He did not say he had any communications with Ndaba, after Ndaba left the country.
MR VISSER: Chairperson, the fact is that he says that this communication network that Botha had, was not only used by Ndaba, but also by other informers. Then he says Chairperson, that he said that it was his fear that if Ndaba went to play open cards with the ANC, he may give them this information which would endanger the other informers. Now what van der Westhuizen simply says ...(intervention)
CHAIRPERSON: And we know that Ndaba went to the ANC in 1988, to Lusaka, he worked with them.
MR VISSER: Yes, yes.
CHAIRPERSON: He came back as their agent and was in this country for months before he contacted Botha. Can we seriously believe that Botha thought he kept everything secret from the ANC?
MR VISSER: Well Chairperson, that's obviously a question of speculation.
MR LAX: But the other thing Mr Visser, if I could just add and then you can address that at the same time, is it was clear from Botha's evidence that he's had no information through any source that originated from Ndaba, during the period 1988 till 1990.
MR VISSER: That is correct, that is correct.
MR LAX: In other words, Ndaba had made no contact whatsoever.
MR VISSER: Chairperson yes, but I will advance the submission to you in argument that that doesn't take away the knowledge that he would have if he didn't use it. It may give an indication that he didn't have it in the first place, that is one permutation.
MR LAX: What it does say is that whatever information he may have had, he certainly wasn't an active agent during that time.
MR VISSER: Absolutely.
MR LAX: And then you can draw a number - there are a number of speculations which you don't want to enter into, as to what that implies.
MR VISSER: I fully agree with Commissioner Lax, absolutely. The only point of what I'm addressing you on right now is that Botha said that is what exercised his ...(indistinct) and this man, the witness, says "I was told by Botha, and that brought me under the impression that this is what was expected of me, to save the government embarrassment", Chairperson. That's his evidence.
MR LAX: You see the only thing we're really clearing up here is that initially he gave the impression that he knew about these things and frankly he couldn't possibly have known about them, and it's clear now that he doesn't know that.
MR VISSER: If you look at his evidence in his affidavit, he's quite clear about what he was informed and this is part of what he was informed.
MR LAX: That's fine.
MR VISSER: We can take it no further than that, Chairperson. That's the evidence which we wish to present by Mr van der Westhuizen. Thank you, Chairperson.
CHAIRPERSON: Are you finished?
MR VISSER: Yes, thank you, Chairperson.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Carry on, Mr Wills.
CROSS-EXAMINATION BY MR WILLS: Thank you, Mr Chairperson.
Mr van der Westhuizen, you refer in your evidence and your affidavit to how you felt that it was assisting the government to exterminate terrorists, how did you fell about exterminating one of your own, an informer? And I refer specifically to your knowledge at that stage that Mr Ndaba was an informer. You knew that prior to his death.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR WILLS: Well, what was the position, do you think it was justified to just kill one of your own men?
MR VAN DER WESTHUIZEN: At that stage I thought so yes, Chairperson.
MR WILLS: Why?
MR VAN DER WESTHUIZEN: Because of the position we were in, the position in which we were during negotiations with Mr Botha. It was the only option that we foresaw.
MR WILLS: What position is this that you're referring to?
MR VAN DER WESTHUIZEN: The fact that - I think I have already referred to it, Mr Chairperson. Can I just go back to my statement please.
MR WILLS: Certainly.
MR VAN DER WESTHUIZEN: The fact that, and I think Mr Visser just discussed this, that he had knowledge or had possibly had knowledge, and it's not the information that I had, that he had knowledge of other networks that were set up and that were used by other informers. He could have made that known to the ANC, exposed it and then put the networks and the other informers in danger.
MR WILLS: You questioned Mr Ndaba during the time he was at the safehouse in Verulam, is that not so?
MR VAN DER WESTHUIZEN: No, I wasn't directly - I spoke to him, I never questioned him or debriefed him.
MR WILLS: Well you had discussions with him, and it's clear from your evidence that you were more-or-less, I assume that you were at the safehouse from the evening of the 7th more-or-less continually, until they were eliminated.
MR VAN DER WESTHUIZEN: That is correct, Sir, on and off. And I did have discussions with them.
MR WILLS: And from the evidence of Col Botha, it appears that the deterioration of Ndaba's state of mind, basically only occurred late and that was in fact on the 13th, when he returned from Pretoria and said that there were going to be no prosecutions. You told Ndaba that there were going to be no prosecutions.
MR VAN DER WESTHUIZEN: I know that - with respect, I know that he was worried prior to that.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR WILLS: But from your knowledge, from your experience of seeing him all the time, how was he on the Thursday, the 12th?
MR VAN DER WESTHUIZEN: It is very difficult, I cannot refer to specific dates because I cannot really recall. You said now before he heard of the prosecutions that are not going to take place? Mr Ndaba was not very happy, after Mr Botha came back to him and told him that there will be no prosecutions, he became very depressed.
MR WILLS: Yes, and we know that that must have been sometime in the afternoon of the 13th.
MR VAN DER WESTHUIZEN: That is correct, Mr Chairperson.
MR WILLS: Now what about when he was informed, Botha informed him of the arrest of the other people on the 12th? What was his state of mind at that stage?
MR VAN DER WESTHUIZEN: I cannot remember. He was very worried, very nervous. I cannot specifically say at what time, what stage he became irrational, he just deteriorated during this period of time.
ADV BOSMAN: May I just butt in here, just to get some clarity for myself.
Mr van der Westhuizen, you said that you never questioned Ndaba, what was the basis on which you had contact with him? Did you guard him or did you have to go with Mr Botha when he interrogate him? I do not quite understand.
MR VAN DER WESTHUIZEN: Basically I guarded him.
ADV BOSMAN: And if you say that you were the guard, were you in his presence?
MR VAN DER WESTHUIZEN: No, not the whole time.
ADV BOSMAN: Could you just elaborate on this. Did you guard him, did you stand outside the door?
MR VAN DER WESTHUIZEN: There are rooms, it is a house, a person can go in and out, you eat and sleep, then I leave and then somebody else is present. It was not my duty specifically to guard him. From time to time I was in his presence and if you are there, part of your duty will be then to guard him.
ADV BOSMAN: How often did you have contact with him?
MR VAN DER WESTHUIZEN: I had a lot of contact with him.
ADV BOSMAN: Thank you.
MR LAX: Sorry Mr Wills, just a follow up if I may interpose.
Mr van der Westhuizen, you say that - you see you're just being quite vague here and I'm just a bit puzzled. You start of by saying you were there most of the time.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR LAX: Say as part of your - in reply to the question by my colleague, you say "well I didn't have any specific tasks with regard to him", what were your other tasks then if you didn't have specific tasks with regard to him? What were you doing there, were you having a party?
MR VAN DER WESTHUIZEN: No.
MR LAX: Either you were given tasks or you were just relaxing there.
MR VAN DER WESTHUIZEN: If we are at the house we did not relax, you are there for a reason and not to relax. If you are there, part of your duties is to guard the person that is there.
MR LAX: Well you see there were two people there in that house.
MR VAN DER WESTHUIZEN: That's correct, Chairperson.
MR LAX: Did you not organise yourselves and say "okay, we're going to be here for eight hours, I'll take the first four, you take the next four" and so on, "this is when we need food, let's organise, someone must go and get food at a certain time"?
MR VAN DER WESTHUIZEN: Yes, that is how it happened. There was no rigid timetable "you work eight hours, eight hours off".
MR LAX: Yes.
MR VAN DER WESTHUIZEN: Like you said, if we had to eat we would then decided "I will go and buy food" and the other person that was present will then guard or do other duties.
MR LAX: Were they bound when they were being held there, were they handcuffed or did they have leg-irons?
MR VAN DER WESTHUIZEN: I can remember that from to time they were cuffed, yes, but not all the time.
MR LAX: Why would you have unbound them?
MR VAN DER WESTHUIZEN: If you were there personally and you know that you are going to be in his presence and you've got no other duties, I would have un-cuffed him, taken the cuffs off, because I am there.
MR LAX: And we just heard from you that most of the time you wouldn't have been with him because you would have been busy with other things and you would have only gone to him if you wanted to take him food or somebody wanted - if he called and he wanted to go to the toilet. Those are the only times you really would have gone there.
MR VAN DER WESTHUIZEN: No, Chairperson.
MR LAX: Well then why would you have gone to him?
MR VAN DER WESTHUIZEN: I can't explain that, Sir, I can't ...(intervention)
MR LAX: You see you've told us you weren't questioning him at all, so there was no other reason for you to go to him.
MR VAN DER WESTHUIZEN: I did not question him, Sir.
MR LAX: You've told us that. Well then what reason did you have to go to him? You see the man's being held here, you're not questioning him, your job is simply to make sure that he doesn't escape, essentially.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR LAX: And the easiest way to do that is to handcuff him and keep him locked in the room, not so?
MR VAN DER WESTHUIZEN: I did have discussions with them, I talked to them. I did not interrogate them, we had discussions.
MR LAX: What did you go and talk to them about?
MR VAN DER WESTHUIZEN: I can't recall, Sir.
MR LAX: Where you just talking about the weather?
MR VAN DER WESTHUIZEN: No, I can't say that, Sir.
MR LAX: Were you just talking about life in general?
MR VAN DER WESTHUIZEN: No, discussions, not - I suppose ...(intervention)
MR LAX: Yes, but with what object in mind, Mr van der Westhuizen? You see that's what I don't understand. Why would you go and talk to a man who is your prisoner ...(intervention)
MR VAN DER WESTHUIZEN: I'd say I wasn't ...
MR LAX: Just let me finish, so you understand the question.
MR VAN DER WESTHUIZEN: I'm sorry.
MR LAX: Why would you go and talk to a man who is your prisoner without any specific purpose? Were you trying to make his life a bit easier, were you looking for conversation?
MR VAN DER WESTHUIZEN: I can say I might have ...(intervention)
MR LAX: Were you bored?
MR VAN DER WESTHUIZEN: I might have - I had discussions - we had discussions concerning their operations, not in a sense that I was questioning him, I was not tasked for that matter, to question him.
MR LAX: Well just because you weren't tasked doesn't mean you didn't question him and you didn't try and get information out of him. Why would you talk to him about his operations unless you were trying to get information out of him?
MR VAN DER WESTHUIZEN: It was my interest, Sir, it was my job.
MR LAX: So in fact you did question him and you did discuss his operations with him?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: Well why did you tell us categorically earlier that you didn't question him at all?
MR VAN DER WESTHUIZEN: I wasn't tasked to question him, Sir.
MR LAX: Yes, no-one asked you whether you were tasked to question him, you told us you didn't question the man at all. You didn't say "I wasn't tasked to question him".
MR VAN DER WESTHUIZEN: I don't know how to say this, Sir.
MR LAX: Speak Afrikaans, it's fine Mr van der Westhuizen.
MR VAN DER WESTHUIZEN: I did not interrogate or question him in that sense, it was discussions about operations, about specific operations. Then there were general discussions about other ...
MR LAX: Yes? What other subjects?
MR VAN DER WESTHUIZEN: I can't recall, Sir.
MR LAX: And did you speak to Shabalala at all?
MR VAN DER WESTHUIZEN: I think I did yes, Sir. He was not very communicative, Sir.
MR LAX: Ja. I'll leave that for now, I'm interrupting Mr Wills' questioning. Please carry on, Mr Wills.
CHAIRPERSON: Well I'm going to interrupt him now too.
As I understand it, these were thought to be two very dangerous men, is that correct?
MR VAN DER WESTHUIZEN: That is correct, yes.
CHAIRPERSON: Well surely there were clear arrangements made about who was to be responsible for their security while they were being held illegally in this safehouse.
MR VAN DER WESTHUIZEN: Like I said earlier Sir, there wasn't a rigid time-table as to who will take which shift, there would be somebody present at all times though, Sir.
CHAIRPERSON: Somebody must have been responsible for arranging, ensuring that someone was present at all times.
MR VAN DER WESTHUIZEN: I should think so, yes, Sir.
CHAIRPERSON: Who would that have been?
MR VAN DER WESTHUIZEN: The senior person at the time, Sir.
CHAIRPERSON: Carry on, Mr Wills.
MR WILLS: Thank you.
Your version and that of your co-applicants has been that Ndaba was an informer and your evidence in your affidavit has been to the effect that he cooperated and spoke freely about his activities, there was no pressure, he wasn't a prisoner in the true sense of the word.
MR VAN DER WESTHUIZEN: No, he wasn't, Sir.
MR WILLS: Why was it necessary to cuff him?
MR VAN DER WESTHUIZEN: To keep Mr Shabalala under the impression that he was a prisoner, Sir.
MR WILLS: Were they kept in the same room together?
MR VAN DER WESTHUIZEN: On and off. At times they were separate, at times they were together. I can't exactly recall when and where.
MR WILLS: Isn't it usual procedure when you arrest two suspects, to keep them apart?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: And did they sleep in the same room together?
MR VAN DER WESTHUIZEN: No, not that I recall, Sir.
MR WILLS: Weren't they kept - I would have thought they would have been kept in two separate rooms, locked in two separate rooms and the only times that they would have possibly come together is possibly at meal times.
MR VAN DER WESTHUIZEN: At meal times, yes Sir.
MR WILLS: And then obviously at meal times they would be guarded and there'd be no reason - surely they wouldn't have eaten with handcuffs.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: So they would both be un-cuffed at that time.
MR VAN DER WESTHUIZEN: Most probably, Sir.
MR WILLS: I'm asking you, was that the case? You were there, I wasn't.
MR VAN DER WESTHUIZEN: I was there. They would be un-cuffed to be able to eat, Sir, maybe one hand cuffed to a chair, I can't exactly recall that one.
MR WILLS: Yes. But why was it necessary to cuff Ndaba at other times?
MR VAN DER WESTHUIZEN: I think I've already said he wasn't cuffed at all times, Sir.
MR WILLS: Was he locked in his room?
MR VAN DER WESTHUIZEN: Yes, he was at times.
MR WILLS: Why was that necessary?
MR VAN DER WESTHUIZEN: To create the impression that Shabalala - with Mr Shabalala, that he was also detained.
MR WILLS: If Shabalala was locked in a room, how would he know that?
MR VAN DER WESTHUIZEN: If he was probably brought out to the toilet or he could see in the house.
MR WILLS: No, but I'm talking about - well it would seem to me that if what you say is true, and which we dispute, if he was an informer, if Ndaba was an informer, he would have been given a free reign of the house and only at times when he came into view of Shabalala ...(intervention)
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: ... would you have locked him away.
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: Is that what happened?
MR VAN DER WESTHUIZEN: Yes, he wasn't cuffed at all times.
MR WILLS: With respect, that isn't the position or I haven't got that idea from the way you've been giving your evidence.
MR VAN DER WESTHUIZEN: No, he would be cuffed, Sir, when there was a possibility that Mr Shabalala could view him.
MR WILLS: Only then?
MR VAN DER WESTHUIZEN: Yes.
MR WILLS: Now surely ...(intervention)
CHAIRPERSON: What you said was "from time to time they were cuffed". If you knew you were going to be there with him, then you would un-cuff him. The impression you created was that when they were left on their own they were cuffed. You now say that is wrong.
MR VAN DER WESTHUIZEN: Not Mr - ja. Not Mr Ndaba.
MR LAX: You see I was talking to you about Mr Ndaba and I asked you, and you were clear that he was locked in his room most of the time. That was the conspectus of your evidence. And not only was he locked in the room most of the time, but he was handcuffed, except when it was safe not to handcuff him. And those were times that you then explained.
MR VAN DER WESTHUIZEN: No, ...
MR LAX: So how is it that you've given us such a clear picture of a person being in custody, almost incarcerated, and yet now you say "well actually he had the run of the house, except when he might be seen by Shabalala"? They're two completely different versions.
MR VAN DER WESTHUIZEN: That is correct, Sir. I must have misunderstood you, but Mr Ndaba was in detention, only if there was the possibility that Mr Shabalala could see him he would be in "detention".
MR LAX: What I don't understand is this. If now what you now want to say to us is that "well this man was free basically, he could do what he liked", if he got this idea in his head that he was going to go to the ANC now and take his chances with them, he wouldn't tell you that, he'd simply leave and disappear on his own, and if he was a free man he could easily have done that.
MR VAN DER WESTHUIZEN: It is possible, yes Chairperson.
MR LAX: So the probability of him telling anybody that he was not going to go and take his chances with the ANC, would you do that if you were in his shoes?
MR VAN DER WESTHUIZEN: I cannot say, Chairperson, I have not yet been in his position, I don't know.
MR LAX: It's so utterly illogical that anybody in that situation would do such a thing. You must surely concede that.
MR VAN DER WESTHUIZEN: No, I cannot.
MR LAX: Carry on, Mr Wills.
MR WILLS: Thank you.
Even on your version, wouldn't it have been a sensible thing to do if you were concerned about hiding the fact that Ndaba was being treated differently to Shabalala, from Shabalala, wouldn't it have been a simple thing to do to just keep him in a different place?
MR VAN DER WESTHUIZEN: I don't think that there was any other available place at that stage.
CHAIRPERSON: Well there was another safehouse in Verulam, wasn't there? There was one in Camperdown ...
MR VAN DER WESTHUIZEN: That is correct.
CHAIRPERSON: And there was one in Camperdown.
MR VAN DER WESTHUIZEN: That is correct.
CHAIRPERSON: There were numerous police stations.
MR VAN DER WESTHUIZEN: Correct, Chairperson.
CHAIRPERSON: And you say there was nowhere else to have kept Ndaba at that time. Or to have kept Shabalala, who was not being questioned, was not cooperating.
MR VAN DER WESTHUIZEN: We found ourselves under certain circumstances at that stage and I cannot say why it wasn't done, I can only say that it wasn't done.
MR WILLS: Well - sorry, Mr Chairperson, may I continue. Thank you.
You see from Botha's evidence, he indicates that at the time that Shabalala was arrested at the meeting at the proximity ...(intervention)
MR VAN DER WESTHUIZEN: Greyville racecourse.
MR WILLS: ... of Greyville racecourse, there was no pretence given to indicate that Ndaba was also being arrested. His evidence is completely different to yours in that regard.
MR VAN DER WESTHUIZEN: That is correct, Chairperson.
MR WILLS: Now he also - and I questioned him quite extensively on this, he also indicated that at no stage did he have a plan in order to ensure that if the emergency signal was given by Ndaba, the touching of the head, what you would do in those circumstances with regard to pretending to arrest Ndaba. Would you agree with that?
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: So at no stage did Botha say to you "if the emergency signal is given, we go in but we make the plan to be such that we look like we are arresting both of them"?
MR VAN DER WESTHUIZEN: I cannot recall that he said that, but I was under the assumption that it would take place as such, that we had to pretend that both of them had to be arrested.
MR WILLS: And where did you get this assumption from?
MR VAN DER WESTHUIZEN: It was the regular general conduct that if an informer or a member was involved in the case, that he would also be arrested.
MR WILLS: Can you explain why Botha's evidence is so different to yours in this regard?
MR VAN DER WESTHUIZEN: No, I cannot explain it.
MR WILLS: But you agree he has a different view ...(indistinct) the evidence?
MR VAN DER WESTHUIZEN: That is correct.
CHAIRPERSON: Well I put it to you that there was no attempt - sorry, let me withdraw that. I put it to you that Ndaba in fact wasn't an informer and the way that you treated him indicated that he like Shabalala, had been picked up and he was treated in exactly the same way as Shabalala was, and in that sense the probabilities are that he wasn't an informer.
MR VAN DER WESTHUIZEN: No, that is not correct Chairperson.
MR WILLS: Well can you tell me any way he was treated differently?
MR VAN DER WESTHUIZEN: With the arrest he was arrested in the same way that Mr Shabalala was arrested, the only difference in the treatment that was given to him was when he was not in contact with Mr Shabalala.
MR WILLS: Didn't you think it a bit strange that you kill both of these people - I really, with respect ...(intervention)
CHAIRPERSON: Are you going on to a different aspect?
MR WILLS: Yes, thank you, Chairperson.
CHAIRPERSON: We'll take the adjournment now.
MR WILLS: Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION
CASPER VAN DER WESTHUIZEN: (s.u.o.)
CROSS-EXAMINATION BY MR WILLS: (Cont)
Thank you, Mr Chairperson.
Just to summarise your state of mind at the time Ndaba was killed, and in respect of Ndaba only. Was it your view that the only reason that the decision was taken to kill him was because of your fear that if he went back to the ANC and give them information about your security networks, that would compromise your intelligence gathering operations?
MR VAN DER WESTHUIZEN: Chairperson, the decision to eliminate Mr Ndaba was that of Mr Botha. I was given an instruction to assist. What I thought at that stage I can no longer recall. I acted under the instructions of Mr Botha.
MR WILLS: But you indicated earlier in your evidence, when I asked you what the position was, you gave the position as I've described, ie the fear that was - you obviously had discussions about this.
MR VAN DER WESTHUIZEN: That is correct, Chairperson, it had an influence. I cannot say what other influences there were.
MR WILLS: But you haven't given us any other influences that you became aware of by your discussions prior to the decision to kill him or prior to killing him.
MR VAN DER WESTHUIZEN: No, Chairperson, I didn't.
MR WILLS: So as far as you know that was the only reason.
MR VAN DER WESTHUIZEN: That is what I can say now, yes.
MR WILLS: Now turning briefly to the position of Shabalala, it seems that he wasn't questioned at all, except by members of the C20 unit, but he wasn't questioned by members of your unit, is that correct?
MR VAN DER WESTHUIZEN: That is what I can recall, yes.
MR WILLS: At no stage whilst you were at the safehouse in Verulam, did you see or were you aware of any interrogation sessions between any member of your unit and Shabalala?
MR VAN DER WESTHUIZEN: I cannot recall.
MR LAX: Can I just be clear there, if you'll allow me Mr Wills.
Are you saying you can't remember any such questions or are you just can't remember what the situation was? Just so we're clear what you're not remembering.
MR VAN DER WESTHUIZEN: I cannot recall specifically that he was interrogated, Chairperson.
MR LAX: Thanks.
MR WILLS: The evidence of Mr Botha in this regard is that there was no need to interrogate him because he had what he described as being the more person, ie he had the information that he needed from Ndaba.
MR VAN DER WESTHUIZEN: I can recall that Botha gave evidence to that effect, yes.
MR WILLS: Well if that was the case, surely Botha would have said to you "don't worry about questioning Shabalala". There would have been something to say to you ...(intervention)
MR VAN DER WESTHUIZEN: I cannot remember ...
MR WILLS: Sorry, let me just finish.
MR VAN DER WESTHUIZEN: Sorry, Sir.
MR WILLS: It seems that if that was Botha's decision, he would have made sure that the people around him, his juniors who were at the safehouse for the week, would not have attempted to question Shabalala in any way. Would you agree with that?
MR VAN DER WESTHUIZEN: That is possible, yes Sir. I can't recall though that he gave us instructions not to interrogate Mr Shabalala.
MR WILLS: But to your knowledge nobody in fact did question Shabalala.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: I mean what would be the normal position? I'm just trying to put it in context for my own benefit. Would the position be that a suspect was only interrogated when the senior person, ie Mr Botha, was around or did you have a free reign to question at any stage and to just filter information back to Botha?
MR VAN DER WESTHUIZEN: It happened like that in circumstances.
MR WILLS: Happened like which?
MR VAN DER WESTHUIZEN: That - I can't recall an order ever been given - I can recall that orders had been given not to question a specific suspect, but like you said at times we would have a free reign to question a suspect, a particular suspect from time to time and not that Mr Botha or whoever was in charge should be present at the time.
MR WILLS: Yes, and what was the case here? I mean did you have ...(intervention)
MR VAN DER WESTHUIZEN: He was not questioned, Sir.
MR WILLS: You've indicated that, but did you have, if you wanted, the free reign - your words, to question Shabalala if you wanted to do so?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: And it seems to me strange that he wasn't questioned.
MR VAN DER WESTHUIZEN: It might seem strange Sir, yes, but he wasn't questioned. I can't give a specific reason why he wasn't.
MR WILLS: Well here you have an insurgent who is involved in a very high profile operation, or should I say a very important operation, it seems to me that he would have been questioned.
MR VAN DER WESTHUIZEN: Yes Sir, like I said, I don't see the reason - I can't recall a reason why he was not. He just wasn't. And I can't recall that Botha ever gave an instruction that he shouldn't be. The only reason I could think of was it wasn't necessary at that stage because he had Ndaba, Ndaba was there and he was ...(intervention)
CHAIRPERSON: But you weren't questioning Ndaba, you told me.
MR VAN DER WESTHUIZEN: No, I was not.
MR LAX: Can I just interpose, Mr Wills?
This question of having a free reign, that would have applied to Ndaba as well.
MR VAN DER WESTHUIZEN: I shouldn't think so Sir, because he was under the command of Mr Botha.
MR LAX: Well you see your whole behaviour in relation to Ndaba, as you've testified, is directly in line with a free reign, you spoke to him when you wanted to, you questioned him about things when you wanted to and presumably you filtered whatever information you got out of him to Botha.
MR VAN DER WESTHUIZEN: I think I recall that I said we did not - he wasn't questioned specifically as being questioned, interrogated.
MR LAX: Yes, but you didn't need to.
MR VAN DER WESTHUIZEN: No, we didn't need to, Sir.
MR LAX: Yes on your version this was your informer, you didn't need to question him or interrogate him but you certainly spoke about his operations and what he was involved in. That's been your evidence this morning.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: And that is directly in line with having a free reign to question him. Question doesn't mean interrogate, question means ask question with a purpose of achieving information.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: And you understand it to mean that, as distinct from interrogation, which is a different process.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: So when we said to you earlier "did you question him", we didn't say "did you interrogate him", not so?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: And it seems to me that the way these intelligence networks operate is on the basis on the basis of a need-to-know, you would only give a particular operative the information that he needed to know to perform his function, not so?
MR VAN DER WESTHUIZEN: That is correct, yes.
MR WILLS: And if you had two different operatives, the possibilities or the probabilities are that they would also be informed on a need-to-know basis, but the information that they had would be slightly different because they were operating with a different task.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: So surely you would have spoken to Shabalala.
MR VAN DER WESTHUIZEN: I can't recall speaking to him, Sir.
MR WILLS: Oh. That's not my point, with respect, Sir.
MR VAN DER WESTHUIZEN: I hear what you're saying, Sir, but ...(intervention)
MR WILLS: What I'm asking is, I cannot understand why. And on the evidence of Mr Maharaj, which I concede that you didn't have at the time, but on the evidence of Mr Maharaj, Shabalala was the senior of the two but at least you knew at the time that this was an operative who was involved with a very serious plan, and with respect, I cannot believe that your members did not even bother to question him.
MR VAN DER WESTHUIZEN: Well I can answer for myself there, Sir, that I was not involved in any questioning of him.
MR WILLS: Now you were aware of these various times when ...(intervention)
CHAIRPERSON: Sorry, before you go on.
I take it you were always somewhat suspicious of your informers.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: So surely someone would have asked Shabalala why he was meeting Ndaba, what the two of them were going to discuss, what they were going to do?
MR VAN DER WESTHUIZEN: That is possible Sir, but I wasn't present if that occurred.
CHAIRPERSON: And as far as we've been told, nobody questioned Shabalala.
MR VAN DER WESTHUIZEN: Not that I know of, Sir.
CHAIRPERSON: This would appear to indicate that there was no questioning, there was no investigation into these two agents.
MR VAN DER WESTHUIZEN: I've stated Sir, that I was not permanently present there, it could have happened when I was not there, or while I was sleeping.
MR LAX: But you would have been told of any information that was appropriate that came out of such questioning.
MR VAN DER WESTHUIZEN: That is possible, yes.
MR LAX: Not "it's possible", it wouldn't just be possible ...(intervention)
MR VAN DER WESTHUIZEN: I can't recall, I can't ...(intervention)
MR LAX: But you see you as part of a group of security people present at this house, how could you possibly know what next to know about what they were saying if the information wasn't shared with you? Do you see my point?
MR VAN DER WESTHUIZEN: I do, Sir.
MR LAX: And it was your practice to share that kind of information, so you were all in the picture so that you all knew that if any new information came you could compare it with what was already available.
MR VAN DER WESTHUIZEN: That is correct, Sir, that would be the procedure.
MR LAX: Yes. So it's not conceivable that if it had come out, that you wouldn't have been told about it, otherwise you wouldn't have been able to do your job.
MR VAN DER WESTHUIZEN: I don't recall being told about it, Sir, of any questioning.
MR LAX: Yes. And it is significant information that if it had happened you would recall it.
MR VAN DER WESTHUIZEN: Yes Sir, if it were.
MR LAX: Yes.
MR WILLS: Sorry, just returning to Mr Botha's role briefly, did he spend most of his time at the safehouse?
MR VAN DER WESTHUIZEN: No, I wouldn't say so Sir, no, he was in and out.
MR WILLS: Did he ever sleep over at the safehouse?
MR VAN DER WESTHUIZEN: I don't recall, Sir.
MR WILLS: Now on his - he went to Pretoria on a couple of occasions with Gen Steyn, you were aware of that.
MR VAN DER WESTHUIZEN: That's correct, Sir.
MR WILLS: And then he told us that he went to Pretoria for the first time, I think it was the 10th of July, do you recall when he left on that occasion?
MR VAN DER WESTHUIZEN: I can't recall dates, Sir.
MR WILLS: Well he went twice in the week prior to the murder of the two family members.
MR VAN DER WESTHUIZEN: I think that's correct.
MR WILLS: And on the first occasion when he returned, he indicated that he was given a specific instruction by Gen van der Merwe, the then Commissioner of the South African Police, not to make any further arrests or any arrests should I say - not further arrests, any arrests prior to the week commencing the 16th of July.
MR VAN DER WESTHUIZEN: I don't recall him saying that it was an instruction, I think it was a suggestion.
MR WILLS: Well I will argue about the evidence on record, that's not what I'm asking you. What I'm wanting to know is, did he at any stage communicate with you and tell you not to arrest anybody else in connection with this matter?
MR VAN DER WESTHUIZEN: I can't recall that, Sir.
MR WILLS: Are you saying that didn't happen, because surely it would have happened. I mean surely you would have remembered, had it happened, because you were involved in the arrest of people on the 12th.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: So you would have thought well, this is going contrary to the order that I've got from my senior Colonel and you would have remembered that.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: So can we assume that at no stage was this order from Gen Botha communicated to you?
MR LAX: Sorry, it wasn't Gen Botha, it was van der Merwe.
MR WILLS: Sorry - Gen van der Merwe communicated to you, prior to the arrest on the 12th.
MR VAN DER WESTHUIZEN: I can't recall it being communicated to us, Sir.
MR WILLS: Now you in your experience as a policeman - sorry, I can't remember what your length of service was, but I would assume that you as a policeman would expect that if this order from a senior person had come not to make any further arrests by the 16th or the week commencing the 16th, that that should have been communicated to the people on the ground who possibly could be involved in further arrests.
MR VAN DER WESTHUIZEN: That's correct, Sir.
MR WILLS: When Mr Botha returned from Pretoria on the first occasion, after he had met Gen van der Merwe and others, Basie Smit, did he have a briefing with you to tell you what occurred in Pretoria? Did he have a discussion with you?
MR VAN DER WESTHUIZEN: I can't recall whether it was a personal briefing or as a group, or whether I came to hear about what was discussed there later on. I can't recall.
MR WILLS: So you can't recall any briefing at all?
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: So the possibilities are that it didn't happen?
MR VAN DER WESTHUIZEN: That is possible, Sir. We were in and out and we didn't get together as a group. I can't recall us getting together as a group, people were busy at the house somewhere else, doing observations, we weren't - I can't us getting together and having a briefing from feedback from Pretoria.
MR WILLS: How did you communicate with each other?
MR VAN DER WESTHUIZEN: By radio and telephone, Sir.
MR WILLS: So I would assume because of it being such a sensitive operation, it would have been pretty easy to communicate with somebody quite quickly?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: So if for example - I mean could you give us a time period, I would say that you were more-or-less in immediate contact with one another, if necessary.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: Now when Mr Botha returned on the second occasion from Pretoria, he gave evidence before the Committee that he had been informed that there would be national investigation team set up to investigate the whole operation Vula issue, and that this would be headed by, I think it was Col Zen de Beer. Were you ever informed of that?
MR VAN DER WESTHUIZEN: Yes, I don't think I was directly informed, but at one stage I went to CR Swart Square to our offices and I then got to know about that.
MR WILLS: And who did you get to know about that from at CR Swart Square?
MR VAN DER WESTHUIZEN: I think it was in the passages, Sir. There was a group of people there, a big group of people including Mr de Beer, and I think if I recall correctly somebody told us there, told me, that there is a national investigation team.
MR WILLS: So it obviously wasn't from Botha?
MR VAN DER WESTHUIZEN: No, I can't recall him telling me that directly, Sir.
MR WILLS: Now again, if this instruction had come from senior people in Pretoria, I would imagine that you would have expected your senior who was the intermediary between you and then, to inform you of this.
MR VAN DER WESTHUIZEN: Not necessarily Sir, I was a very, I was the most junior member on the unit.
MR WILLS: But surely, with respect Sir, you had information relating to this issue.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: That must have been possibly the only issue you were dealing with during that week, not so?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: So surely in those circumstances you would expect to be told about another investigation that's taking place in regard to the same incident.
MR VAN DER WESTHUIZEN: I should think so, yes.
MR WILLS: Yes. And surely, I would have expected that you would have been told who the senior person was and that you should cooperate with him fully.
MR VAN DER WESTHUIZEN: Yes, Sir, that's possible but I don't think they would have wanted to intervene me or want my cooperation because that would be done by the senior, more senior members on the unit.
MR WILLS: Well that's speculation.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: And what my question is, is that you would have been placed in a better position had you known that this national investigation team had been set up and that your lines of communication with that national investigation team had been clearly established, not so? It would have been useful at least for you to know that?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: And that didn't happen.
MR VAN DER WESTHUIZEN: No, it didn't. Myself, me as a person wouldn't communicate with them unless I wanted to request from them to interview me personally, Mr Botha or a more senior person would give feedback to them.
MR WILLS: We've heard evidence along the lines that the investigating team was looking for Ndaba and Shabalala, were you aware of that?
MR VAN DER WESTHUIZEN: I don't recall that, Sir.
MR WILLS: Do you recall any enquiries made to you concerning the whereabouts of these people?
MR VAN DER WESTHUIZEN: No, no enquiries were made to me, Sir.
MR WILLS: Do you know if any enquiries were made to Botha or to Gen Steyn?
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: Nothing of that nature came up in the discussion? The general discussions you had with these people.
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: You see, it's been the evidence of both Gen Botha - sorry, Gen Steyn and Col Botha that they actively concealed the whereabouts and the information, or the arrest of these people and their whereabouts, from their superiors and also from Zen de Beer's investigative team. You're aware of that evidence?
MR VAN DER WESTHUIZEN: I think I recall that yes, Sir.
MR WILLS: Now it seems to me that under those circumstances they would have told you because they knew that you also knew where those people were. They would have told you, "don't release this information under any circumstances, don't deal with Zen de Beer's team".
MR VAN DER WESTHUIZEN: Yes, Sir, that would be so but I can't recall them - I can't recall receiving that instruction.
MR WILLS: Did Col Botha ever inform you about discussions that he had had, or he had allegedly had with Ndaba prior to Ndaba's arrest? You will recall - just to put you in context, Botha's evidence was to the effect that four to six weeks before the arrest on the 7th of July, he had had three or four meetings with Ndaba. Now I know that you wouldn't have known about those at the time because you've said in evidence that the first time you came to know that Ndaba was an informer was on the day of his arrest, the 7th of July, at CR Swart Square, but subsequent to that did Botha ever inform you of the contents of those previous discussions?
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: Did Botha give you any information whatsoever other than just what he said, that this person was an informer, which made you realise that yes indeed this person was an informer?
MR VAN DER WESTHUIZEN: No, I can't recall that, Sir.
MR WILLS: Again turning to Shabalala, what in your view was the reason why he had to be eliminated?
MR VAN DER WESTHUIZEN: Sir, I did not take the decision to - I was not part of the decision-making.
MR WILLS: No I realise that.
MR VAN DER WESTHUIZEN: They were Col Botha's decisions, and I really cannot comment for him, Sir.
MR WILLS: I realise that.
MR VAN DER WESTHUIZEN: Well you've said in your affidavit that you confirm certain discussions and things.
MR VAN DER WESTHUIZEN: Yes Sir, which he ...(intervention)
MR WILLS: So please tell me about that, that's what I'm wanting. You've confirmed that under oath, with respect.
MR VAN DER WESTHUIZEN: Mr Botha relayed to us - can I just go through my ...?
MR WILLS: Certainly.
MR VAN DER WESTHUIZEN: The fact as - when I look at my statement again, it's because Shabalala knew about Ndaba and that Botha had already decided to eliminate Ndaba and Shabalala was illegally detained and therefore if he were then released he would make it known to the ANC or his Commanders, that Ndaba was in our - he was with us, he'd been with us, and there would be questions.
MR WILLS: So basically the main purpose was again to cover your tracks? Well not you personally, I'm talking about the group of you as security policemen, you'd covered your tracks in regard to not letting any seniors know and you were also covering your tracks by not letting anybody else know what you were doing. That was the motivation as far as your understood it.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: Mr Wills, may I just interpose there for a second?
Why would Shabalala care, if he knew Ndaba was an informer and an agent, what happened to him? He would regard him as an enemy, he wouldn't give two hoots what happened to his enemy in that situation, he would be quite pleased if the guy disappeared because it's one less threat to worry about.
MR VAN DER WESTHUIZEN: No, but he wouldn't know that Ndaba was an informer, Sir.
MR LAX: But you've just told us that he knew that Ndaba was an informer ...(intervention)
MR VAN DER WESTHUIZEN: No. No, I didn't say that Sir, I don't recall me saying that. The whole idea was not to let him know that he was.
MR LAX: No but at some point he became aware of that, that's been the evidence so far and you've said that earlier, not two minutes ago.
MR VAN DER WESTHUIZEN: That what Botha came to the conclusion ...(intervention)
MR LAX: Yes, so precisely, that's precisely what I'm asking you about and I'm saying and you've associated yourself with that reason.
MR VAN DER WESTHUIZEN: Yes.
MR LAX: My point is, why would Shabalala be too worried about what happened to an informer? You see the reason ...(intervention)
MR VAN DER WESTHUIZEN: I hear what you say, Sir, but he could still go and make it public that he'd been with us, where is he now, they want him, they want to know where he is.
MR LAX: Sir, do you think that even though he knew he was an informer he would still try and embarrass you?
MR VAN DER WESTHUIZEN: Yes, Sir.
ADV BOSMAN: Mr Wills, can I just come in here please.
Mr van der Westhuizen, as I have recalled Mr Botha's evidence, at an early stage he decided that Shabalala should be eliminated and not Ndaba.
MR VAN DER WESTHUIZEN: I cannot say when he decided who would be eliminated.
ADV BOSMAN: Well I can assure you that it was his evidence that at an early stage it was decided that Shabalala would be eliminated. When did you get the impression that Shabalala would be eliminated because Ndaba had to be eliminated?
MR VAN DER WESTHUIZEN: Could you please repeat the question, I lost my train of thought.
ADV BOSMAN: Mr Botha's evidence was that at an early stage, in fact he said that at the stage when Shabalala was seized in the car he said that the idea occurred to him that Shabalala should be eliminated.
MR VAN DER WESTHUIZEN: Yes, I can recall that he stated that in his affidavit.
ADV BOSMAN: And that it was only later when Ndaba began to become nervous that he started thinking that Ndaba should also be eliminated.
MR VAN DER WESTHUIZEN: That is what he said, yes.
ADV BOSMAN: And now you have told us that Shabalala had to be eliminated because it was decided to eliminate Ndaba. Did I understand you correctly?
MR VAN DER WESTHUIZEN: According to his affidavit it worked out like that ultimately. The idea that occurred to him originally with Shabalala's arrest, he tried to separate this from the necessity of eliminating him and after Ndaba became nervous it became a necessity. I cannot speak precisely on behalf of Mr Botha.
MR LAX: If I may just interpose for a second. If you look at paragraph 61 and 62 of Annexure D, it's quite clear from that paragraph that what Adv Bosman is putting to you is in fact what Botha says, that initially a decision to kill Shabalala was taken to protect Ndaba and it was when Ndaba then wanted to revert to the ranks of the ANC, that the decision was then taken to kill him.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: So there's no confusion in that respect, in what Adv Bosman has put to you.
MR VISSER: With respect, there is a great confusion Chairperson, you only have to look at page 799 where you find the evidence. The whole situation, the moment Botha - his evidence was, the moment he had decided that Ndaba cannot be allowed to be released, the whole situation changed. And that - he talked about a paradox, the paradox was that first he thought of eliminating Shabalala to protect Ndaba's position and now Ndaba was going to go to the ANC himself and then the whole position changed. Having decided that Ndaba had to be eliminated, he could for that reason not release Shabalala because he'd go to the ANC and say "this man was detained with me, I'm pretty sure that he's been eliminated". That was Botha's evidence, as it appears at 799. So it's pretty close, it's pretty close, but there's the change in the whole thinking of Botha the moment he decides Ndaba has to go.
MR LAX: Yes, the only difference is that this witness hasn't explained the change at all, he's explained it in a different way as it was reported to him. That's the difference.
MR VISSER: Yes, well I don't want to ...(indistinct - no microphone) .. his own evidence, I just want to be of assistance to you.
MR LAX: Yes, yes. No, no, we understand that paradox and the shift in it, it's just that the witness doesn't understand that and the way he's testified doesn't reflect that understanding.
ADV BOSMAN: But my question is actually, at which stage did you receive the impression that Ndaba was actually the target for elimination?
MR VAN DER WESTHUIZEN: Chairperson, I never received the impression, I was simply given an instruction to assist with the execution of the elimination.
ADV BOSMAN: I'm not going to take it much further, but you told us that it was your impression that Shabalala had to be killed because Ndaba was going to be killed. When did you receive this impression and on what grounds?
MR VAN DER WESTHUIZEN: I cannot say, Chairperson.
ADV BOSMAN: I won't take this any further. Please continue, Mr Wills.
MR WILLS: Just on that, you obviously as a policeman know that it's unlawful to kill somebody.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: You also know that you can't yourself follow an order which an unlawful order.
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: So why didn't you, on the basis of your understanding, why didn't you challenge this, what made you go ahead with it?
MR VAN DER WESTHUIZEN: I wasn't in a position to challenge, it was the madness of the situation at the time. I deemed it an instruction and I followed the instruction.
MR WILLS: So basically what you're telling the Committee is that you would have done anything lawful or unlawful at the time regardless, just on the mere fact that you were told by Botha to do it?
MR VAN DER WESTHUIZEN: That is correct, Mr Chairman.
CHAIRPERSON: So your intention, your motive, would always have been to obey Botha?
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: Not to achieve any political objective?
MR VAN DER WESTHUIZEN: It was in all in line with a political objective, Sir.
CHAIRPERSON: Of Botha's political objective.
MR VAN DER WESTHUIZEN: No, Sir.
CHAIRPERSON: You didn't analyse it, you didn't ask him what he was seeking to achieve, you just obeyed his orders.
MR VAN DER WESTHUIZEN: I think we were all in the same state of mind at that time, Sir, it was all a political, it was to a political end at the end of the day, Sir.
MR LAX: Well you see you can't have it both ways.
MR VAN DER WESTHUIZEN: I understand what you're saying.
MR LAX: Either you formed together with them, your own political objective based on certain facts, in which case then Mr Wills' question to you needs to be answered, and then you can't simply rely on the fact that "I was issued orders and I obeyed orders".
MR VAN DER WESTHUIZEN: No, ...
MR LAX: Or - just hear the question so that you understand what I'm putting to you. You see if you're relying on orders and you were simply a person who obeyed orders and you didn't form your own opinions and you didn't form your own analyses of what was going on, that's one thing, but if you did then this Committee needs to know what that was, and that's why you're being asked those questions and therefore the answer that you simply followed orders, isn't good enough. Do you see the problem?
MR VAN DER WESTHUIZEN: I understand what you're saying, Sir. I was in a frame of mind at that time that to question orders, I didn't deem it necessary to question orders because of the frame of mind I was in politically, because of that situation at the time.
MR WILLS: Sir, obviously the logical follow-through of that is that regardless of what Botha had told you to do, unlawful or political or not political, you simply would have done it.
MR VAN DER WESTHUIZEN: No, not if it didn't have any bearing on a political situation.
MR WILLS: Well what was the bearing on a political situation with regard to killing a person so another person could not be revealed, particularly when this person had not been revealed to your own superiors?
MR VAN DER WESTHUIZEN: Sir, I don't understand you question correctly.
MR WILLS: Well tell me what was the political bearing of the murder of Shabalala.
MR VAN DER WESTHUIZEN: It would be an embarrassment to us and the political, and the government of the time Sir, and the negotiations that were in process. The whole situation would have been influenced.
MR WILLS: You know, with respect ...(intervention)
CHAIRPERSON: Sorry, you could have avoided that by not killing him and then it wouldn't have been ...
MR VAN DER WESTHUIZEN: No, Sir, no, Sir.
CHAIRPERSON: If you had not killed him that embarrassment wouldn't have existed.
MR VAN DER WESTHUIZEN: No, he would have been released and still embarrassed us ...(intervention)
MR LAX: But surely the only embarrassment you would have is that you held two, in your terms, terrorists, for five days while you questioned them.
MR VAN DER WESTHUIZEN: Excuse me, Sir?
MR LAX: The only embarrassment would have been that you held these two, as you would have call them, terrorist, while you questioned them. That would have been the only embarrassment that this government would have to suffer.
MR VAN DER WESTHUIZEN: That was possible yes, Sir.
MR LAX: Well what else was there? What other embarrassment would the government suffer? That's what we're trying to understand. What else did you do that was unlawful to those people? You didn't torture them, you didn't assault them.
MR VAN DER WESTHUIZEN: That's correct, Sir.
MR LAX: What else was there to be embarrassed about?
MR VAN DER WESTHUIZEN: I don't know, Sir, I can't say.
MR LAX: So you killed them merely to hide the fact that you had abducted them and held them for five days? That's the only embarrassment you can think of.
MR VAN DER WESTHUIZEN: Like I said Sir, it was not my decision to eliminate them.
MR LAX: Ja. But I mean when you stop and think about it at this very moment in time, whether it was your decision or not, what other embarrassment can you as a human being think of?
MR VAN DER WESTHUIZEN: Apart from the embarrassment Sir, there was the structures that had been set up informer structures and ...(intervention)
MR LAX: But you've conceded you didn't know anything about that yourself.
MR VAN DER WESTHUIZEN: No, I didn't, Sir.
MR LAX: Yes. So you didn't know whether that was so or not.
MR VAN DER WESTHUIZEN: No, I didn't at the stage, Sir.
MR LAX: Yes. And in any event you were busy with negotiations with this enemy of yours.
MR VAN DER WESTHUIZEN: That is correct.
MR LAX: Well surely that had a bearing on the decision to kill your enemy while you were negotiating with them. Did that ever enter your mind?
MR VAN DER WESTHUIZEN: No, Sir. It was a time of madness, I didn't question Botha's instructions. I really can't answer it, I can't say for what other reasons.
MR LAX: Isn't it so that you were dead opposed to those negotiations anyway? You felt that was a sell-out.
MR VAN DER WESTHUIZEN: That's correct, yes Sir.
MR WILLS: Thank you.
Just returning to what you said earlier, you became aware of this national investigative unit, in the corridors of CR Swart Square.
MR VAN DER WESTHUIZEN: Yes, Sir, I visited there for some reason and then I was told by someone. I saw all these people from all over the country and then I came to know that there was a national investigative unit set up.
MR WILLS: For what purpose?
MR VAN DER WESTHUIZEN: I think it was - I was told to investigate Vula.
MR WILLS: Yes. Didn't it cross your mind that you knew something about Vula which might be useful to this team?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: And what did you do about that?
MR VAN DER WESTHUIZEN: I didn't report to them.
MR WILLS: Well did you report to Botha and say to Botha "look I've got information that might be of assistance to these people, can I go and help them"?
MR VAN DER WESTHUIZEN: No, that would be Botha's job, Sir.
MR WILLS: No but Botha - why didn't you go to Botha? We're talking about your application here, with respect, and you have to be responsible for your own conduct.
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: Now you've admitted to this Committee that you had information that might be useful for them. You've admitted to this Committee that you know that they are an investigation team, set up to investigate that very thing.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: Now what did you do about facilitating that investigation?
MR VAN DER WESTHUIZEN: I didn't assist in the investigation, Sir.
MR WILLS: Now why not?
MR VAN DER WESTHUIZEN: I didn't deem it necessary. It wouldn't come from me as a junior member of the unit.
CHAIRPERSON: But did you go to Botha and say "I've got this, I think we should go along and tell them"?
MR VAN DER WESTHUIZEN: Well Botha would have what I have Sir, and he would make the decision to go and tell them.
CHAIRPERSON: You did nothing, although you had information that might have assisted them. That's the question. You decided to do nothing to assist.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: The only reason that I can think, with the greatest respect, is that you too wanted to cover this up from those people, you too were part of this conspiracy between yourself and Botha to make sure that nobody knew about the information that you had.
MR VAN DER WESTHUIZEN: No, that's not correct, Sir.
MR WILLS: Well can you give me another logical reason?
MR VAN DER WESTHUIZEN: The only reason I can give is because it would be Botha or another senior member's duty or expected of them to report to the investigative unit.
MR WILLS: Well I don't want to belabour this point for too long, with respect, I just want to say that I would have thought it would have been your duty as a policeman to ensure that if you had information, that you make sure that that information was given to the people who needed that information, who were within the Police Services.
MR VAN DER WESTHUIZEN: That would usually go through the channels, not from me directly.
MR LAX: Can I just ask something, Mr Wills?
Did you - you had other information that had nothing to do with Ndaba and Shabalala, other information relating to the monitoring of the safehouses and the arrests of other people and so on.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: That was, for want of a better description, innocent information, not tainted information.
MR VAN DER WESTHUIZEN: That's correct, Sir.
MR LAX: Why didn't you offer that information? It wouldn't have implicated you in anything.
MR VAN DER WESTHUIZEN: Whatever information I had, my senior members would have and it would work through the channels, they would be responsible to relay that information to the unit, to the investigating unit, Sir.
MR LAX: But if I remember correctly you and Wasserman were involved in those observations.
MR VAN DER WESTHUIZEN: Yes, I was. Ja, that's correct.
MR LAX: And followed the vehicle and all that sort of thing.
MR VAN DER WESTHUIZEN: No, I wasn't involved in following the vehicle.
MR LAX: You weren't.
MR VAN DER WESTHUIZEN: No.
MR LAX: Were you just involved in the one safehouse?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: And when did you get a chance to report all of that to your seniors?
MR VAN DER WESTHUIZEN: I can't recall when I got the chance, but it was reported Sir.
CHAIRPERSON: Sorry, I haven't looked, were you involved in the search of the safehouse?
MR VAN DER WESTHUIZEN: Which safehouse, Sir?
CHAIRPERSON: Any of them.
MR VAN DER WESTHUIZEN: At the one - I made an arrest at one safehouse, but I can't recall having being present at the searching of it, Sir, or any ...(intervention)
MR LAX: But surely as an arresting officer you would have had to make a statement?
MR VAN DER WESTHUIZEN: That is correct, Sir. I can't remember having made a statement though. I think the whole thing was stopped before any statements were taken. The prosecutions were stopped, no prosecutions were to take place.
MR LAX: But Zen de Beer's unit spent months researching this matter and investigating this matter before that decision was taken.
MR VAN DER WESTHUIZEN: That is correct, Sir. I never made a statement. I can't recall making a statement, it's possible that I did.
MR LAX: Ja. Did Botha ever share with you the information that he had, that no arrests were ever going to be made in this matter.
MR VAN DER WESTHUIZEN: Do you mean prosecution?
MR LAX: No prosecutions. I beg your pardon.
MR VAN DER WESTHUIZEN: Yes he did, Sir, it was shortly after the arrests were made. A few days.
MR LAX: So that's why you didn't go and cooperate with those people, 'cause it was a waste of your time?
MR VAN DER WESTHUIZEN: That's possible, yes Sir.
MR LAX: Did that just slip your mind?
MR VAN DER WESTHUIZEN: No, it didn't Sir, no.
MR LAX: Well surely that's the most obvious reason why you would have had nothing to do with Zen de Beer's unit.
MR VAN DER WESTHUIZEN: I'm sure if someone approached me to make a statement I would have.
MR LAX: You see the other thing that Botha came back with was the information that no prosecutions would follow and that de Beer's unit was being set up and would investigate the matter. If he told you the one he must have told you the other.
MR VAN DER WESTHUIZEN: Yes, that is possible, yes Sir.
MR LAX: And therefore your hearing about it in the corridors at CR Swart Square, can't possibly be right.
MR VAN DER WESTHUIZEN: No, that's where I heard of it the first time, and I think I probably went back when I saw Botha again and then he confirmed it to me. The first time ...(intervention)
MR LAX: But Botha came back long before de Beer came down with his unit.
MR VAN DER WESTHUIZEN: I might not have seen him before ...(intervention)
MR LAX: He came straight from Pretoria.
MR VAN DER WESTHUIZEN: I can't explain why that happened that way.
MR LAX: No, thank you. Please continue, Mr Wills.
MR WILLS: I'm sorry to jump around a bit, but a thought's just come to mind. You indicated that your concern on releasing Shabalala was that if you released him and killed Ndaba, he would go and spill the beans that you had Ndaba, and that would be an embarrassment to you. Not so?
MR VAN DER WESTHUIZEN: That is correct, ja.
MR WILLS: Now I find that completely incompatible with your evidence that at no stage was there any attempt made to make Shabalala an informer. Surely that would have been the easy way out. You could have gone in to see him and say to him look if you become an informer you'd have two informers and your problem would be solved.
MR VAN DER WESTHUIZEN: That is possible, Sir, but I can't really remember trying to recruit him or anybody trying to recruit him.
MR WILLS: Well the evidence is quite definite in that regard, that at no stage was Shabalala questioned and further, at no stage was he ever, was any attempt ever made to make him an informer.
MR VAN DER WESTHUIZEN: That's correct, Sir.
MR WILLS: And you would know that if an attempt had been made to make him an informer and that attempt had failed. Obviously because of your position there.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: Now do you agree with me that if they'd both been informers and neither were going to rat on you, that you wouldn't have had to kill them?
MR VAN DER WESTHUIZEN: That is correct yes, Sir.
MR WILLS: So why didn't - I mean surely that's not a -why didn't you in your position at least say when you got the instruction, this unlawful instruction to kill Shabalala, why didn't you say at that stage "well let's try and make him and informer"?
MR VAN DER WESTHUIZEN: I can't give a reason for what I thought then, Sir.
MR WILLS: It doesn't appear that you thought much about the livelihood and the wellbeing of those two people. That's the impression I'm getting, that you actually didn't care about what happened to them. It didn't mind to you if they got killed.
MR VAN DER WESTHUIZEN: Of course it did, Sir.
MR WILLS: Well then why didn't you do anything about it? What did you do to try and protect them from this awful fate?
MR VAN DER WESTHUIZEN: I can't recall doing anything, Sir. I can't say why I didn't.
CHAIRPERSON: I think that when Mr Wills is talking about being an informer, he also includes the possibility of him becoming an askari or something of that nature. You didn't need to necessarily recruit him as an informer who would go back into the ANC ranks and give you information, you could have tried to just get him to turn over and come onto your side, tell you what he knew and help you in the future by pointing people out.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR WILLS: Thank you, that was indeed my meaning. Thank you, Mr Chairperson.
The other aspect that has concerned me and I hope would concern you, would be that you've got a relatively short period of time when Ndaba is distressed - it seems from your evidence that he was arrested on the 7th, you had no problems with him at all, then he was arrested, he went down and he cooperated with you in the arrest of Shabalala, you took him back, you treated him well, and the first time there was any hint of him being unhappy was when he got the news, that was sometime after the 12th when Siphiwe Nyanda had been arrested. That was the evidence of Botha, it was when his position started to deteriorate, and that must have been on the 12th.
MR VAN DER WESTHUIZEN: That's correct.
MR WILLS: Now he was killed some 48 or maybe 60 hours later, on the night between the 14th and the 15th, can you recall about what time it was in the evening?
MR VAN DER WESTHUIZEN: It was late in the evening, towards midnight, Sir.
MR WILLS: So some 60 hours later, less than three days, a decision is taken to kill him. Now I would have thought, particularly had you known that he was an informer, that some measures at least would have been taken to give him a bit of an opportunity to compose himself. In other words, why was there the need to rush this thing through?
MR VAN DER WESTHUIZEN: I can't answer why it was rushed, Sir, if you think of it - if I think in retrospect, then we could have given it a bit longer. But it didn't happen, it just didn't happen.
MR WILLS: But there was no pressure on you.
MR VAN DER WESTHUIZEN: I don't know what pressure there was.
MR WILLS: Well there might have been ...(intervention)
MR VAN DER WESTHUIZEN: It's just the way it happened, Sir.
MR WILLS: ... there might have been pressure to conceal it, maybe people were snooping around your safehouse, maybe de Beer's unit was getting closer to the fact that your unit had taken Ndaba. Because obviously that was known in CR Swart Square from the 7th, when he was arrested, because it wasn't your unit that arrested him, it was common knowledge that he'd been arrested by other people.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: So was it not so that people were starting to ask questions about Ndaba and Shabalala?
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: ... or Ndaba.
MR VAN DER WESTHUIZEN: Yes, that's possible, Sir.
MR WILLS: Look, I'm not satisfied with that answer, it doesn't help me. "it's possible". I'm not asking you if it's possible, I'm asking you what actually occurred.
MR VAN DER WESTHUIZEN: I can't remember questions being asked about him, Sir, I can't say.
MR WILLS: Well can you give ...(intervention)
CHAIRPERSON: Sorry, can I?
As I understand the evidence, and I can be confused here, it was Ndaba who supplied the information that led to the discovery of Vula.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: Which was one of the major breakthroughs the Security Branch had made.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: And certainly speaking for myself, I would never believe that one could get all the information that may possibly benefit one, from a man within 48 hours, one would want to keep him there as a future source of reference, wouldn't one?
MR VAN DER WESTHUIZEN: Yes, that is right, Sir.
CHAIRPERSON: And yet he is killed on the 16th.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: There must have been some very cogent reason why you no longer kept him resident in the safehouse, a possible source of further information. He'd had a mental breakdown, if you wish to call it that, but he could have been left in peace for a day or two, couldn't he?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: And what is more, if he did want to go to the ANC, as you say he did, you could have then arrested him and carried on interrogating him. You people had lots of ways of getting information out of people.
MR VAN DER WESTHUIZEN: It was possible yes, Sir.
MR WILLS: Again you didn't express any view or do anything to save Ndaba at this point, prior the order being given, you didn't question that order in any way.
MR VAN DER WESTHUIZEN: No, I did not.
MR WILLS: And you knew the order was unlawful.
MR VAN DER WESTHUIZEN: Yes, I did.
MR WILLS: Finally I just want to turn to the final trip that these two persons made in your kombi. I'll put it to you that I find it strange why you didn't just shoot and bury the people on the ground where you were at, ie the farm at Verulam, because you had buried other people there, or other people had been buried there, not so?
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: So why wasn't there this - there's this so-called elaborate plan to run quite a serious risk of going to place which was uncontr (corrupted file) (indistinct)
MR WILLS: Had you shot - when I say you, I'm not referring to you specifically, I don't have the knowledge of all the other applications, but I'm talking about you plural, in the sense of the Durban Security Branch Unit, under Gen Steyn. Prior to this I am led to believe that you had executed people and buried them at that farm in Verulam.
MR VAN DER WESTHUIZEN: I can't recall, Sir, I don't know whether it's ... There was the one farm, I don't know whether it was the same farm ...
MR WILLS: Okay.
CHAIRPERSON: My recollection is in the evidence we've heard so far, it was on the other farm in Verulam.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR VISSER: My attorney seems to recall that Mr Wills is correct that one person was buried on this particular farm. I don't have any knowledge of that particular incident, so I can't - well Pumezo Nxiweni, he was buried on this particular farm. So to that extent my learned friend is correct.
Well now I've got indications from the back that says we're wrong, so perhaps I should withdraw everything I said, Chairperson. But ...(intervention)
MR LAX: Previously - if I can assist, I asked the very same question much, much earlier in the previous hearing and I was told that that original, the killing of Nxiweni happened at Waterloo farm, which wasn't the same farm as this. Because I went to that exhumation and that is why I was asking those questions.
MR VISSER: But there's certainly nothing wrong with the question my learned friend is asking, so I'm not objecting to that at all.
MR WILLS: To me if you want to get rid of someone quickly, you could have shot them, put them in the grave in some ...(intervention)
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: And this is some big elaborate scheme where you'd have to drive for some, what I would estimate to be 120 kilometres in a vehicle, you carry all of this equipment with you, you have to put the informer or the detainees at additional risk. It just seems awfully odd.
MR VAN DER WESTHUIZEN: I can't answer why it happened that way, Sir. I really can't.
MR WILLS: As I understand the evidence, when you got to the Tugela road turnoff - now we're talking about the time prior to the new highway being up there, when the intersection was closer to Mandini ...
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: ... and there's a little garage immediately on the left.
MR VAN DER WESTHUIZEN: That is correct.
MR WILLS: Now you'd agree that it's approximately a 15 minute drive on a dirt road from that intersection to the Tugela mouth.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR WILLS: Now how far along that road did you drive?
MR VAN DER WESTHUIZEN: Probably about two-thirds of the way down we turned off again.
MR WILLS: So you were on that road for I would say, approximately, at least 10 minutes before you turned down to the river.
MR VAN DER WESTHUIZEN: Approximately yes, Sir.
MR WILLS: And then how long did it take you to get from the road to the river where the murder was committed?
MR VAN DER WESTHUIZEN: It was quite a bad road, Sir, it probably took another 20 minutes, 10 minutes, Sir.
MR WILLS: So 20 minutes in all?
MR VAN DER WESTHUIZEN: Yes.
MR WILLS: Now it seems to me that your evidence was that when you go to that interception you stopped, that is the intersection with the main road.
MR VAN DER WESTHUIZEN: Yes.
MR WILLS: You stopped and you gave the sign that you wanted to urinate.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: Now surely at least at that point in time the two detainees must have suspected something and made certain comments, because if you just wanted to urinate, that doesn't take a 20 minute trip off the main road.
MR VAN DER WESTHUIZEN: No, it doesn't, Sir.
MR WILLS: Were they sedated?
MR VAN DER WESTHUIZEN: No, they weren't.
MR WILLS: Did they not say anything?
MR VAN DER WESTHUIZEN: What happened there was I stopped there - the reason I stopped there was because there was a turnoff - to try and hide that I'm turning of the road. We then stopped again. After the 20 minutes we stopped again.
MR WILLS: You see - well I just want to know, did the applicants - sorry, did the detainees suspect or did you notice from their behaviour that they suspected that something terrible was going to happen to them?
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: They didn't make any comment whatsoever?
MR VAN DER WESTHUIZEN: Not that I can remember, no.
MR WILLS: Not even when you got them out the car and you hand-led them towards the bank of the river?
MR VAN DER WESTHUIZEN: No, I didn't hand-lead them Sir.
MR WILLS: Well not you personally, but ...(intervention)
MR VAN DER WESTHUIZEN: No, I didn't hear any comments from them.
MR WILLS: You remained at the car at that stage.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: And then when you went to take the hessian down or you assisted Wasserman with the poles, were they already dead when you did this?
MR VAN DER WESTHUIZEN: I don't Sir, I did not see them, I didn't go right to where they were.
MR WILLS: So you say that from the time you left Durban to the time they were actually executed, in your knowledge you heard them say nothing?
MR VAN DER WESTHUIZEN: I can't recall them saying anything in particular, Sir. They might have spoken, but I don't recall them saying anything.
MR WILLS: How did you feel during the course of that trip?
MR VAN DER WESTHUIZEN: Concerned, worried, I didn't feel well at all.
MR WILLS: About what, worried about what?
MR VAN DER WESTHUIZEN: About what we were doing, Sir, it was wrong.
MR WILLS: Well why did you continue with what you ...(intervention)
MR VISSER: Mr Chairman, but he's explained that over and over again, really, how many times does he have to answer the same question?
MR WILLS: Mr Chairman, I'm referring specifically to the trip. Prior to this my questioning had been related to when orders were given. If I may just be allowed to, or may the witness be allowed to answer the question.
CHAIRPERSON: Have you got anything different to say to the answer you've given before? Why were you doing it, why did you do it?
MR VAN DER WESTHUIZEN: I was in the state of mind, Sir, it was a time of madness. I can't answer, I can't say why I did it. We went through this just now, it was conditioning, it was a state I was in. At the time I deemed it necessary.
MR WILLS: Just to turn to the incident of the alleged burning of Shabalala's vehicle after the incident. You as a policeman would expect that if a vehicle was left burnt on the side of even a rural road, as the Ndwendwe road is, and I conceded that, that this information would come to the light of the local police station.
MR VAN DER WESTHUIZEN: That is correct, yes.
MR WILLS: And one would expect that the local police would investigate and make an entry in the SAP13 register or in the occurrence book, that somebody had come in and spoken about the vehicle.
MR VAN DER WESTHUIZEN: That is correct yes, Sir.
MR WILLS: And yet you're aware that on all investigations that have been made into that vehicle, nothing has been found.
MR VAN DER WESTHUIZEN: I believe so yes, Sir.
MR WILLS: And the TRC ...(intervention)
CHAIRPERSON: You say nothing has been found, do you mean nothing has been found at the local police station?
MR WILLS: My information is there's been no records whatsoever of that.
CHAIRPERSON: Because as I understand it, if somebody had found the vehicle, the burnt out vehicle, they would have reported it to the local police who would have gone to examine the vehicle to ascertain whether there were signs of some crime having been committed there, whether there were bodies there, things of that nature.
MR VAN DER WESTHUIZEN: That's is correct, Sir.
CHAIRPERSON: And they would have also taken down details of the vehicle's engine number and chassy number.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: Which would have been available. And presumably the licence plates. There's been no evidence to suggest they were removed.
MR VAN DER WESTHUIZEN: No, I can't recall.
CHAIRPERSON: So they would have identified the car, probably by the next day.
MR VAN DER WESTHUIZEN: It was possible, Sir.
CHAIRPERSON: And it would have been traced to where it was registered.
MR VAN DER WESTHUIZEN: That is possible, yes - yes, it would have, Sir.
CHAIRPERSON: So what was the purpose of taking a car and burning it on the side of the road like that, where it might have led to immediate inquiries?
MR VAN DER WESTHUIZEN: Again Sir, that's a decision that was taken at that time. I suppose it seemed the best idea at the time.
MR WILLS: Well at the time, we know that a chop shop was operating in I think Mountain View farm at Camperdown, which was in a sense closely related to your operations because it was in the domain of Col Andy Taylor.
MR VAN DER WESTHUIZEN: That is correct Sir, but I can't comment on the chop shop. At that time - I don't recall ever visiting that farm during this time, this time we're referring to at the moment, only later did I visit there.
MR WILLS: Yes. But didn't it occur to you that if you took the car to let's say Taylor's farm, even though you didn't know, you hadn't been there before and you sort of kept it under control and chopped it up, that it would be less likely to be found than if you just left in on the side of the road?
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR WILLS: Did that occur to you?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR WILLS: So why didn't you do that?
MR VAN DER WESTHUIZEN: It occurs to me now that it would be a better idea.
MR WILLS: And it didn't occur to you at the time?
MR VAN DER WESTHUIZEN: No, Sir.
MR WILLS: So you're saying that you can leave a vehicle burnt out on the side of the road and you make no effort whatsoever to conceal its identity and you think that your - it won't be traced to you?
MR VAN DER WESTHUIZEN: At the time it seemed that way, Sir. We did remove the licence disk and for that matter as I'm sure we did the number plates, but the engine number and that would remain there if possible for them to recover those. But at the time that was the plan, that's how it happened.
MR WILLS: There's no evidence that the licence plates were removed up until your evidence now. Can you actually remember removing the licence plates or are you ...(indistinct)
MR VAN DER WESTHUIZEN: No, I don't recall removing the number plates.
MR WILLS: Well finally, Sir, I want to put to you that I find your version and the version of your colleagues highly improbable and I will be arguing - and I give you an opportunity to comment on this argument, I'll be arguing that you have all been very dishonest in regard to these applications, you haven't come before the Committee and revealed exactly what happened. That the probabilities are rather that what occurred is that both Ndaba and Shabalala were severely interrogated by yourselves at that farm, that they were in such bad condition that you were too scared even to reveal them to this investigative unit, despite orders that you cooperate with that unit, and that you decided to kill them, not for any political motive whatsoever, but simply to cover your own deeds which had no bearing on politics whatsoever. You're free to comment.
MR VAN DER WESTHUIZEN: The version according to my statement is the truth and the only truth, Sir.
CHAIRPERSON: Mr Wills, I don't want you to deal with it now, but if the brutal interrogation is to obtain information and assist them in obtaining information which they consider vital to the Security Branch operations, does that alter the position? Would that - it doesn't alter the position in the light that they have adopted an entirely untruthful approach and have not made a full disclosure, but that it could - the point I'm really making is that a brutal assault in connection with an interrogation could in certain circumstances be part of a political, an act committed with a political objective.
MR WILLS: Yes, I concede that, but that isn't the case of their evidence.
CHAIRPERSON: That is not the case made out here, no.
MR WILLS: Thank you, Mr Chairperson. That concludes my cross-examination of this witness.
NO FURTHER QUESTIONS BY MR WILLS
CHAIRPERSON: Any questions.
MS THABETHE: No, Mr Chair.
NO QUESTIONS BY MS THABETHE
RE-EXAMINATION BY MR VISSER: Just one question, Chairperson.
Mr van der Westhuizen, I would like to know, you agreed with a statement made by Mr Wills that you possessed information which would have been of value for Mr Zen de Beer's investigating team. Your response was yes. Can you tell us what information you had that would have been that valuable to him? Did you possess any such information, vital information as such?
MR VAN DER WESTHUIZEN: No, Chairperson.
MR VISSER: Thank you, Chair.
NO FURTHER QUESTIONS BY MR VISSER
MR LAX: Sorry, just to follow up on Mr Visser's question. The fact is you did have very useful information, you knew where Shabalala and Ndaba were. You knew the whole fact surrounding their arrest, the interrogation. You knew who had been arrested as a result of that information supplied, you could have given all of that to Zen de Beer.
MR VAN DER WESTHUIZEN: They would have known about all the arrest then Sir, apart from Shabalala and Ndaba.
MR LAX: Yes, but you had that information.
MR VAN DER WESTHUIZEN: The other arrests, Sir.
MR LAX: But Shabalala and Ndaba, you had that information, you could have given it to them. Now you've just said you didn't have it.
MR VAN DER WESTHUIZEN: Like I said in my evidence, it would not have to come from me. I'm sure if you follow channels it would be someone else's, my senior, my Commander's duty to inform them. It's not for me ...(intervention)
MR LAX: Yes, but the fact of the matter is that you did have that information. You've just answered Mr Visser and said
"No, I didn't have any information."
You did have information that was vital to their enquiry. But you had - the answer is, you did have the information but you didn't want to give it to them.
MR VAN DER WESTHUIZEN: That would be a better answer, yes.
MR LAX: Yes.
MR VAN DER WESTHUIZEN: I wasn't in a position to give it to them, Sir.
MR LAX: I was interested in something you said with regard to Gen van der Merwe and the instruction from van der Merwe to Botha, which was that no arrests were to be made. And your first answer to that was
"That wasn't an instruction, that was a proposal."
"'n voorstel", that was the word you used. And then subsequent to that you then changed your evidence a little bit and said no, you weren't aware of that. Why did you say that wasn't an order, that was "'n voorstel"?
MR VAN DER WESTHUIZEN: Mr Botha said that the General made a proposal and in his statement he also mentioned that it was proposed that no further arrests should take place.
MR LAX: But you were correcting Mr Wills in his question to you.
MR VAN DER WESTHUIZEN: Yes Sir, that was read from Mr Botha's statement, Sir.
MR LAX: Okay, so you had no knowledge of it at the time, is that what you're saying?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: And then just with regard to the trip to the place, you actually were sent to find that place because you were a fisherman and you knew about such places.
MR VAN DER WESTHUIZEN: Yes, Botha came, or someone came with - Botha came with the suggestion of a river mouth, that's why I went. He asked me to go there to find a suitable place and I went straight there.
MR LAX: And you went and checked out this place. Had you been fishing there before?
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: And you then came back and said "ja, I know exactly the right place".
MR VAN DER WESTHUIZEN: Yes, Sir,
MR LAX: Now you're now travelling on the road towards this place that night, and you said to us that in order to not alert these people you hid your intentions by saying you were turning off to go and relieve yourself.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: But then you proceed to drive for another twenty minutes.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: How could they not have suspected something? Because you didn't stop until 20 minutes later.
MR VAN DER WESTHUIZEN: No, we did stop at the first turn-off. As we turned off the tar onto the gravel I did stop there for a while and then the next stop at the final destination, Sir.
MR LAX: But you said earlier that you only stopped to turn.
MR VAN DER WESTHUIZEN: That was to disclose the matter that we're turning, the point that we're turning. That's the way it happened, Sir, I don't know ...(intervention)
MR LAX: Yes, but you didn't say you stopped the vehicle and got out of the vehicle and pretended then to urinate and then back in again, you said you simply turned off and then drove along the road. You see your colleagues, your colleagues all say that when you got to this place where you finally stopped the vehicle at the end, near the river, it was at that point you asked them to get out of the vehicle because everybody was supposed to urinate at that point.
MR VAN DER WESTHUIZEN: That is right, Sir.
MR LAX: So then your earlier answer about stopping the vehicle to urinate doesn't make sense, because the point at which you were to urinate was actually some 20 minutes hence.
MR VAN DER WESTHUIZEN: But I do recall stopping where we turned the first, when I first made the suggestion.
MR LAX: Yes, but it wasn't to give them the impression that you were going to urinate, because that was part of the plan at which you would finally bring the vehicle to a halt.
MR VAN DER WESTHUIZEN: It was for everybody to urinate.
MR LAX: So they wouldn't suspect why they were being taken out of the vehicle.
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: And if you wanted to give them the impression that you were still driving along the main road and not turning off it, that impression would surely fail the minute you hit the dirt road and the bumps and all the gravel and then ...(intervention)
MR VAN DER WESTHUIZEN: That is correct, Sir.
MR LAX: ... the worst part of it was when you then turned off the gravel road - and as you said it took you another 10 minutes on a terrible road or a track or whatever you call it. So that subterfuge would have been meaningless by that point.
MR VAN DER WESTHUIZEN: Well Sir, the fact that we turned off onto a gravel road wouldn't have had an influence because the previous place that they were held on was also a gravel road ...(intervention)
MR LAX: Well then why were you needing to hide the fact that you were turning off?
MR VAN DER WESTHUIZEN: I don't know, Sir, that's the way it happened, it was my thinking at the time.
CHAIRPERSON: Sorry, I'm again - weren't they told to all get out and urinate because you still had a long way to go?
MR LAX: Precisely.
MR VAN DER WESTHUIZEN: That was at the end, Sir.
CHAIRPERSON: Yes. Not that you were on a dirt road leading up to a farm because the previous farm had been on a dirt road, they were told you had a long way to go os they must all get out and urinate.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: You see this is my worry, this is why what you say simply doesn't make sense to me. The subterfuge you're trying to imply is a meaningless one because nobody would believe it, and if you look at it now, you yourself can see that it was ...(intervention)
MR VAN DER WESTHUIZEN: It was useless, it was - yes, I don't know why - ja.
MR LAX: And then just the last thing from me. You're very clear in your mind that they weren't bound?
MR VAN DER WESTHUIZEN: I can't remember, Sir. While in transit?
MR LAX: Yes.
MR VAN DER WESTHUIZEN: No, I can't recall them being bound or not.
MR LAX: Oh you don't know at all?
MR VAN DER WESTHUIZEN: No, I can't say Sir.
MR LAX: Well you see when Mr Wills put it to you that your colleagues said they weren't bound, you said you don't remember it like that, you said as far as you know they weren't bound.
MR VAN DER WESTHUIZEN: They were blindfolded, not bound Sir.
MR LAX: Exactly, precisely, you distinguished between blindfolding and being cuffed or bound.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: And you say they weren't bound but they were blindfolded.
MR VAN DER WESTHUIZEN: Yes.
MR LAX: Well how - I mean they could have pulled the blindfolds off, they could have opened the door and overpowered you and run out of the car, anything could have happened if they weren't handcuffed.
MR VAN DER WESTHUIZEN: That is possible, yes.
MR LAX: Surely that's a chance you wouldn't have taken in the circumstances?
MR VAN DER WESTHUIZEN: I mean the probabilities are that you would have kept them handcuffed, these are two dangerous men.
MR VAN DER WESTHUIZEN: That is probable, yes Sir.
MR LAX: And yet you're quite clear in your mind that they weren't.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: Well could it be that they were dead already and that's why you didn't bother?
MR VAN DER WESTHUIZEN: No, they were not dead, they weren't dead already, Sir.
MR LAX: Or incapacitated in some way?
MR VAN DER WESTHUIZEN: No, they weren't, Sir.
MR LAX: Well then it seems a hell-of-a risk to have taken in the circumstances.
MR VAN DER WESTHUIZEN: It seems that way, yes.
MR LAX: Thank you, Chairperson, I have no further questions.
ADV BOSMAN: Mr van der Westhuizen, you stated that Ndaba was taken in such a manner there when the person was arrested by you, so that Shabalala would believe that he was also being arrested.
MR VAN DER WESTHUIZEN: Yes, that is correct.
ADV BOSMAN: Can you explain to us how Ndaba was seized so that it would appear that he was also being taken under arrest?
MR VAN DER WESTHUIZEN: By means of a regular arrest, not only "come with me". It would be reasonably aggressive, a physical arrest.
ADV BOSMAN: Mr Botha's evidence was that he told him to go with him, can you recall that?
MR VAN DER WESTHUIZEN: Yes, that is correct, that was after Shabalala was placed in the back of the car. That is when Ndaba went with Botha.
ADV BOSMAN: Very well. And at the stage when Shabalala could still see Ndaba, what was going on?
MR VAN DER WESTHUIZEN: He was taken out of the car physically and held back.
ADV BOSMAN: By whom?
MR VAN DER WESTHUIZEN: I think I was there, I was on the passenger's side, at Ndaba's side.
ADV BOSMAN: Do you then mean that you are the one who grabbed or pulled Ndaba out of the vehicle?
MR VAN DER WESTHUIZEN: Someone else was there, I cannot recall who, but I was definitely there.
ADV BOSMAN: At which stage do you think Shabalala would have realised that Ndaba was in actual fact an informer?
MR VAN DER WESTHUIZEN: I cannot recall that I said that.
ADV BOSMAN: Or let me put it differently. Were you ever under the impression that Shabalala was aware that Ndaba was an informer?
MR VAN DER WESTHUIZEN: It is possible, but I cannot recall.
ADV BOSMAN: Didn't Col Botha inform you that Shabalala was now a danger because he knew that Ndaba was actually an informer?
MR VAN DER WESTHUIZEN: I think he did say that at a certain stage.
ADV BOSMAN: But didn't that leave you with any distinct impression?
MR VAN DER WESTHUIZEN: It would have.
ADV BOSMAN: Tell me Mr van der Westhuizen, if you had not executed the instructions, what would the consequences have been for you?
MR VAN DER WESTHUIZEN: I cannot say, I don't know, ten-to-one not much.
ADV BOSMAN: Would you just bear with me for a moment, Chairperson.
ADV BOSMAN: With what objective according to you, was Shabalala in detention? Because you stated that he was not interrogated.
MR VAN DER WESTHUIZEN: I cannot respond, I cannot say. I cannot say with what objective he was detained, perhaps it was for later questioning or interrogation, I don't know.
ADV BOSMAN: Didn't you make any enquiries about this?
MR VAN DER WESTHUIZEN: No, none that I can recall.
ADV BOSMAN: Mr van der Westhuizen, wasn't there ever any meeting or gathering of all the person who were involved in the incident?
MR VAN DER WESTHUIZEN: Yes, from time to time.
ADV BOSMAN: What did you actually discuss if you didn't discuss the reason for the detention of these persons?
MR VAN DER WESTHUIZEN: At that stage the people were interrogated by another section. There was other work externally which didn't have any direct bearing on them at that stage. If we had gathered together it would have been for other matters, the same case, but other actions.
ADV BOSMAN: But now you have created the impression in my mind that the entire unit was nothing more than a bunch of caretakers for this person.
MR VAN DER WESTHUIZEN: Caretakers?
ADV BOSMAN: Yes.
MR VAN DER WESTHUIZEN: One could have that impression briefly that they were merely there for that period while we were occupied with other actions.
ADV BOSMAN: Thank you.
CHAIRPERSON: Can I interrupt you for a moment?
Did you say a moment ago that at that stage the people were interrogated by another section?
MR VAN DER WESTHUIZEN: No Sir, C2 the - was it C2, no, C20 were given access to them for identification purposes, Sir.
CHAIRPERSON: You said interrogate, didn't you?
MR VAN DER WESTHUIZEN: Not interrogate, I didn't mean it like that Sir.
CHAIRPERSON: Access to identify what?
MR VAN DER WESTHUIZEN: Identify the goings and doings of known ANC operatives Sir, outside and inside the country.
CHAIRPERSON: For them to act as informers about other ANC operatives?
MR VAN DER WESTHUIZEN: To give - yes Sir, to give whatever information they had about other operatives and identifications.
CHAIRPERSON: So Shabalala and Ndaba were being asked to give what information they had about other ANC operatives inside and outside the country?
MR VAN DER WESTHUIZEN: Yes Sir, by C20.
ADV BOSMAN: And you knew this?
MR VAN DER WESTHUIZEN: Yes, that is what C20 did.
ADV BOSMAN: Then just to answer my question, were you under the impression that they were being detained for that purpose?
MR VAN DER WESTHUIZEN: It was one of the purposes, it was a purpose.
ADV BOSMAN: Thank you.
CHAIRPERSON: I thought we were told that it was just quite by chance that C20 questioned them, that C20 were there for a completely different objective.
MR VAN DER WESTHUIZEN: That is correct, Sir.
CHAIRPERSON: So it was not one of the purposes for which they were being detained.
MR VAN DER WESTHUIZEN: No, if you put it that way it wouldn't.
MR LAX: But you knew C20 were just there "terloops" so to speak?
MR VAN DER WESTHUIZEN: That is right, Sir.
MR LAX: So it couldn't possibly invoked in you a reason why they were being held?
MR VAN DER WESTHUIZEN: No, it wouldn't.
MR LAX: How long did C20 interrogate them for, or question them or talk to them, whichever of those three words is appropriate?
MR VAN DER WESTHUIZEN: I couldn't say, Sir.
MR LAX: Well was it a day, was it two days, was it half a day?
MR VAN DER WESTHUIZEN: I think it took a day Sir, if I recall correctly. It wasn't extensive.
MR LAX: And which day was it amongst the seven that they were in the custody there?
MR VAN DER WESTHUIZEN: I cannot say.
MR LAX: Was it in the beginning, was it at the end?
MR VAN DER WESTHUIZEN: I would by lying if I said, Sir, I can't recall.
MR LAX: Were you present?
MR VAN DER WESTHUIZEN: No, Sir.
MR LAX: Well where were you?
MR VAN DER WESTHUIZEN: I was somewhere in the house. I knew that they were there, but I wasn't present at the questioning. - at the interviews.
MR LAX: And they were questioned separately from each other, one would assume.
MR VAN DER WESTHUIZEN: I should think so, yes Sir.
MR LAX: At different times by them.
MR VAN DER WESTHUIZEN: I think there was more than one member, so they could have each had - they could have been questioned at the same time but not in the same - together.
MR LAX: Yes, but if they were being questioned at the same time, they would have each been able to hear what the other one was saying.
MR VAN DER WESTHUIZEN: Not necessarily, Sir, it's different rooms.
MR LAX: I'm told it's not a very big house.
MR VAN DER WESTHUIZEN: No, it's not.
MR LAX: And in fact Botha's evidence was that one of the reasons why Shabalala became suspicious was that he could hear Ndaba talking, he could hear what he was saying. If that was so, anyone else could have heard what he was saying. Isn't that so?
MR VAN DER WESTHUIZEN: No, I don't know, I can't comment.
MR LAX: Well you were there for a number of days.
MR VAN DER WESTHUIZEN: Yes, Sir.
MR LAX: We weren't there, and is what Botha saying reasonably possibly true?
MR VAN DER WESTHUIZEN: It's possible yes, Sir.
MR LAX: Well then it it's possible, you could have heard the same thing. He doesn't have any special extrasensory perception.
MR VAN DER WESTHUIZEN: No.
CHAIRPERSON: But they would hear what the other one was saying, no matter when they were questioned, if they were questioned in the rooms they were kept in, wouldn't they?
MR VAN DER WESTHUIZEN: Not necessarily, Sir.
CHAIRPERSON: Well if you could hear, you could hear. Anything further?
MR LAX: Nothing, thanks Chairperson.
CHAIRPERSON: Right ...
MACHINE SWITCHED OFF
ON RESUMPTION
MR VISSER ADDRESSES: Chairperson, perhaps we should just have a word about what's going to happen from now on. I'm informed by my learned friend, Mr Wills, that he does not intend to call witnesses, further witnesses. There is the suggestion that's come from my attorney, Chairperson, and that has been put to Mr van der Westhuizen in his evidence-in-chief, that perhaps the family members would want him to take them out there, and perhaps you would be interested in going out to the scene at the Tugela River. I've asked my learned friend, Mr Wills, to establish from them whether there is any point in it and whether they are at all keen on doing that. If they are Chairperson, then perhaps we should make some arrangement as to when that could happen, and if you want to go along then we must obviously deal with that issue.
And then secondly, it would seem that then there will be argument. Perhaps my learned friend can just tell us what he's established from his clients, which might clarify the matter for us, and depending on what he says, we might not have to return at 2 o'clock, Chairperson.
MR WILLS: Yes thank you, Mr Chairperson. If I could just confer very briefly - with respect, you don't need to adjourn, with one of my clients in order to establish as to whether or not a witness will be required but I don't think that is the case at present. If I could just be excused to talk to him in the back very briefly, then I'll be able to inform you. Thank you, Mr Chairperson.
MR VISSER: Chairperson, would you like us to come and see you in chambers, then you can rise now and we can come ...(intervention)
CHAIRPERSON: Well if we're going to adjourn, I want to adjourn so the public can be told when to be back.
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MR WILLS: Chairperson thank you for that indulgence. We won't be calling any evidence. I assume Mr Visser's case is closed and we won't be leading any further witnesses, thank you.
CHAIRPERSON: Well then we can adjourn - what is the attitude towards ...(indistinct - no microphone)
MR WILLS: Mr Chairperson, there seems to be a differing attitude, I wonder if we could arrange that - I need to actually consult a little bit more on that, and then if I could come into chambers in five minutes on that score.
CHAIRPERSON: So we are not - I don't think we will sit this afternoon ...(indistinct - no microphone). If we do do anything, will you be ready gentlemen, tomorrow?
MR VISSER: Chairperson yes, my learned friend has also indicated to me that he would however prefer - but perhaps he should make his request to you, to start a little later.
CHAIRPERSON: I'm sorry to delay you like this, we are going to adjourn and discuss the matter for a few minutes and then I will get someone to come out and tell you when we are coming back here. So if you don't mind waiting for a few minutes, I will get someone - I myself or someone else will come and tell you when the hearing will resume.
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