CHAIRPERSON: Good morning everybody. For the purpose of the record again, we gather today to inquire into the application to re-open the application for amnesty in respect of the deaths of Mr Goniwe and three others. I am Judge Pillay. I'm going to ask my colleagues and all those who represent the different parties, just to announce their names for the purposes of the record.
JUDGE POTGIETER: I am Denzil Potgieter.
ADV SIGODI: I am Sibongile Sigodi.
ADV BOSMAN: I'm Francis Bosman.
DR TSOTSI: Whitcliffe Tsotsi.
MR BOOYENS: Mr Chairman, Members of the Committee, I presume for purposes hereof I must say I appear on behalf of the respondents.
JUDGE PILLAY: Are you...?
MR BOOYENS: We are opposing the application Mr Chairman.
You have been handed Heads of Argument.
JUDGE PILLAY: For the purposes of the record you are Mr?
MR BOOYENS: Oh, I beg your pardon Mr Chairman, Kobus Booyens.
MR BIZOS: May it please you Mr Chairman and Members of the Committee. We appear on behalf of the widows of the deceased as we have done previously. My name is G Bizos, I am assisted by Mr P Mutshoalana and Ms Wheeldon of the Legal Resources Centre in Johannesburg.
JUDGE PILLAY: Thank you Mr Bizos.
MS PATEL: Ramula Patel, Leader of Evidence. If I may place on record at this stage, Mr Hugo, who appears on behalf of Mr de Kock has advised that he will not be present today and that he does not oppose the application. Thank you.
JUDGE PILLAY: Yes, Mr Bizos.
MR BIZOS IN ARGUMENT: Mr Chairman, we were not expecting any opposition to this application and for the sake of completeness, I wish to put certain matters on record before addressing you on the merits of the application. It would be remembered Mr Chairman and Members of the Committee, that a letter was written to Adv Ramula Patel on the 19th of May 1999, enclosing an application for the re-opening. I do not propose handing the letter in, it's in the records of the Commission, but I would like to have certainly a summary of the facts and how we came to be here, as part of the record.
Our letter was acknowledged on the 1st June 1999 and I want to read what I consider to be the relevant portion of it. Copies are available, if they're wanted, but I don't want to burden the record. We were told that on the 1st of June that our application will be forwarded to the interested parties with a request to submit their written answering statements within 14 days. We have been handed the letter, signed by Adv M Coetzee on the 14th of July 1999 to the following effect.
"The application will now be forwarded to all the other parties concerned with a request to submit their written responses thereto within 14 days. Upon receipt thereof, the Committee will then consider the written submissions and will decide on further steps to be taken."
True to the Commission's word, we have been handed a letter dated the 16th of July written to van der Merwe and Bester Attorneys for the applicant.
"We refer to the above matter and enclose herewith a copy of the application for the re-opening of this hearing. You are hereby invited to submit your written response hereto, if any, within 14 days of the date hereof to enable the Committee to make a decision thereon."
We certainly did not receive any objections and I'm informed by counsel for the Commission that none have been submitted, either within 14 days or thereafter, save that this morning we were handed a document called Heads of Argument. I want to deal in due course with some of the submissions. May I make it clear that I'm not saying that they have no right to appear because they didn't give notice, Mr Chairman, I merely put this on record in order that we may argue the merits of the application properly. We never expected any opposition, but mindful of what Cromwell said to his troops, that they must put their faith in God and keep their powder dry, for some reason or other in the last couple of days, we procured an affidavit without knowing anything about these Heads of Argument, Mr Chairman, by Mr Matthew Mungo Soggot, which I ask for leave to hand in, dealing with some of the points that are raised in these Heads of Argument, that the document has not been properly identified or authenticated or that there is no evidence as to precisely when it came into our possession. I will deal with those arguments, but may I hand in the affidavit, Mr Chairman, of Mr Soggot who wrote an article and who had a telephonic interview with Mr de Klerk. He reports what Mr de Klerk said about this minute and that he remembered it and that there was a discussion between Mr Soggot and Mr de Klerk, one of the persons that is on the first page of the minute said to have been present, Mr Chairman.
We are really surprised by the attitude taken by the applicants in view of the manner in which these proceedings have been conducted and particularly what has been admitted on its face value, particularly in relation to secret documents, such as this appears to be. And right at the outset, before getting into any further matter, we would merely want to refer you to the following documents in the bundle, which are in similar format, minutes or memoranda, I will merely give you the page number, Mr Chairman, the Exhibit No. H, a memorandum from the Head of the Security Police, Exhibit I, also, we refer you to only the documents that are in the similar format which were admitted in evidence, to which no objection was taken and which we ourselves did not produce - I haven't had time to check precisely who produced what, but they were received in evidence without authentication.
What I am really saying to you Mr Chairman and the Members of the Committee is this, in view of what is contained in these Heads of Argument, as they are called, that you are not called upon to make any findings of fact at this stage. The question is, is there prima facie evidence, if properly proved, if the matter is re-opened, which will establish facts which are relevant to the issues before you?
The next one is Exhibit I, which is in the same format and it's a memorandum in relation to the appointment of Mr Goniwe by the Director of "Personeelbestuur" and the annexure attached to it which is from the Secretariat of the State Security Council. I didn't hear the applicant's counsel saying that these were not properly authenticated and therefore they were not to be used.
Exhibit K, from the Commission of the Police and "uiters geheim", dealing with "proposed actions against Matthew Goniwe, a black man and he is a teacher at Cradock". The other document that was handed in is Exhibit S, also headed confidential and it is a minute of the meeting of the STB, 385, held at Commandment.
JUDGE PILLAY: Well Mr Bizos, what struck me when I browsed through the Heads of Argument of the Respondent in his application is how valid is this Secret Act today? This Secret Act that they rely on, to keep that document away from public scrutiny, one would have to rely on the circumstances of the apartheid government that time. The question to be answered today is, that government is no longer in power, can the applicants or the respondents in this instance rely on the secret of the time?
MR BIZOS: No there are various answers to it. Firstly there can be no secrets in relation to murder. It doesn't matter whether the President or subsequent President or the Minister of Defence or the Minister of Justice or the Minister of Foreign Affairs was present, no system of law will ever tolerate the suppression of documents which are a prima facie document showing that there was either incitement or conspiracy to murder. There are other grounds Mr Chairman, but I submit that that is enough.
The other document Mr Chairman, is the Exhibit S, the "Kommandament" of the Eastern Province Head Quarters and Exhibit U, a document of the National Security Management System. That would be enough, I submit, to say that there is no substance in relation to that argument, but what Mr Soggot said, Mr Chairman, is he wrote an article based upon this Minute and he says that:
"At approximately 8 a.m. on the 27th of May 1991, I telephoned Mr F W de Klerk at the Hampton Court, London home of his new wife, Elita Georgiadis and referred to the contents of item 5(f) on page 3 of the attached Security Council Minute of March 1994, annexure B (which he annexes). F W de Klerk did not dispute the authenticity of the minutes and discussed the meeting."
Mr Chairman, the article also says that he discussed it, or attempted to discuss it, with the person who made the proposal that the two teachers should be removed and we know what that meant from the evidence of Mr Jaap van Jaarsveld, because the then Minister of Education, Mr du Plessis, claimed to have suffered from amnesia in relation to these matter, to the particular matter. But that of course will be, if there is a re-opening, that will be canvassed, as to whether he in fact is suffering from amnesia or not.
DR TSOTSI: Mr Bizos, excuse me a moment. Mr Soggot doesn't share that he asked Mr de Klerk to vouch for the veracity of the minute, nor does he - all that he says is that he just referred to it and the fact that he did not dispute the authenticity. Do you think there is sufficient evidence for us to accept that in fact this matter is true and correct?
MR BIZOS: ...(indistinct - mike not on) First of all a document Mr Chairman, a document of this nature speaks for itself in the sense that prima facie you are entitled to assume that it is genuine unless someone of the 12 top people in South Africa at the time, came along and said "No, it's false, it's a perjury", you are entitled to assume because of this silence, to assume that if anybody were to forge the document, he is not likely to have put the President, 5 or 6 Ministers, the Head of the Police and other people present, which could be so easily denied. We are not asking you to make a finding of fact that this is a genuine document, what we are saying is, it's a prima facie document. If there had been any suggestion whatsoever within the 14 days that the authenticity of it is being put in issues by the persons who employed their clients, we can hardly go to these gentlemen and say "Give us an affidavit that this is a correct copy".
JUDGE PILLAY: Mr Bizos, in fairness to them, the applicants, none of them were present at that meeting, so they were not in a position to question the accuracy of that Minute.
MR BIZOS: ...that if there is any serious dispute that this is not a genuine minute, one would have expected the respondents to this application, to phone their erstwhile employers and say: "Won't you please tell us whether this is a forgery or a correct minute?" and you are only to act on a prima facie basis on this issue. It's a document which purports to be what it is and it's authenticity could very well have been put in issue during the period that they were given an opportunity to respond to it.
JUDGE PILLAY: Something interesting that I haven't considered myself, but I'd like to raise the issue with you, is this a State document where the erstwhile approaches were that it is what it purports to be, unless otherwise proved?
MR BIZOS: I can't really in view of this - this is a matter of - without any notice and as a matter of, taking us by surprise. I am mindful of the learning in relation as to what is a State document or not and whether it's mere production proves itself, or whether the presumption of validity, I think that that is where you have in mind that, I don't remember the Latin for it, it's never been - something about ...(indistinct) I'm sure that others on the Committee remember it. I don't know whether that principle applies in the particular circumstances and I can't make any meaningful submission to it, but we do not have to rely on any presumption because we actually have on oath what you will see on the second page, the last paragraph, what Mr Soggot confirms as correct, under oath. Speaking from - have you got the second page of the Weekly Mail's report? It's right at the end of Mr Soggot's affidavit, yes, the second page of that. Is it the first page? Oh yes, it's the first page there, it's on the right instead of being on the left, but what he says
"Speaking from the London home of his new wife, Elita Georgiadis, de Klerk said this week he remembered the meeting clearly"
Now surely that is prima facie evidence.
"He remembered the meeting clearly but insisted that du Plessis had proposed redeploying Goniwe. I distinctly remember du Plessis was the then Minister of Black Education and that he said if he's appointed elsewhere, he should be re-routed, because Goniwe was a teacher, if I remember correctly and du Plessis wanted to offer a solution that Goniwe should be taken away from the school in Cradock or wherever he was and taken to another, be displaced from Cradock and the area and given appointment elsewhere. I remember that."
Now this was the then Minister of Home Affairs, later a President, who says he remembers this meeting when the minute is read to him. How much more evidence does one have to prove on a prima facie basis, that this is that the prominence and authenticity of this document is to be accepted on that prima facie basis. Correct, it is open to the applicants if they want to, to call these gentlemen, Mr Chairman, and say "No, it's not a correct Minute". We look forward to that with considerable interest and we'll have to do some preparation, but the bringing up the authenticity of this document is a red herring which will not be given, in relation to this application, any serious consideration, in our respectful submission.
Now, what I want to submit is this about these Heads of Argument, let me dispose of this before we come to others. The cases that are quoted have no relevance to the nature of this application. There is a difference between a Judgment having been given and wanting to re-open a case and there is a difference between civil disputes or even criminal cases. Where a case has been closed, then you may have to show that you could probably have found this evidence beforehand and why do you come with it so late and these are the considerations, because of the nature of reaching finality in matters. Now those principles in those cases have no application to an inquiry where you are called upon to decide whether full disclosure has been made and whether or not the other requirements for the granting of amnesty exist or not.
The other complaint that is made that we have not disclosed precisely when we got it and where it came from. Well Mr Chairman, there are people who are perhaps public spirited enough when they come across evidence which prima facie shows a conspiracy or an incitement to murder, that they make it available. This document was made available to us, as our letter to the Committee says, shortly before that letter was written, that is shortly before the 19th of May 1999. I don't know what other information, if this information had been available to us during the course of the proceedings or earlier, we would most certainly have made use of it.
JUDGE PILLAY: ...(indistinct - mike not on)
MR BIZOS: Thank you Mr Chairman. We wouldn't have forgotten about it in our files. So, I think that that disposes of that argument. I only - I haven't had a full opportunity of studying the document because it was handed to me this morning when I had other things to attend to, but I will reserve my right, once that argument is presented, to deal with it in reply, Mr Chairman.
Let me deal with the application and why we submit it is necessary for the Committee to re-open the proceedings. First of all I think that being a statutory body, that you would want to be satisfied that on the statute you have this power to do it and I am sure that you are all more familiar than we are with the provisions of the Act, but we submit that you do have the power and I merely want to refer to the sections, Mr Chairman, and that is I refer to sub-section (ii) of the definitions section, that is Section 1. This is where the Committee and Sub-Committee is included in the Commission so that the powers of the Commission are the powers of the Committee. I want to refer to Section 5 (m) (M for Mary). On its own initiative all that we request of any interested person, inquire or investigate into any matter in terms of this Act, so that investigate any matter. Then I want to refer to paragraph 19 (v) (a) which deals:
"The Committee shall, for the purposes of considering and deciding upon an application referred to in sub-section (i), have the same powers as those conferred upon the Commission in terms of 5 (l) and (m)."
L doesn't really apply, but (m) does, Mr Chairman. (M) is the one that I have read to you and Chapters 6 and 7 and you will find in Section 30, which is in Chapter 6, Mr Chairman, you will find:
"The procedure to be followed at investigations and hearings of the Commission, Committees and Sub-Committees, the Commission and any Committee or Sub-Committee shall in any investigation or hearing follow the prescribed procedure or if no procedure has been prescribed, the procedure determined by the Commission, for which you're entitled to substitute Committee, or in the absence of such determination in the case of the Committee or Sub-Committee, the procedure determined by the Committee or Sub-Committee, as the case may be."
Now the power to recall, it's not really to re-open in the true sense of the case having been solved, of hearing further evidence before Judgment, is clearly covered by the sections that I have referred to, so there is no reason whatsoever for the Committee to have any doubts about it's power to call further evidence. I now want to deal with the application, Mr Chairman.
JUDGE PILLAY: Mr Bizos, I just thought I'd mention to you, you are referring to an application before Judgment. For what it's worth, I may as well inform you that we are dealing with a matter, an application, in which Judgement was not published yet. It doesn't affect your submission though.
MR BIZOS: ...(indistinct - mike not on)
JUDGE PILLAY: Yes, but not published.
MR BIZOS: Well, Mr Chairman, I'd like to consider that. I'd like to consider that but confronted as I am with a matter of that nature, on principle I would think it depends what the decision is. If the decision is to refuse amnesty, then our interest in the further pursuance of the matter may be less cogent. If ...(intervention)
JUDGE PILLAY: I'm prepared to give you a couple of minutes, or as long as you need, to consider that submission. I don't want you to rely on what I've just said, I'd certainly like you to give your argument a full go.
MR BIZOS: May I just complete my submission in relation to it? If the decision that was arrived at was to refuse amnesty, as I said, then our application is less cogent. If on the other hand, amnesty was to be granted in terms of the decision arrived at, then the question that arises is, is there prima facie evidence before you, which, if you were to hear it and believe it, the decision may be, the unpublished decision may be varied. I think that that is - but of course a judgement isn't a judgment, speaking off the top of my head, until it is delivered. I don't know what the position is, if it has been signed. I'm not sure about that. I do remember that in one instance where there were two judges and one of the judges passed away, the judgement was delivered as the judgment of the full court, but again I'm speaking from memory and I haven't really worked out precisely whether this is an analogous situation, but this is what I would submit, Mr Chairman, unless different counsels occurred to us as time passes. But either way, it cannot be said that the information that is placed before you on affidavit, on a prima facie basis, is irrelevant to the issues that you have to decide.
The grounds which we give in paragraph 6.1 of the application, the Minutes corroborate the evidence of Mr Jaap van Jaarsveld, Volume 2, Annexure A, here in record, 204 to 291.
"It was the evidence of van Jaarsveld that in March 1984, he was serving as a Lieutenant in the Intelligence Unit of the Security Police in Pretoria under the instructions of Maj Craig Williamson. He spent the day in Port Elizabeth and Cradock in the company of Azail in order to investigate the possibility of assassinating Goniwe. At the hearing it was reported as common cause that the date of van Jaarsveld's visit was the 21st of March 1984 and we give the reference to the amnesty record. As a result of an objectively verifiable incident in which van Jaarsveld threw a stone through the windscreen of Janet Cherry's car."
The Minutes refer to the State Security Council meeting on the 19th of March 1984, two days prior to van Jaarsveld's visit to the Eastern Cape. The Minutes accordingly confirm the date and timing of van Jaarsveld's version and establish that, in as early as 1984, the State Security Council, ordered the assassination of Matthew Goniwe. This is the first documentary proof of the fact that the removal of Mrs Goniwe and Calata was discussed as at State Security Branch Council level in as early as March 1984. It is the only conclusive documentary proof before the Committee that links a decision taken at the highest level of the government to the actions of the applicants. It contradicts the contents of the written applications of all the applicants to the effect that the decision to kill Goniwe was only taken two or three weeks prior to his death, by the applicants themselves, as a result of information that they had gathered. The oral evidence of the applicants was contradictory and vague as to the source of the order. The minutes are clear evidence that their versions, as to the timing of the order, are not true. It establishes that Johan Martin van Zyl at least, has not complied with the requirements stipulated in Section 20 of the Promotion of National Security Act for the granting of amnesty in that he did not disclose the fact that he had accompanied a member of the Head Office Intelligence Unit of the Security Branch to Cradock in order to assist him in his task of assessing the most suitable way of assassinating Goniwe. The minutes of the meeting record the fact that Gen D J Coetzee, the Commissioner of the South African Police at the time, was present. The close relationship between Maj Craig Williamson and Gen Coetzee is not the matter of public record and has been confirmed by Williamson before the Amnesty Committee. His amnesty application for the deaths of Ruth First and Jeanette Schoon and we give you the page numbers. The Minutes record the presence of F W de Klerk in the meeting and therefore contradict his evidence given before the Truth and Reconciliation Commission, that it was never the policy of the government or the National Party that people should be murdered and that such instruction would be in conflict with the policy of the government, as it had been at all times within his knowledge.
We submit further that the submission that the Minutes are sufficient evidence to warrant the subpoenaing of Maj Craig Williamson and Gen P J Coetzee at least to give evidence before the Committee.
What I want to do in addition, Mr Chairman, is to give you the references to the record, which in some way, contradict the summaries given by counsel for the applicants in the main application. The first is that van Zyl does not directly repudiate the evidence of van Jaarsveld, claiming instead that it may be possible but that he does not recall the incident.
Now let me pause there for the moment on the question of relevance as to whether amnesty should be granted to van Zyl because he has made full disclosure. A finding of fact on the credibility of van Jaarsveld of necessity, must have been made and should be made, with respect, if the matter is re-opened, as to whether van Zyl can be believed that he does not remember what van Jaarsveld says, but a person of his intelligence, of his seniority in an elite police force branch with such considerable successes against its enemies, can be heard to say that he does not remember that he spent a whole day with van Jaarsveld and whether or not, and he was asked questions by the Committee about it, did Sakkie van Zyl know when he would come down. I said, "Yes, we discussed it in order to reconnoitre Goniwe's ..." - now how can anybody forget that? But what we have here is this, just in case it was seriously suggested, which it wasn't in fairness to our learned friends, that it may be that van Jaarsveld, for purposes of his own, decided to say this. There has never been greater corroboration of a witness's evidence, than that of van Jaarsveld by this Minute. Let us just analyse. You will recall that he did not remember the day. It was only by reference to an event in which he says he took part, the throwing of the stone that broke a windscreen, that the date is fixed by the person whose windscreen was broken as the 21st of March, for a very good reason, that it was Sharpeville Day and that she remembered it and she had been to a meeting, when coming away from that meeting, an unknown person threw a stone and broke her windscreen. What it turns out to be, that two days before that the head of the Intelligence of the Security Police, a close associate of his mentor Gen Coetzee, the Commissioner of Police, who was present at the meeting, according to the minute, according to van Jaarsveld the Head of the Security Police go and reconnoitre the house of Goniwe for the purposes of murdering him, eliminating him, removing him, whatever, there was no doubt in van Jaarsveld's mind what was meant.
And, there is one other very important corroborating factor and that is van Jaarsveld says, "Don't do it in Cradock, it's difficult, he's surrounded by people, waylay him somewhere along the way and kill him then" and we know that that is precisely how Matthew Goniwe, Calata, Mkhonto and Mohlauli were killed. How much more corroboration does one need of the evidence of a person in the Security Council's Secretariat, as van Jaarsveld was, to come to Port Elizabeth to speak to Gen Erasmus and it's inconceivable that, albeit a Lieutenant but in the Security Council Secretariat, would have come to Port Elizabeth and going directly to Sakkie van Zyl and if this is so, it doesn't avail Mr van Zyl, nor his Council, to say that he didn't really contradict the evidence. He's lying when he says he doesn't remember and the reason why he is lying is that he is protecting others. The others that headed his unit, like Col Erasmus, to whom van Jaarsveld said he went to and let us assume theoretically that van Jaarsveld may be incorrect in relation to the identity of the Head Officer, it may have been one of the other two applicants that were senior to him, or someone else, but he doesn't speak about it.
In his evidence in chief in his application he makes out a case without any mention whatsoever of what happened one year and a couple of months before. He doesn't mention anything about the advice that it should not be done in Cradock but that he should be waylaid along the road somewhere. Now, as I say, it may well be that if the completed judgement was in favour of our clients, it would be a factor in weighing whether or not to re-open the proceedings or not. If they are not re-opened, there may be other places where the matter can be dealt with and investigated, but under no circumstances, we submit, that van Zyl and the others who have made common cause with him, how did that, that this troop of van Jaarsveld, with the advice given, have been kept a secret for a year and a couple of months, when there was this charade which they put up that Col Snyman said something which may have indicated that the people above may have been in favour, all those evasions that you heard. Wouldn't van Zyl have said: "Look there's no problem about killing them. A Lieutenant from the Security Council Secretariat came and reconnoitred and he told us the best way to do it." It doesn't make sense. What does make sense is that these euphemisms were used in the Security Council, "verwyder". We heard the evidence of van Jaarsveld himself about the euphemisms, we've heard the judgment of His Lordship Mr Justice Zietsman about the euphemisms, we had the portion of the judgment of dealing with the evidence of the then Brigadier in charge of the Port Elizabeth command in the army, we've heard the evidence of du Plessis ... (intervention).
JUDGE PILLAY: Mr Bizos, whatever interpretation certain people want to attach to the word "verwyder", it could only have meant transferral of posts, if Mr Goniwe was a teacher at the time. He's an "oud onderwyser" meaning an ex-teacher and therefore the question of transferral doesn't arise.
MR BIZOS: ...(indistinct - mike not on) We adopt it, with respect. He was an "oud onderwyser" which means that he was already out. Well, these things, if the matter is re-opened, will have to be explained, but the word "verwyder", you will recall what the signal was that was sent, from the Port Elizabeth Regional Command to Gen van Rensburg, at van Rensburg's request. It's true that the word "permanent" is introduced, which makes it obviously very much stronger and "uit die samelewing" but is it just a coincidence that the same word is used and what Mr de Klerk and Mr du Plessis and Mr Coetzee may say that "verwyder" meant, to remove him - I remove this glass from here to here, yes, it's "verwyder" perhaps, but who interpreted as "eliminate them" or "kill them" in the manner in which Williamson gave an instruction to the Lieutenant in the Secretariat of the Security Council? The most likely person is the Commissioner of Police who was there, Williamson's ...(indistinct) and mentor. Of course Williamson may deny it if he's called here but a finding will have to be made as against the evidence of van Jaarsveld, corroborated by the signal. I would submit that this piece of evidence is not only significant for the purposes of this hearing of these applicants, but it is also a matter of tremendous national interest because it is the most cogent bit of evidence that has seeped through from the conspiracy of silence of the highly placed Presidents and Ministers, that they were discussing the fate of individuals in the Security Council and that this, taken together with the signal sent later, that "hy moet verwyder word, permanent verwyder word uit die gemeenskap" are related. It is important, for the purposes of reconciliation, that the truth be told and that is the purpose of amnesty. This is why people who don't tell the whole truth are denied amnesty and it isn't only van Zyl. Murder is discussed, the manner in which they commit murder with their co-conspirators, who ordered this murder, was absolutely vital. Why would van Zyl keep a secret from his fellow-murderers the fact that there was this man from the Secretariat of the Security Council who advised that he should not be killed in Cradock but waylaid again somewhere along the road?
Are the dates a coincidence? It would be a far-fetched submission to be made and of course the fact that van Jaarsveld didn't give evidence of the date and that these two facts dovetail, like a perfectly fitting glove, is, we submit, of the utmost importance.
I want to give you some references in relation to van Zyl's evidence. We deal with this in 9.2 to pages 9.2 to 9.10 in our Heads of Argument and I don't want to read them out, you have them Mr Chairman, but the evidence of van Zyl is to this effect. The Heads of Argument in the main application when we argue for the refusal, this is where we deal with the improbabilities, but what we say is, and the credibility of van Jaarsveld, but we say that the Minute puts it beyond any doubt. On page 203 to 207, there is no admission by van Zyl, van Zyl wanted - knew that the evidence of van Jaarsveld was likely to be believed. He didn't want to contradict it directly or strongly. The judicial experience of all of us, I beg your pardon, the judicial experience of some us and the practice by some of us, clearly shows that witnesses are circumspect about denying strong evidence against them. Let me read you merely a portion, Mr Chairman, merely a sample of what appears on page 203 to 207.
"I cannot remember that. I do not recall such a person or such a meeting or driving to Cradock with him. It looks a bit vague to me and if I remembered it, I would definitely have mentioned it because it cannot change anything in my case as far as I can remember."
Of course that's been what he considers smart lying. He didn't know when he made his application that the order came 3 weeks before, that there would be evidence from van Jaarsveld, but once that evidence was there, he says "I cannot remember". He says:
"I really cannot remember this incident."
Question:
"But it also tends to show a number of things. Firstly, that it might have happened and you don't remember?"
"There is a remote possibility Mr Chairman."
"Although remote, there is a possibility. There was talk about it before?"
"That's correct, but the operation started after the conversation with Col van Rensburg."
"The planning of the specific operation?"
"That's right."
Suggestion: "As early as March 1984?"
"I cannot remember, that's possible"
"And you cannot deny under oath the statement by van Jaarsveld as to what happened that he was down here for a purpose."
An argumentative answer, not a denial, but an argument:
"Col Erasmus was not here in 1984, I only arrived in 1984, but I cannot recollect and I don't know if Col Erasmus can recollect that."
That's not an answer to the question. That's clutching on the straw that Col Erasmus was not here. We've already made submissions in the main argument, but their superior, one would have expected if you didn't know anything about this, to have taken the stand and say: "I was not there. I didn't know anything about it. This was not reported to me in 1984, as van Jaarsveld says." Relying on computer information as to where he might have been, or where he should have been, doesn't help the applicants.
206,
"Col Erasmus aware of the purpose of our visit. He can remember that, but he cannot remember that he actually met me. He suspects that it was one Sakkie van Zyl and I cannot remember that, that I met him. I think that is much more likely that he's confusing Col Erasmus, it would seem to me."
Now why these answers? And also, at one stage the cross-examination seemed to suggest that the identity of Sakkie van Zyl was put in issue, but I submit that what happened during cross-examination and re-examination and in answer to members of the Committee, with the good offices of one of the newspaper people here that had a very good photograph of Mr Sakkie van Zyl, the identity of Sakkie van Zyl was proved beyond any doubt whatsoever, so that, we would submit that this Minute corroborates van Jaarsveld to such an extent.
JUDGE PILLAY: Van Zyl in his evidence, put it at best, as far as he was concerned, that van Jaarsveld may have seen him before and that's the best he could do, that is van Zyl. I said, in van Zyl's evidence he puts it at best that it is possible that van Jaarsveld had seen him once before. That's all he can say. The identification of van Zyl through the photograph is in contradiction to that really, isn't it? It negates van Zyl's evidence.
MR BIZOS: Also the inherent probabilities. How can an intelligent man, van Jaarsveld must have impressed you as an intelligent witness, how does he substitute van Zyl for someone else and the evasive evidence of attempted denial speaks volumes. What would you do with an accused person before you, Mr Chairman, if the evidence of the State witness is: "I was with this man, I identify him" and his evidence is that
"We went out on a murder expedition which didn't take place on that particular day. We spent the whole day together. We went to watch the UDF people and others marking Sharpeville Day. In his presence I broke a windscreen out of a wanton..."
How does one forget that? How does one make a mistake about that? And of course, to crown it all, two days before there was a call for the "verwydering" of Goniwe. None of the applicants could have remained ignorant of the happening of this event. On the basis that van Zyl would never, never, if there was a debate about this charade of having a discussion with their superior officer and collecting material as to whether he was to be a target for assassination or not, all that is humbug, Mr Chairman, because an employee of the Security Council Secretariat had come down to reconnoitre Goniwe's house, as to whether he should be killed and he then reports "Don't do it that way, waylay him" and we know that that was precisely how he was waylaid and killed.
Subject to any questions, Mr Chairman, that the Committee may have, this is all that we have to say except that if it is re-opened, the absolutely necessary witnesses, in our submission, are Gen Coetzee, Maj Williamson and despite Mr du Plessis' denial to Soggot that he did not remember, he is the one who made the proposal, he should be called. The other is that at the end of the Minute you will see that this arose as a result of a report of a General Groenewald. Now what is it that he reported? What information did he have? It's either that paragraph that arising out of his report to the Security Council, where is that report? If it was destroyed, why was it destroyed? By whom? All these are questions which we submit the families of the deceased are entitled to answers, if there is any prospect whatsoever of granting amnesty to these applicants, Mr Chairman.
There would be others of course, Mr Chairman, the Presidents or others, but let's have those that are immediately connected with the Minute and the report.
JUDGE PILLAY: Mr Bizos, if we should find on a prima facie basis that this document is relevant and admissible on a prima facie basis, that would mean that at some time in the future, the inquiry has to be re-opened. In terms of the Act, the Truth and Reconciliation Act, all those present at that meeting become implicated people and they would have to be notified.
MR BIZOS: The whole Act was passed for the purposes of trying to ascertain the truth. If it is re-opened Mr Chairman, the high office or the number or the amount of time that it may take is not a serious consideration. It may be inconvenient for members of the Committee, it may be hard on the resources of the Legal Resources Centre where the three of us work, it may be embarrassing for the people who were present.
JUDGE PILLAY: I asked the question merely to find out whether you agree with my assessment of what should happen in the event of us making a finding.
MR BIZOS: Mr Chairman, that they should be given notice, but we do not, at this stage, ask that everybody should be here for the first hearing, but arrangements can be made, but I do take the point, with respect Mr Chairman, that each one of those persons present has something to answer. I will telegraph the question to them. What, who and why did - one of them there present must have told Williamson: "Send somebody to find out how we can kill Goniwe". That that happened by a person who was present at the meeting, is as certain as the sun will rise tomorrow morning, otherwise how did it get there? That the person in the employ of the Secretariat of the Security Council is told by the Chief of Intelligence "Go and reconnoitre Goniwe's house". Who told Williamson? The probabilities are that his boss told him, Gen Coetzee. The question then will arise, what was the code between Mr du Plessis and Gen Coetzee? And it also, Mr Chairman, and this is not the first time "verwydering" was used. van der Westhuizen's language in the Ciskei matter, the signal of the 7th of June.
JUDGE PILLAY: The Eastern Cape Command.
MR BIZOS: ...Command and whatever, Mr Chairman, the consequences may be, if there is a reasonable possibility that the truth will out, so let it be. What will the judgment, with the greatest respect, Mr Chairman, be on all of us if this opportunity is missed?
JUDGE PILLAY: Mr Bizos, you are seeking the admission of this Minute together with the declaration that those people whose names you mentioned be declared necessary witnesses?
MR BIZOS: ...(indistinct - mike not on)
JUDGE PILLAY: Yes, Mr Booyens.
MR BOOYENS: Are we not going to take a short adjournment?
JUDGE PILLAY: We could, for 15 minutes. We'll adjourn for 15 minutes.
COMMITTEE ADJOURNS
ON RESUMPTION
JUDGE PILLAY: Yes, Mr Booyens.
MR BOOYENS IN ARGUMENT: Thank you. Mr Chairman, the first issue I want to deal with is simply the following, that it is indeed correct, as my learned friend has pointed out, that this Committee applies its own rules in so far as procedure is concerned. That, I think, is wide enough for the Committee to decide what evidence it would allow and under what circumstances it would allow it, or not. However, the basis for my argument, where I question whether the way in which an attempt is made to hand this document in, is based on the principle that what is good for the goose is good for the gander.
This Committee, with objections by my learned friend and I quoted the relevant passages, made it fairly clear to me that I would not be allowed to hand in an affidavit by Gen Erasmus. The question, this only is and that is the whole purpose of this initial argument, is can it then in the circumstances be fair administratively to allow what would be indeed a different procedure as far as this document is concerned? That is really as far as that argument goes. I do not want to repeat it unnecessarily.
The question that you, Mr Chairman, raised about a State document, I think you in fact referred to a public document, in the sense that it's a document that was kept by a public official in the execution of his duties, etc, etc. The only point that we are making there is:
1. At the stage when these documents were made, they were classed secret, which meant that the public does not have access to it. That being so, it does not meet one of the legs for the admissibility of a public document, which can be authenticated, being handed in merely as proof of its content. That's the point I'm making.
JUDGE PILLAY: Mr Booyens what I was really referring to is, I can understand under that apartheid government that those rules applied and the Public Secrets Act applied etc, specifically for this type of document. The question I ask, is that applicable today in the new order? And Mr Bizos answered that question and rather pre-empted my following question as to whether any protection could be afforded to any document if it involved the commission of a crime.
MR BOOYENS: Mr Chairman, I'm dealing purely with the question as to whether or not it is a public document and as far as the laws of that government are concerned, it was the previous government, those laws stayed in terms of the Constitution and up until such time - and even if a top secret document is declassified, it still does not mean that the public had access to it at the time when it was made, so that is the basis on which I say it would not be admissible on the basis that it's a public document, but that's a legal argument. Like I say, that is good and with respect, that will still be good because that's a principle of common law, it's got nothing to do with the Act. It's a common law principle, so this document can for that reason, never be admitted on the basis that it's a public document.
Mr Chairman, my learned friend made a lot and I think repeated it four or five times ...(intervention)
JUDGE PILLAY: Why does it still enjoy protection?
MR BOOYENS: Is there any evidence that's been declassified Mr Chairman?
JUDGE PILLAY: It was classified in terms of a previous order.
MR BOOYENS: No, it was classified in terms of an Official Secrets Act and that ...(intervention)
JUDGE PILLAY: Under an apartheid government.
MR BOOYENS: It doesn't matter, Mr Chairman. The apartheid government made the Criminal Procedure Act, that's still applicable. The official, this country now, this government, has got an Act dealing with official secrets. There are still official secrets, the public is still not entitled to see everything. There are certain - I'm pretty certain that minutes of a Cabinet Meeting, for example, are not accessible in this country to the public, for that reason it will not be a public document and unless somebody can show us that this document has been declassified and then even I would say that it does not meet the common law criteria for being a public document.
JUDGE PILLAY: In the present day, if someone in the street has an interest and needs some administrative relief and has to resort to a Cabinet Minute, is he not entitled to ask or apply to court for the production of that minutes?
MR BOOYENS: The legislation in that regard, you're referring to the section in the Constitution that talks about freedom of information. As far as I know that Freedom of Information Act has not been passed yet, but assuming it will be passed, Mr Chairman, it will be ridiculous. Remember all those human rights are also qualified subject to Section - I didn't know we were going to get into a constitutional argument, but the section that says human rights are subject to the qualification of what is in the common good, basically, I'm not putting this exactly.
JUDGE PILLAY: Section 33 or something.
MR BOOYENS: If you say it's in my interest to know the secret details of the South African Defence Force and they say: "But it's protected under the Official Secrets Act, or whatever, you'll not be entitled." It is not an absolute and unqualified right, it's a right always subject to Section 33. But Mr Chairman, what I'm saying here is simply, on the basis that what I've said earlier on, is that the Commission should just warn itself that it cannot be said that it applied different norms as far as the applicants are concerned and as far as the respondents are concerned.
My learned friend has made a lot of the fact that my learned friend says that Mr van Jaarsveld has been an employee of the State Security Council. At page 210, that statement, let me preface this by saying, by stating that that statement of my learned friend is incorrect in so far as this is concerned. At page 210 van Jaarsveld, the witness called by my learned friend, no sorry, I'm first going to quote page 205, van Jaarsveld gives the following answer:
"Chairperson during 1984 I was connected to the Intelligence Unit of the Security Branch in Pretoria. I was a Lieutenant. Approximately during the middle of 84 I received an order from Williamson etc."
Now maybe that doesn't answer you, doesn't supply the final answer but then page 210 certainly does. At the bottom of the page:
"From 1989 I was involved with the Secretariat of the State Security Council. I'm aware of what the procedures were."
He only joined the State Security Council in 1989, Mr Chairman, he was not an employee of the State Security Council in 1984. He was working directly under Craig Williamson in fact.
Now let us try and get clarity.
JUDGE PILLAY: But was Craig Williamson in the Security Council at the relevant time?
MR BOOYENS: No, he wasn't. Craig Williamson was Chief of the Intelligence Section of the Security Police.
"Chairperson, during 1984 I was connected to the Intelligence Unit of the Security Branch in Pretoria."
No, Craig Williamson was with the Intelligence Section, Mr Chairman.
So it wasn't a case of an employee of the State Security Council being sent down here, but Mr Chairman, let us just attempt here to see what this is really about. It is not, and in fact you can read my cross-examination of van Jaarsveld, you can look at our approach to van Jaarsveld's evidence. I challenged van Jaarsveld basically on two things. I said to him, Gerhard Erasmus wasn't here, if you came here in 1984 and I said to him "You are mistaken that you went out with Sakkie van Zyl." I never said that van Jaarsveld did not come down to Port Elizabeth. I didn't even go so far as to say that he didn't come down on the date when he claimed he did, because you would recall that the fact that it was not necessary to call Cherry was due directly to an admission made by us, so the whole issue and if we call the whole cabinet from PW Botha, the then State President, down to Johan Coetzee, they cannot answer the material question and that is "Was Sakkie van Zyl the man who accompanied him?"
Mr Chairman, and that is a credibility finding you will have to make. If the Committee were to decide that van Zyl is lying if he says that he had contact with van Jaarsveld, then it's a credibility finding and none of the persons mentioned by my learned friend, not even Craig Williamson, can help you in that regard, because that is van Jaarsveld's word against van Zyl's word and it will stay that way. I do not know why Craig Williamson gave van Jaarsveld the orders. I do not know whether or not Craig Williamson was even aware of the decision, the discussion, I should qualify, by the State Security Council in this regard. What I do know is that ...(intervention)
JUDGE PILLAY: If he didn't know, then the plan and the plot to kill Mr Goniwe must have been Craig Williamson's idea himself, isn't it?
MR BOOYENS: The evidence was, it's either in van Jaarsveld's application or somewhere in his evidence, as a matter of fact I think it's in his application, I do not think Williamson was the Commanding Officer of the Intelligence Unit at that stage. I think he said it was either Oosthuizen, or he mentioned another name.
JUDGE PILLAY: Mr Booyens, whatever the case may be, if you submit that we don't know whether Williamson acted on the instructions, or as a result of the decision of that meeting now under discussion, if it weren't so, if he didn't act as a result of that decision, then he must have acted of his own accord.
MR BOOYENS: My reaction to that is, it may indeed be so. It matters not one bit whether it came directly from the State President, or whether Craig Williamson sitting in the Intelligence Section decided on his own, to kill Goniwe, what does it matter for purposes of this inquire? It may go a lot wider, but Mr Chairman, this is not an inquiry into the murder of Mr Goniwe and the three others. My learned friend may be extremely enthusiastic about cross-examining Mr Williamson, Gen Coetzee and a number of other people that he mentions. That may indeed be so and if this was a Commission of Inquiry established for that purpose, by all means. This is a Committee that's got to decide whether or not the amnesty applicants that appear here and Williamson is not one, Coetzee is not one, Barend du Plessis is not one, whether those who appeared here told you the full story or lied to you. That is what you've got to decide.
What you've got to look at, Mr Chairman, with respect, is not what could have happened in the portals of power at that stage, because this document will not help you in that regard. The only evidence you are likely to find ever as far as this Security Branch is concerned, is the evidence, first of all the affidavit of Mr Snyman and his evidence in the Pebco 3 application, where he gave evidence under oath, when his state of health was still such that he could do it, about the discussion that he had with Louis Le Grange. Now, whether or not the discussion with Louis Le Grange can be drawn back to the State Security Council meeting a year earlier or so, once again I don't know and it doesn't matter. But Mr Chairman, it is for that reason that, in our submission, that this document does not take the matter any further and you do not need it to make the decision, or to review the decision that you have already made.
What we do say, however, is one should be perhaps cautious, also if we then have got to look just at this document and look at its relevance. This document lists the then Minister of Education, Barend du Plessis, just bear with me Mr Chairman, as stating that the whole situation and that is at, well it's on the second - these secret things don't seem to have page numbers, but in any ...(intervention)
JUDGE PILLAY: There's a lot of things that it doesn't have.
MR BOOYENS: Including full details. It's on the second page of the document, item 5, Agenda item 4, they deal with the question of the unrest in the black schools and there's a reference to certain information that Groenewald gave and then there's the reference that my learned friend's been referred to, but at the end of the day, the decision of the State Security Council in this regard and now we must look at the document as it stands, the decision of the State Security Council makes no mention of Mr Goniwe or the suggestion, call it what you like, by Mr du Plessis that they should be removed.
In the evidence of Gen van Rensburg and let me make it clear here, Mr Chairman, I do not represent in this matter the members of the former Cabinet, but I think this Commission should also perhaps be aware of all the facts before it makes a decision. In the evidence of van Rensburg, there is evidence that Mr Biko was detained and I'm not sure whether it was in terms of the emergency regulations, because I think that was when the state of emergency had been announced, or whether he was detained in terms of the Security legislation, but he was detained in date sometime during 1984, in any case. Perhaps the Committee should be cautious before we decide that the "verwyder" and stretch it to the "permanent uit die samelewing verwyder" that we have heard on an earlier, another occasion, once again we now just have to look at the document. We can't go beyond it. So Mr Chairman, in all the circumstances and in light, in any case of the fact that the Committee has already made its decision, the question is simply this, can this information in any way influence the decision that this Committee must make? That decision is simply, do they get amnesty or not? I submit he doesn't. For that reason I submit that the suggestion by my learned friend would be an unnecessary exercise and would bring this Committee not one bit closer to the truth. You've got as close to the truth, or the untruth, as you will ever get. I do not know what happened in the portals of power, but there is no direct evidence and no indication that if what we read in this Minute is a decision by the State Security and I say it's not, whether it was in fact communicated to the Security Branch or to Craig Williamson, because what we do know also from the record, is that van Jaarsveld says that he reported that to Craig Williamson, that the man cannot be killed in Cradock and I don't know - have I given you that passage, Mr Chairman? I don't think I have. That appears at page 210 of the record:
"So the following morning we drove back to Pretoria and gave feedback. I think Bouwer was present. They gave this feedback to Williamson. I recommended that Goniwe could not be taken out at
this house because there were too many people in the vicinity. It made the process problematic, etcetera, etcetera"
It appears at page 210.
Mr Chairman, Members of the Committee, those are my submissions. I think the time has arrived to draw a line under the amnesty application in the death of Mr Goniwe. I think the time has arrived for this Committee to take it's decision. I do not think that, interesting as the exercise might be, to find out who were the hawks and who were the doves in the previous Cabinet and what did they really decide, if anything, it's not going to help this Committee one bit. Unless there is something specific which the Committee would like to hear me on, those are my submissions.
JUDGE PILLAY: Thank you, Mr Booyens. Mr Bizos have you got any reply?
MR BIZOS IN REPLY: Yes, ...(indistinct - mike not on) those that I must raise in reply, Mr Chairman. My learned friend says that I was wrong in referring to Mr van Jaarsveld as having been an employee of the State Security Council. May I read the last sentence of his application for amnesty, which reads as follows
"I was from 1/9/81 involved with the SSVA and I
know how the procedures worked. Gen van Rensburg was a member of the State Security Council. Although he was a retired military General, he was in service of the South African Police. A P Stemmet was second in Command of the State Security Council."
JUDGE PILLAY: What page of the record is that?
MR BIZOS: ...(indistinct - mike not on) Page 214 of the record he said the following
"An operation such as this would be sent to the highest level of the structure. That would be the Cabinet and State Security Council level. It had to be cleared out there. It would then be the members of the State Security Council who knew about it."
As far as my learned friend's query as to what the position of Maj Craig Williamson was, there is clear evidence at page 205 of the record, where it is stated that Mr Craig Williamson was the head of the South African Police Security Branch Intelligence Unit, stationed at the Security Head Quarters in Pretoria. The question of the submissions that I made to the Committee in relation to an attempt to put in an affidavit by Col Erasmus, which is quoted on page 2 of the Heads of Argument, fails to take an account of a number of factors.
Firstly the issue before the Committee at the time was not a prima facie situation. It was an order to make a decision on the facts and the objection, I submit, was well-founded because you cannot rely on an affidavit on disputed evidence by affidavit an order to contradict direct viva voce evidence when the witness is available to give evidence. It's an elementary rule of evidence. In relation to prima facie matters, the practice is invariable, that you start off with an affidavit, you do not if you want to re-open a case say hear the evidence, the viva voce evidence, you say I have information that so and so will give evidence to this effect and you then have to prove that it is correct. If you only have to say that if it is credible on paper, it may well be accepted after the person has given viva voce evidence, so the parallel, we submit, is completely misplaced.
In so far as the case of, in his Heads of Argument is concerned, referred to on page 4, there is a difference between the re-opening of a case in which a decision has been given and an application to re-open a case before a Judgment has been given. There is an even further consideration and that is that this is an investigative tribunal which seeks information relying on the rules of evidence, in so far as it is possible, in order to ascertain what happened. The Appellate Division Case in Wymer's case, has no application in this situation whatsoever.
I have not understood counsel for the person seeking amnesty to even suggest that the minute of the Security Council is not a genuine document. He has not answered the submission that we have made that documents in a similar format were put in by him and were put in by us because they were being put to witnesses that were called. This is what we are seeking to do here. We are seeking the witnesses to be brought here so that we can put the document to them. I may say, with respect Mr Chairman, that the fact that there has been a change of government, that does not necessarily mean that any privilege that may attach to a document loses its nature, but that sort of document privilege has got to be claimed by the present State functionary in charge of the Department. Practically I wish my learned friend the best of British luck if he approaches anyone, the present head of government, to embargo this document from any court.
Secondly the fact that it is marked "geheim" has no bearing on the matter. The document speaks for itself. If its prominence and authenticity are not challenged, we are entitled to put it to witnesses who, on the fact of it, on the evidence of Mr van Jaarsveld, the decision would of necessity have been taken at the highest level. The persons concerned are at the highest level. There is a minute which suggests that they had made the decision. We are entitled, Mr Chairman, to the re-opening of this subject only to the qualification that we have mentioned, that our case is only partly affected by the fact that, if there was a decision in our favour, then it may be allowed to stand, but certainly we submit that if it was adverse to us, we should be given an opportunity to lead this further evidence in order to persuade you that the applicants have not made full disclosure and we ask that the persons mentioned, particularly those four or five that we have identified in this first instance, it may well be that at the hearing other things may transpire in which there may be a limitation or an expansion, who knows? So that it doesn't have to be a final decision in relation to those matters. We ask for an order accordingly, Mr Chairman.
JUDGE PILLAY: I'm going to take the unusual step, this being an unusual application, of allowing the Members of my Panel to direct questions to both of you as the case may be. Is that okay Mr Booyens, if they do? Dr Tsotsi, have you got any questions? It seems none of us have any questions. We will reserve decision in this application and hopefully we will be able to render one in the near future and then we can take things from there. This hearing is adjourned.
HEARING ADJOURNED
