CHAIRPERSON: We are about to start the proceedings. For the record today is Monday the 25th of January 1999. This is a session of the Amnesty Committee hearing an application for amnesty by Mr Michael Bellingan.
The presiding panel is myself, Denzil Potgieter. I am assisted by Advocates Bosman and Gcabashe.
Perhaps you should deal with the various legal representatives. First for the applicant, I believe it is Mr du Plessis. Can you put yourself on record.
MR DU PLESSIS: Yes. I am Roelof du Plessis from the Pretoria Bar appearing for Mr Bellingan, the applicant, instructed by the firm Strydom Britz Attorneys. Just to my left if Mr Britz of the firm, and just next to Mr Bellingan is Mr Nolte of the same firm.
CHAIRPERSON: Thank you Mr du Plessis.
For the family of the deceased?
MR TRENGOVE: May it please the Commission. My learned friends Mr Rautenbach and Mr Hulley and I appear for the mother and brother of the deceased, Mrs Janine Bellingan. We are instructed by Ms Miriam Wheeldon of the Legal Resources Centre.
CHAIRPERSON: Thank you Mr Trengove.
Then the National Union of Metal Workers of South Africa, Numsa, is also represented at the hearing. Mr Nott.
MR NOTT: That is correct Mr Chairman, honourable Committee. My name is Greg Nott of the firm Bell Dewar and Hall. Alongside me is my colleague, Kabelo Lengane, also of Bell Dewar and Hall and we represent, as you correctly pointed out, Numsa, National Union of Metal Workers of South Africa.
CHAIRPERSON: Thank you Mr Nott.
Then there are various persons with an interest in these proceedings and they are also being represented. I believe that Mr Wagener appears for some of the interested parties. Perhaps Mr Wagener you can put yourself on record first.
MR WAGENER: Thank you Mr Chairman. I am Jan Wagener. I represent certain individuals who have received notices in terms of Section 29 and have been implicated in these proceedings. Their names are Mr A Oosthuizen; Mr J B Taylor; Mr G N Erasmus; Mr D A Els; and Mr J V van der Merwe.
Thank you.
CHAIRPERSON: Thank you Mr Wagener. Then there is representation, I believe, for Mr Horak.
MR STOCKWELL: That is correct Mr Chairman. The name is Stockwell, from the Johannesburg Bar, on instructions of Attorney Joubert Scholtz Incorporated. I will be appearing for Mr Horak.
CHAIRPERSON: Thank you Mr Stockwell. Can I just ask -are there any other interested parties who are represented who need to go on record? The Women's Alliance - perhaps you should put yourself on record.
MS COMBRINCK: Thank you Mr Chair. My name is Helene Combrinck. I am a senior legal researcher at the Community Law Centre at the University of the Western Cape. I respect the Justice for Women Alliance and the Regional Western Cape network on Violence Against Women. I have been working with Miss Liezl Gernholtz from the Commission on Gender Equality who is present here today although she has not joined me here at the panel. Thank you.
CHAIRPERSON: Thank you Ms Combrinck. I think that takes care of the interested parties. And just for the Commission, Mr Chaskalson.
MR CHASKALSON: My name is Jerome Chaskalson and I here as Evidence Leader on behalf of the Commission.
CHAIRPERSON: Thank you.
Mr du Plessis we have two of the incidents that your client applied for placed before us, but there is another, a third application, which really relates to the two which are before us. What is your client's position with regard to that because it appears as if it makes sense to include that in this hearing as well?
MR DU PLESSIS: Yes Mr Chairman I believe that is Schedule 21 which you will find on paginated page 463 of the bundle. That relates to actions after Janine Bellingan's murder. It was raised by Mr Trengove this morning and I am in agreement with him that it is relevant to a full picture of the whole incident and we have no objection against dealing with that application as well. I will be able to deal with it in evidence and I think it is prudent to deal with that Mr Chairman.
CHAIRPERSON: That would be the "Acts, Omissions or Offences" as stipulated on paginated page 463 "defeating the course of justice; perjury; all competent verdicts, all delicts appearing from the facts; all other offences appearing from the facts"?
MR DU PLESSIS: That is correct Mr Chairman, that's right.
CHAIRPERSON: Thank you Mr du Plessis. The one issue that we would like to deal with upfront is in respect of the locus standi of your client, clients, Ms Combrinck, so perhaps we should proceed to deal with that issue and we could take your representations, submissions on that and then proceed with the rest.
MS COMBRINCK ADDRESSES COMMITTEE: Thank you Mr Chair. I can just point out at the outset that we have prepared oral argument. We will be in a position to provide the Committee with written argument if called upon to do so.
Our representation today argues for the two organisations mentioned earlier, the Justice for Women Alliance and the Western Cape regional network on Violence Against Women, to be admitted or recognised as an interested party as contemplated under Section 19(4)(A & B) of the Promotion of National Unity and Reconciliation Act 34 of 1995 which I will subsequently refer to as the TRC Act.
I would like to point out in limine that our application is strictly limited to the aspect of the applicant's application dealing with the murder of Janine Bellingan. We will not be referring to any of the other aspects of his application.
By means of introduction I would like to point out that since the TRC Act does not specifically define a person having an interest in the application, or an interested party it is necessary to find guidance in the interpretation of the phrase elsewhere. We need to look at the wording of the Act itself; we need to look at locus standi in judicial proceedings in a general sense, and having said that I want to make it very clear that we fully acknowledge that the proceedings of this Committee cannot in any sense be termed "judicial proceedings" and that this Committee is not a court.
We also look at the rules around the admission of an amicus curiae in the Constitutional Court believing that provides some guidance; and we look at the experience of an international criminal tribunal around the admission of an amicus.
As another starting point I would like to also point out to the Committee that, because of the nature of the proceedings, the Committee has a far broader capacity to allow evidence as is apparent from the TRC Act, but also to determine the nature of the proceedings or the process. Therefore I think one should apply these provisions that I have referred to by analogy while bearing in mind that we are looking at a far broader discretion than one would look at in the case of a court or judicial proceedings.
With the permission of the Committee I will briefly set out the particulars of the submission of these two organisations or alliances.
The Justice for Women Alliance and the regional network on Violence Against Women, the Western Cape network, jointly represents a coalition of approximately 60 organisations and individuals who work in the areas of women's rights and violence against women.
The Justice for Women Alliance specifically seeks to assist women where the criminal justice system has failed them, failed to protect them from violence, domestic violence specifically, and as a result they have been killed by their partners. The member organisations conduct research on domestic violence and intimate femicide; monitor criminal trials relating to intimate femicide and perform lobbying and advocacy work around this.
The Western Cape regional network on Violence Against Women brings together organisations and individuals who work in the areas of service provision, for instance counselling legal advice to victims of violence against women; it conducts research on the nature and effects of domestic violence, sexual assault and other forms of violence and also engages in lobbying and advocacy work.
I think it is clear from this that this alliance, the Justice for Women's Alliance and the Western Cape regional network represent considerable resources of expertise, specifically in the areas of domestic violence and intimate femicide based on in-depth local research and the provision of services to victims. We believe that we are in a unique position to assist the Committee by means of expert evidence and oral and written submissions to reach a decision on the nature of the murder of the deceased in this matter.
The high prevalence of domestic violence and intimate femicide is a matter of public record. This is specifically in South Africa, and it has been acknowledged, both by the South African Government and internationally that violence against women is a source of extreme concern.
In the light of the entrenchment of the right to freedom from violence in Section 12(1)(C) of the '96 Constitution I think it is clearly demonstrable that the issue before the Committee today is not only in the interests of women who are subject to violence, domestic violence generally, but also in a broader public interest.
Now I think one also has to bear in mind that the function of this Committee today is to act in the public interest in terms of hearing this amnesty application.
The position of the Justice for Women Alliance and the Western Cape network is that the applicant did not act with a political objective, as contemplated in Section 21 of the Act and we thus align ourselves with the submission on behalf of the family of the deceased in opposing the application for amnesty in relation to the murder.
We bring a different focus to these proceedings, however, in a sense that we wish to specifically emphasise the history of domestic violence perpetrated by the applicant on the deceased. In order to deal with this we will apply for leave to question the applicant on issues relevant to our submission; to present expert evidence on the specific characteristics of domestic violence and intimate femicide, and we will also analyse the events leading up to the murder from a specific expert point of view.
We acknowledge that this hearing has been scheduled for this week, from the 21st to the 29th, and although we have not had full access to all the documents pertaining to the application, we are in a position to proceed and we do not foresee that our participation will unduly protract these proceedings. Given the limited focus of our participation and the fact that we will be in a position to rely on evidence presented by other parties we feel that we will not unduly present prejudice to the applicant.
If the Committee will allow me to do so I will very briefly deal with the relevant provisions of the TRC Act; the provisions relating to an interested party, and here I wish to refer the Committee to Section 19(4)(A & B) which provide for -
"The notification of the applicant and any victim or persons implicated or..
and here I would like to emphasise -
"having an interest in the application, to be informed of the particulars of the hearing and also to be informed of their rights to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration".
Now as I have said earlier it is not entirely clear from, for instance, the definition section, what an interested party would be. I think if one looks at the definition of "victim", which also includes the family of a victim or deceased, it clearly goes beyond that. So one has to acknowledge that what the legislature had in mind here is a separate, independent category of interested parties or interested persons. Once again because of the fact that interested party is enumerated separate from a person implicated, it is clear that this concept also goes beyond implicated persons.
Now if we look at the fact that "interest" can be defined as "a personal concern, sympathy, something in which one has a personal concern", I think it is quite clear, given the nature of the organisations represented by the two Alliances, and also the nature of the application in relation to the murder, that there is a very clear interest or concern and that therefore we comply with the definition, and I use that term guardedly, of an interested party in Section 94.
If I could perhaps move on to the provisions of the Constitution, and here I have to very specifically point out that I am arguing by analogy only because Section 38 of the Constitution '96 provides for locus standi in terms of court proceedings. So here one has to proceed with some caution. And in terms of Section 38 -
"The persons who may approach a court alleging that a right in the Bill of Rights has been infringed or threatened include the following:"
I will not enumerate the whole list, I will merely refer to subsection 38(C & D):
"Anyone acting as a member of, or in the interest of a group or class of persons or anyone acting in the public interest".
Now it's been made very clear in judicial precedent that this provision of Section 38, which is preceded by Section 7(4) of the Interim Constitution, quite significantly broadens the rules around locus standi that we received from the common law. Although what is required is that the violation or threatened violation of a right should be demonstrated, the Constitution and its subsequent interpretation makes it very clear that we are now looking at a very liberalised notion of legal standing. And if one looks once again at the nature of the proceedings, the nature of the organisation, I think we can once again clearly demonstrate that these organisations are acting in a narrow sense in the interests of women who are subjected to domestic violence, who are the victims of intimate femicide, thus complying by analogy to Section 38(C) and the question of public interest is also very clear in terms of Section 38(D).
That basically leaves us with the conclusion that given the fact that there is a clear violation of a right in the Bill of Rights, i.e. the rights to security, very specifically the right to freedom from violence, that if one were to apply Section 38 of the Constitution we would, if we were to approach a court in this regard, be able to argue for standing.
I will very briefly refer to the common law because I think the point that one wants to make about the common law is that it has become very clear that although the common law under very narrow circumstances allowed for an action on behalf of a group or class of persons it is then acknowledged in South African law, and elsewhere, that this narrow view has to be extended, and I can perhaps just briefly refer the Committee to a dictum by an English court, the Queen's Bench, saying that in regard of the locus standi of Greenpeace, in a matter of environment concern -
"This organisation with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology, not to mention law, is able to mount a carefully selected, focused, relevant and well-argued challenge".
And once again I would enjoin the Committee to apply this line of thinking by analogy.
If one looks at the rules that have been prepared for the Constitutional Court in terms of the relevant legislation Rule no.9 specifically deals with submissions by amicus curiae and there are basically two ways in which an amicus curiae can be allowed to hearings before the Constitutional Court. The one in terms of Rule 9(1) is by written consent of all the parties. In terms of Rule 9(4), if the written consent of the parties could not be obtained it is possible for the President to allow the submission or admission of a party as an amicus. The President may also determine the terms and conditions of the admission and the rights and priviliges of the amicus.
Rule 9(6) specifically sets out the requirements -
"An amicus in its application must briefly describe the interest of the amicus; identify the position to be adopted by the amicus; set out the submissions to be advanced; the relevance to the proceedings; the reasons for believing that the submissions will be useful to the Court; and how it will be different from those of other parties".
With respect to the Committee I believe that we have done so earlier in our submission. And once again if we apply these rules by analogy I think we have clearly demonstrated our interest.
Now as a last point I would just like to refer very briefly to a recent experience in the International Criminal Tribunal for Rwanda. The rules of evidence and procedure for the International Criminal Tribunal Rule 74 allows for the admission of State organisation or person as an amicus if it considers it desirable for the proper determination of the case.
In a recent trial, the trial against Jean Paul Akayesu(?) who was charged with several violations, several human rights violations, a coalition of women's rights organisations that specifically address the position of women in armed conflict, approached the Tribunal for leave to present an amicus brief relating to an extension of the indictment against Akayesu to also include sexual violence. Significantly this coalition was admitted in terms of Rule 74 and the eventual conviction of Akayesu was, among others, based on this amended indictment to also include sexual violence.
I will not go into this in more detail. I recognise fully that of course the Amnesty Committee is not a criminal tribunal in any sense of the word, but I think, once again by analogy, that this is a fairly or persuasive precedent.
To conclude I think that we have clearly demonstrated our interest. We believe that our submission is relevant. That we can assist the Committee by means of the expert evidence that we have available. We do not believe that our participation will work to the detriment or the prejudice of the applicant in any way; and we believe that our participation or recognition as an interested party is desirable for the proper determination of this amnesty application.
If there are any specific aspects which you would wish me to address I would be happy to do so.
CHAIRPERSON: Ms Combrinck would it be correct to say that your clients' opposition might also relate to the question of a full disclosure in this matter?
MS COMBRINCK: I believe that to some extent it would relate to the question of full disclosure. However, we are not going to address it primarily under the issue of full disclosure. We are going to focus on the nature of the act, arguing that this was not an act performed with a political objective. We do, however, support the family of the deceased in its submission that the applicant is not making full disclosure, but we are not going to focus on that in terms of our submission or our examination of the applicant.
CHAIRPERSON: Now in respect of the question whether the participation of your clients would add anything different to the proceedings from what could possibly be placed before this panel by parties who seem to have a less problematic, clearer right, if I put it that way, of participating. Now just referring to that particular issue is there any prejudice that any interested party would suffer if you were not allowed to participate independently in these proceedings instead of making the expertise and the experience of your clients available, either to one or more of the parties, or even to the panel, at the request of the panel, would we be losing out on any relevant material?
In other words can the case that your clients want to put to us only be properly put before us by independent and separate participation in these proceedings, or can they be put to us by some other means?
MS COMBRINCK: I think that it certainly would to some extent be possible to present some of the evidence in another way. For instance through making the witness available to one of the other parties. But I think for us that certainly would be the second prize in the sense that for instance around examination of witnesses, if we are not allowed to examine on our own behalf one would have the rather undesirable situation of the group representing my client, sitting with whoever is doing the examination and providing that person with information, practically speaking, passing on of notes, perhaps adjourning here and there for deliberations and obviously working in this secondhand way is not desirable. So certainly we are more than prepared to make our assistance available to allow the Committee to come to the appropriate decision.
We just believe, also in terms of perhaps protracting the proceedings that allowing us, or recognising us as an interested party will actually be the most direct and the most expedient way of dealing with this matter.
CHAIRPERSON: Yes, because the question is predicated entirely on the practicalities of this process. It is a process that has been and is being conducted under considerable time constraints. It is unique in various ways. You have indicated that we seem to have the authority to decide the procedure and so forth and so on.
So just from the point of view of practicality where interested parties seem to be quite well represented as on the face it it appears in this case, the family of the deceased are represented by eminent legal representatives, where the Committee, the Amnesty Committee has its leader of evidence available to deal with the matter and to be of assistance to the Panel in deciding this matter, on the face of it it appears as if it's not the kind of case where something would be lost along the way it seems to me, on the face of it, if the input and the assistance that your clients can give does not come to us in the form of direct participation in these proceedings, just as I say, practically speaking it appears that that is certainly one way of dealing with getting that assistance which clearly seems to be inherent in your clients' participation in these proceedings.
So I am entirely looking at it from that sort of perspective, but of course I am alert to the fact that you know somebody could suffer some prejudice or we could lose something out, so that's the basis upon which I am raising this with you, just from the point of view of practicalities.
ADV BOSMAN: If I can just take that a bit further, with your permission Chairperson, if we were to allow your application Ms Combrinck, then surely one would have to argue that the Amnesty Committee is obliged to give notice, because it's peremptory, the Committee shall then give notice to any person who has an interest in the application, might that not open the flood gates to all kinds of NGOs who might want to come and offer their expertise and then independently represent the particular NGO or interest group here at the Amnesty Committee hearings? What I - I am not saying that your expertise could not be used and should not be used, but I am also talking about a process. Shouldn't it rather be presented through other interested parties with a more direct interest or immediate interest instead of opening the flood gates for...
Just for example, it's perhaps a little far-fetched, an NGO coming here and saying in terms of this provision the Amnesty Committee should have notified us of the hearing and we are entitled to be present and we are therefore asking for the hearing to then be postponed. Would that not be a possible result?
MS COMBRINCK: If I could perhaps address the concern raised by the Chairperson first of all with your leave.
We are very acutely aware of the time constraints and for that reason we wish to actually limit our participation as far as possible. The leave that we have asked to participate is defined very specifically or is curtailed very specifically and that has been done specifically with the aim of bearing time constraints in mind.
As far as the second concern is concerned, I think that one has to bear in mind that we are not talking about an NGO or group of organisations having a very broad and very vague interest in the matter. We do represent individuals and organisations who have done research on intimate femicide and to my knowledge this is the only research project in South Africa, up-to-date, on intimate femicide. So I don't think that in the sense of the flood gate concern that we are as broad a grouping as one would perhaps look at under that argument.
Yes it is possibly so that an interested party in the form of an NGO could approach the Amnesty Committee, but obviously that NGO would have to show an interest of some form before being able to claim that that notice was not given and obviously the whole question of time constraints will weigh there as well.
I think it's important to bear in mind that this is a unique application, and I think the possibility of these circumstances arising in another matter before the Amnesty Committee, that possibility is a fairly limited one. I think one has to perhaps also focus on these particular proceedings to see what we can bring to the application as an interested party and perhaps undertake to be aware of opening certain possibilities. I don't think, however, that that precludes the admission in this particular instance given the unique nature of the situation.
ADV BOSMAN: But is your argument then that you are entitled to represent your organisation here? Or are you arguing that the Amnesty Committee has a discretion to allow you locus standi?
MS COMBRINCK: I think the Amnesty Committee has a discretion in determining whether or not there is an interest. We certainly argue that we have an interest and therefore should be allowed, but ultimately obviously it is a question of discretion on the part of the Amnesty Committee.
CHAIRPERSON: Is there any other thing that you want to add?
MS COMBRINCK: No, thank you Mr Chair.
CHAIRPERSON: Thank you. Mr du Plessis?
MR DU PLESSIS ADDRESSES THE COMMITTEE: Thank you Mr Chairman.
I would like to respond to that. Mr Chairman, in my submission the answer is a simple one and one only has to have regards to the provisions in the Act to realise that one has to find the answer there, look for the answer there and the answer is there. Section 19(4) of the Act is the section my learned friend relies upon and Section 19(4)(A) provides that:
"An applicant, any victim or person implicated or having an interest in the application shall be advised of the place where and the time when the application will be heard and considered".
So this only deals with the question of notification.
Then it states further:
"Inform the persons referred to in paragraph (A) of their right to be present at the hearing and to testify, adduce evidence, submit any article to be taken into consideration".
That deals with testimony and adduce evidence.
Now one has to read that section, Mr Chairman, together with the sections in Chapter 6 of the Act, providing for the procedure to be followed at a hearing, and in this regard I wish to refer you specifically to Section 30 thereof, subsection (2). Subsection (2) makes provision for the following. It states that -
"During any investigation by, or any hearing before the Commission any person is implicated in a manner which may be to his or her detriment, or the Commission contemplates making a decision which may be to the detriment of a person who has been so implicated, it appears that any person may be a victim, the Commission shall, if such person is available, afford him or her an opportunity to submit representations to the Commission within a specified time with regard to the matter under consideration or to give evidence at a hearing of the Commission".
In my submission Mr Chairman, this section, Section 30(2) should be read together with Section 19(4), and the obvious conclusion which one has to draw from Section 30(2) is the fact that only the persons stipulated in Section 30(2) would be allowed to make representations to the Commission, obviously also the applicant, in respect of any hearing. Now that is any person who is implicated in a manner which may be to his detriment, or where the Commission contemplates making a decision which may be to the detriment of such a person, or it appears that any person may be a victim. Now that clearly draws the line of where people are entitled to submit representations to the Commission.
In my submission this is a section that curtails the broad interpretation which one can place on Section 19(4). And one also has to take into account that Section 19(4) only deals with the question of notification, whereas Section 30 deals with the procedure at the hearing. Section 32 states who can appear, who can give evidence and who can give representation.
Now in my submission no women's organisation, such as those represented by my learned friend, falls under any of these categories. They are not implicated in a manner which may be to their detriment; no decision will be to the detriment of any such organisation. It doesn't even refer to organisations, it refers to a person and they are not affected.
Apart from that, if one considers the practical implications of allowing such organisations to be represented at Truth Commission hearings it could lead to a scenario where we are going to have amnesty applications until the year 2010. I have quickly jotted down a few organisations which have come to mind very quickly who may or may not in other applications possibly have interests. I was thinking specifically of organisations against domestic violence; organisations against the use of weapons, or the possession of weapons; organisations against crime; anti-apartheid organisations, because each and every application of, especially security policemen, deal with apartheid issues; human rights organisations, because these hearings relate to gross abuses of human rights, and human rights organisations, if one allows the flood gates to open it could mean all sorts of international organisations arriving here saying that they want to make representations and they want to be heard.
There is one application which did not lead to a specific hearing but which was an application of one of my other clients, two of my other clients, Captain Hechter and Warrant Officer Paul van Vuuren which was specifically directed against a person who was a homosexual, and in that application specifically such organisations, Gay and Lesbian organisations may want to represent their case.
I was thinking further of all political parties involved in the struggle, where does it end? Parties involved or affiliated to Communist ideology, because evidence has been given over and over again about the struggle against Communism. Parties advocating or fighting against the use of children in war situations, there are such organisations. I have read in the press lately about such organisations. And evidence has been given before the Truth Commission previously of minors and children being used in certain situations. Post traumatic stress, organisations which have an interest in post-traumatic stress. Mr Chairman I can go on. This was just jotted down in five minutes time. Now if we open the floodgates in respect of such interest groups where is this going to end?
At the end of the day Mr Chairman if this representation is allowed here it is going to lead to a wholly unsatisfactory situation in the future.
Mr Chairman in respect of the question of giving notice Mrs Bosman made the point very clearly which was a point that I wanted to raise as well, is that such organisations may then come and argue that they should have received notice. Who do you give notice to and who don't you give notice to? And that could conceivably lead to all sorts of postponements of trials. That's just on a practical note.
Then in respect of the Constitutional issues, this is not a hearing where specific constitutional issues are raised or dealt with. This hearing does not deal with constitutional rights at this point in time in a constitutional way, although it deals with gross abuse of human rights, and I do not believe that the section in the Constitution, that my learned friend relies on, in my submission it does not give a broadened locus standi in these proceedings as it would in court.
Then what is of great concern, Mr Chairman, is the fact that this organisation does not come here simply to take part objectively in these proceedings. Clearly they are not interested in hearing the applicant's side of the situation. They have aligned themselves with the family and their opposition to this application which, in my submission Mr Chairman, makes their application to be an interested party somewhat more dubious. If they had arrived here and said we are completely objective, we want to hear both sides of the story; we want to present our limited view on the question that we want to deal with, it may have been a different story. But clearly they have aligned themselves already before even the start of the evidence in this matter, before even hearing any evidence in this matter. I do not know if they have perused the amnesty application or any of the documents relevant to this application. It just seems to me, Mr Chairman, if it is allowed for a party to oppose an application to come and say that such a party has an interest that is as far-reaching as this we may end up eventually with applicants being opposed by 10, 15 different opposing parties all claiming the right to cross-examine this poor applicant for days on end without any basis whatsoever.
On that basis, Mr Chairman, we say that this group should not be allowed, as an interested party, to these proceedings.
I want to say, however, something, and that is on the instructions of my client and my attorney and it also conveys my own personal view on this, and that is that we have a lot of respect for the work that such organisations are doing. We do not for one instance say that we want them excluded from proceedings because we do not think that they do good work. We have a lot of respect for that and a lot of appreciation for that, and that is not a reason why we oppose the participation of these groups in these proceedings.
Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr du Plessis. Mr Trengove do you have any submission?
MR TRENGOVE ADDRESSES: Yes, may I briefly make a few submissions. We strongly support the application for intervention.
My learned friend referred to two provisions of the Act. Those provisions say no more than that certain people are entitled, as of right, to be given notice and to make representations. They are completely silent on the question we are addressing this morning, and that is whether you have a discretion to admit other participants in these hearings as well. We submit that you do enjoy a wide discretion to admit whomever is able to make a useful contribution to your task of finding the truth about these events.
My learned raises what is really a floodgates argument, if this amicus were allowed what floodgates might it open and what lobby groups, political parties and the like might then in future have to be admitted. The submission is not that the amicus is entitled as of right to appear. The submission is that you have a discretion, and for as long as you have a discretion there is no floodgates risk. You won't admit people whose participation will not be useful to your deliberation and your investigation. So that you clearly have a discretion. So that you clearly have a discretion.
The question then is whether that discretion should be exercised or how it should be exercised in this case. Let me make it quite clear that the pillar, one of the main pillars of the applicant's case is that he murdered out of a lofty sense of patriotism and duty. We deny that that was so. We submit that the explanation for the murder is to be found not in his patriotism but at least, in part, in his abusive relationship with the deceased over a number of years, a relationship within which he acted like a bully and a thug, which ultimately led to the murder. And that the true explanation is to be found, at least in part, in his conduct in that relationship.
We, however, don't have the expertise that the amicus has to investigate that possibility. We have not prepared the case from an expert perspective to present that possibility before you as a phenomenon well-known within abusive domestic relationships. If the amicus were allowed you will be presented with that case by an expert interest group and to the extent that that aspect will then be handled by the experts we will significantly curtail our participation on that issue and will barely deal with it at all because we will have the comfort of knowing that it is being dealt with by experts.
If, however, the amicus were not allowed then we will simply have to do the best we can which would mean hurriedly work up the case and try to conduct it as best we can. The outcome will be not any curtailment of the proceedings but simply that the same case will then be run, not by experts, but by lay people who will at best be able to present a mediocre rather than an expert case on that issue.
We submit that when you exercise your discretion there are really only two considerations. The one is, can the amicus make a contribution on the one hand, and on the other to what extent will their participation delay the proceedings which obviously have to be completed with expediency, and you balance those two factors and you come to a conclusion as to whether in this case the one outweighs the other or not.
In striking that balance we submit that it is also important to bear in mind that it is not an all or nothing order that you are asked to make. You have the power to curtail cross-examination. You have the power to curtail the calling of evidence so that to admit the interest group does not mean to allow them free rein to cross-examine as they wish and to lead whatever evidence they wish. It means simply that you have them present to provide you with their expert assistance but subject to your direction and they can be kept on a tight rein if needs be, if it appears that their participation isn't as useful as you had hoped it to be.
We submit that in the circumstances of this case there is no doubt that you should exercise your discretion in their favour. There will not be any prejudice or inconvenience because if they are not allowed to run the case we would simply have to do it as best we can. Admitting them participation would mean that you would have the same case presented by experts rather than mediocre lay people. If you have any doubt bear in mind that you can control their participation as the hearing goes on.
We would submit, therefore, that you should exercise your discretion in their favour.
CHAIRPERSON: Thank you Mr Trengove. Mr Nott I suppose you are not really directly affected, but if you have a submission certainly you are free to go ahead.
MR NOTT: We are directly affected Mr Chairman, but save to say that we endorse and support the interested group's platform and endorse and echo the words of my learned colleague, Mr Trengove, in support of the interest group.
MR DU PLESSIS: Mr Chairman may I be afforded - there is one point that I haven't made, may I be afforded the opportunity just to make that point?
CHAIRPERSON: Yes, alright.
MR DU PLESSIS: And that is a question that has arisen now which I have only thought about now.
CHAIRPERSON: Yes, please go ahead.
MR DU PLESSIS: Thank you Mr Chairman. The question to be considered by the Committee in my submission is if the Women's Group was intended simply to raise issues pertaining to domestic violence against women and situations surrounding that and violence on women per se, then the question arises why they did not want to make representations in respect of the amnesty applications relating to the deaths of Florence Ribeiro and Ruth First. I know there is a difference because here we have a husband/wife situation, but if they felt serious about violence on women per se then one would have expected them to have applied to be involved in those hearings too.
Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr du Plessis. I am still going down the line as it were. Mr Chaskalson have you got any submission that you want to make on this issue?
MR CHASKALSON: I believe that the issues have been canvassed before you. I would just like to say that I would also like to support the application. My learned colleague Advocate Trengove has set out very clearly reasons why this should be allowed.
In response to my friend Advocate du Plessis' comments now I believe the situations are not at all analogous. This is a case which is a husband/wife which is squarely within the walls of domestic violence and we have received the concessions from the organisation that they are going to keep a narrow focus. If they had applied in the other two examples cited I would have had no hesitation in objecting to that application.
Thank you.
CHAIRPERSON: Thank you Mr Chaskalson. Mr Stockwell I don't know whether you want to come in.
MR STOCKWELL: We have no submissions.
CHAIRPERSON: Ms Combrinck have you got any reply - or Mr Wagener, sorry, yes I thought I had missed out on somebody.
MR WAGENER ADDRESSES: Thank you Mr Chairman. One point only. I share the concern raised by Advocate Bosman in the sense of the practicalities that may follow in granting this application. By way of example, Mr Chairman, I represent as clients a number of previous Commissioners of Police, a previous Minister of Police, a number of ex-Generals of the South African Police who formed the command structure of the Police and who, I think can be argued, can be seen as experts regarding the political conflict, or at least certain aspects thereof in our country, and therefore by allowing the present application a situation may arise where these clients of mine may approach the Amnesty Committee and demand that in each and every hearing concerning an application by whether a policeman or even a member of the liberation forces, that they be granted a right to be present and to partake, to cross-examine etc.
On the other hand though, Mr Chairman, I accept that Ms Combrinck and her organisation has expert testimony that may be of a big help to us all here, so maybe the problem can be solved by you Mr Chairman as a Committee merely calling upon those witnesses, whoever they are, and let them present their expert evidence here to this Committee and we may all benefit from that.
Thank you.
CHAIRPERSON: Thank you very much Mr Wagener. Yes I think now it is your opportunity.
MS COMBRINCK ADDRESSES: Thank you Mr Chair. I will just respond to three issues.
The first raised by my learned friend Mr du Plessis around the question of Section 30(2) I would like to refer the Committee also to Section 30(1) which deals with the determination of procedure, which states that - "Any Commission and any Committee or sub-Committee shall follow the prescribed procedure or if no procedure has been prescribed or in the absence of such determination the procedure determined by the Committee or sub-Committee as the case may be".
I think this makes it very clear that there is in fact a very broad discretion on the part of the Committee, first of all, and I think we are to a certain extent here dealing with an unprecedented situation and therefore obviously there is no procedure, I think it is up to the Committee to exercise its discretion.
As far as subsection 30(2) is concerned, I think on the face of it it almost presents a contradiction to Section 19(4)(B) specifically, except that if one looks at the language the section deals with the obligations of the Commission. It says -
"That the Commission shall afford these persons an opportunity to submit representations or to lead evidence".
It doesn't say that the Commission or Committee "may". In other words these are the instances where there is an obligation to in effect afford the opportunity, but I don't think that this precludes the prospect of an interested person as read with Section 19(4)(B), to be given an opportunity to participate. Because I think the reading that my learned friend suggests in fact means that there is a direct contradiction between the two sections and certainly that could not have been the case.
19(4)(B) makes it quite clear that all the persons referred to in 19(4)(A) would have, if they are recognised in that capacity, would have the right to be present and to participate. What Section 30(2) says is merely that in relation to a narrow category of these people, in other words victims, applicants and persons implicated they must be given the opportunity. It does certainly not take away any discretion on the part of the Committee to afford them that opportunity. That is why Section 19(4)(B) allows for the right. That in terms of the procedure.
In terms of the notice issue I would just like to point out that one has to bear in mind the specific dynamics operating here. You are not looking at let's say an unsuspecting person who has been implicated and has not received notice and now wishes for a postponement. I think in those cases you will have a situation where the interested, because of their very interest, is aware of the application, has been in some process of preparation and then approached the Committee. I quite frankly think it would be quite silly for an organisation wanting to be recognised as an interested party to come and say, "well I am sorry we would like to be an interested party but you didn't give us notice so give us a postponement". Because obviously in all of these cases time is of the essence. So I don't think that that really presents the spectre of numerous postponements that my learned friend has raised.
In terms of the floodgates argument we are not saying that everybody with a potential interest in human rights violations ranging from the Police Widows and Orphans Fund to the SPCA must be admitted in every single application. We are actually saying that because there is no definition of interested parties we need to look at other indicators. If you look at the Constitution, Section 38(C&D) -
"Member of a particular interest group or acting in the public interest".
Granted that is very wide, but there are certain barriers or bottom line that these organisations would have to comply with.
If you look at the provisions around amicus curiae in the Constitutional Court it is quite clear, you have to demonstrate your interest, show the difference; show how it will contribute and there are certain requirements that have to be met. So even if you look at the example from the International Criminal Tribunal, it is not just any organisation or state or person who can be admitted, the Tribunal has to determine that it is in the interests of the proceedings for this amicus, or it is desirable for the proper determination of the case for the amicus to be admitted. And that is the test that will have to be applied in every single instance. I think that, to a large extent, curtails the floodgates argument.
If I could just deal with the issue of objectivity, I think the whole point of our participation is that based on the expert knowledge that we have available we do take a particular stand. I think that is the whole point about participation.
Just to deal with two last submissions made by my learned friend Mr du Plessis. With respect I cannot quite see how one can deal with violations of human rights except in a constitutional way. I think one has to take notice of the constitutional aspect otherwise you can't really address those issues.
And the question of why we are making an application in this case rather than in any of the other numerous applications where the rights of women were violated I think that Mr du Plessis himself provided the answer to that by saying there is a significance difference here - we are talking about intimate femicide, the husband/wife situation is the difference because that is where our expertise lies and that is what we bring to this application. So with respect I don't think that the situations are comparable in any way.
I think to conclude I just say that we obviously abide by the decision of the Committee. If I may borrow my learned friend Mr Trengove's expression, are a rainbow in your hands. Thank you.
CHAIRPERSON: Thank you Ms Combrinck. We need a bit of time to consider the application and submissions. We will take an adjournment and we will notify you as soon as we are ready to proceed. It shouldn't take us too long. We are adjourned.
COMMITTEE ADJOURNS
ON RESUMPTION
R U L I N G
This is an application on behalf of the Justice for Women Alliance and the Western Cape Network on Violence against Women to participate as interested parties in this amnesty application.
The application raises very important and fundamental issues and it turned out to be more complex than it appeared at first flush. We would have preferred to have had more time to consider the matter and to prepare full reasons for our ruling, but in the light of the practicalities of the matter we are compelled to give a ruling with just brief reasons at this stage.
We have considered the arguments which have been addressed to us on this question and we are persuaded that the participation of the applicants in these proceedings would be of considerable assistance in deciding the application for us. However, in the discretion which we have in deciding an application of this nature we have come to the conclusion that the assistance in question could be substantially given to the panel without, in the particular circumstances of this case, allowing for independent participation or representation of the applicants in these proceedings.
We are in this regard persuaded by the fact that the evidence which appears to be at the disposal of the applicants could be presented to the Panel through one of the parties with a direct interest in this application, or that it could even be obtained through the Panel exercising its inherent powers, or explicit powers in fact, to call witnesses.
So in spite of the fact in the circumstances that we have no doubt in our minds that it would be of particular assistance in this application to obtain the evidence which the two applicants could present to us that given the particular circumstances the application for the applicants to participate independently in these proceedings, has to be refused.
That is the order in the circumstances.
Mr du Plessis there are some other preliminary issues that you had indicated that you would like to deal with so perhaps it is appropriate for you to proceed to deal with those issues at this stage.
MR DU PLESSIS: Thank you Mr Chairman. Mr Chairman may I perhaps, before I deal with that and to make it easier if I refer to documents just deal with the documents which have been placed before you by agreement between the parties from our side.
The one bundle, the thick bundle which has been placed before you is a bundle of documents which the applicant will rely upon when presenting evidence. However, what I have endeavoured to do is to include in this bundle, you will see on page 2 of that bundle the minutes of the pre-trial meeting, that goes until page 8. Then you will see certain questions which have been directed to the applicant by Mr Chaskalson on behalf of the Commission. Then there are answers by Mr Wagener to certain questions directed to his clients by the Commission.
Then you will see on page 17 previous questions directed by Mr Chaskalson to the applicant and the applicant's answers thereto on pages 19-21. These documents have been included in the bundle to make it easier for everybody.
The only document which has by - as the result of mistake by myself not been included in this, is a document with the answers to the questions of the TRC of Mr Chaskalson to the document which starts on page 9. Those answers have been handed to you in a separate small document which I believe you will find with you, which has been handed to you.
CHAIRPERSON: Yes, we have a document with the heading "Answers TRC 26 November 1998", is that the one?
MR DU PLESSIS: Correct, correct, that is the one.
CHAIRPERSON: Yes we do have that.
MR DU PLESSIS: Then Mr Chairman there is another small bundle of documents which are documents which should have formed part of this bundle which didn't which we just compiled in a separate small little bundle. It starts with an affidavit of a certain Mr van der Merwe. My suggestion would be Mr Chairman to make this easier for everybody to number the bundles as exhibits so that we could more easily refer to all the bundles.
Mr Chairman may I suggest the following. There are two bundles of documents compiled by the TRC. The one is a thick bundle and the other one is a thin bundle going from page 477 to 648. Could I suggest that we mark the first thick bundle, Bundle A - that is the application, the bundle containing the application.
CHAIRPERSON: Yes it's already marked Index Bundle 1. So I wonder if we shouldn't just stick to the numbers.
MR DU PLESSIS: Alright, as it pleases you.
CHAIRPERSON: That would be the document which contains pages 1 to 476.
MR DU PLESSIS: Yes.
CHAIRPERSON: C or E, E ja.
MR DU PLESSIS: And then I see the next bundle is marked Bundle 2 so that would be then correct. Then the Bundle 3 Mr Chairman would be the first part of the thick bundle which I handed to you. You will see that consists really of two files. It has the front cover of Strydom Britz and it starts on page 1 with the agenda for the pre-trial conference. That would then be Bundle 3. And there is a second part to it, also with the front cover of Strydom Britz which starts on page 240. It forms part of the same bundle so I think that should remain Bundle 3.
CHAIRPERSON: Yes I wonder. We have them as a separate. It can be Bundle 3. Perhaps we should distinguish between the two. It might turn out to be easier eventually. Shall we call the one ...(intervention)
MR DU PLESSIS: 3.1 and the other one 3.2 Mr Chairman.
CHAIRPERSON: Alright.
MR DU PLESSIS: It would probably be easier.
CHAIRPERSON: 3.1 and 3.2.
MR DU PLESSIS: Yes, as it pleases you Mr Chairman.
And then the small bundle starting with the affidavit of Mr van der Merwe would then be Bundle 4.
ADV BOSMAN: Then the answers to the TRC 26 November, should that be included in one of the bundles and numbered consecutively?
MR DU PLESSIS: Mr Chairman we can either do that or perhaps we should start with exhibits as new documents come in and then that should then be Exhibit A. That would have been my suggestion.
So we would have up to this stage four numbered bundles and then an Exhibit A.
CHAIRPERSON: Very well.
MR DU PLESSIS: Thank you Mr Chairman. May I then proceed to deal with the first point which I would like to raise.
MR TRENGOVE: Mr Chairman may I just perhaps clarify. My learned friend said that these bundles have been placed before you by agreement. The agreement is a very limited one. They tendered the documents in evidence. We said that we had no objection to the documents being placed before you in convenient form, i.e. in those bundles, but we make no further admission with regard to those documents. We admit neither their authenticity nor their admissibility which remains subject to proof.
CHAIRPERSON: Thank you Mr Trengove that has been noted.
MR DU PLESSIS: Thank you Mr Chairman that was the agreement and maybe I didn't express it too clearly.
Mr Chairman then the first point which I would like to deal with relates to Bundle 1 and it relates to the document you find in Bundle 1 from page 1 up to page 22. Mr Chairman you will note that the first page, the Annexure Form 1 is a written document and on page 2, paragraph 9 you will note that (I) was completed by reference to various Acts. You will see that the nature and particulars have been left open and then if you turn right to the last page you will see there only a signature of the applicant. There is no confirmation before a Commissioner of Oaths, not in the one that I have in my possession.
CHAIRPERSON: Have you got a paginated page 7 Mr du Plessis?
MR DU PLESSIS: I am sorry Mr Chairman it doesn't seem like I've got a paginated page - ja oh I am sorry I have it, I have it. Right. And then you will turn to page 8 you will see a document called "Nature and Particulars" until page 13. And then attached to it certain documents until page 22.
Now Mr Chairman I am not sure how to deal with this. I will make my submissions pertaining to this document and if the Committee deems it necessary to deal with this by way of evidence of the applicant then we will be prepared to do so. My instructions in respect of this, Mr Chairman, is that the applicant never signed the document, the typed document from page 8 until page 22. You will also see that from the document it doesn't contain any signatures. This typed document was not attached to the first document completed in writing contained in pages 1 to 6 and in fact the applicant has never seen this typed document until last week when I showed it to him for the first time.
Mr Chairman the applicant has informed me that he has had over the period various lawyers representing him and that he had all sorts of difficulty with his lawyers being threatened inter alia with abduction of their kids and a lot of other threats. He always had the intention to lodge a final completed application with the Commission after having received proper legal assistance, and that could only have been done after my attorney and I agreed to represent the applicant. We compiled the amnesty application which you find from page 23.
Now Mr Chairman my instructions are, furthermore, that a representative of the Commission, Mr Kelberg, visited the applicant on various occasions wanting information from him pertaining to, inter alia, the acts we are concerned with today.
In fact Mr Chairman if I can refer you to Bundle 4, page 9, this is a document which was handed by Mr Kelberg to Mr Bellingan explaining to him exactly what subjects he wanted to discuss with Mr Bellingan and obviously these discussions were meant to go much wider than simply amnesty, but it was for purpose of the duties of the whole Commission. And Mr Bellingan provided Mr Kelberg with various documents during these discussions.
Mr Chairman page 12 of Bundle 1, if I could refer you to that page. About one third from the top of that page you will see that there is a reference to an attorney, Mr Unterhalter, which is spelt completely wrong. My instructions are, from Mr Bellingan, or my instruction is that Mr Bellingan would never have allowed a document such as this to be presented as his amnesty application to the Truth Commission with this kind of mistake.
You will also see on the second line there is a name left out and there are all sorts of other problems with it. Mr Bellingan's attitude at all relevant times, Mr Chairman, was that his application, the written completed document which was signed by him, was a skeleton application and that his application would be completed once he had proper legal assistance. As you know this has been the practice and it has been allowed in various instances by the Commission to amplify applications. And this is what was done Mr Chairman.
So Mr Bellingan is relying, for purposes of his amnesty application, only on the signed document which you find from page 24 and in our submission, Mr Chairman, this Annexure from page 8 to page 22 should not be in this bundle, should not be referred to, was never made under oath and should not prejudice Mr Bellingan.
I wanted to raise this point, Mr Chairman, because it is going to come up at some stage and definitely in cross-examination and I submit, or I wish to request the Committee now to make a ruling pertaining to this document. The document does contain certain contradictions with his formal application. It does contain certain facts which are not true, and it will be highly prejudicial for Mr Bellingan if this document should remain as part of this bundle.
As it pleases you Mr Chairman.
CHAIRPERSON: Mr du Plessis is the application, to get it more explicit, is it to have it struck from the roll, struck from the record, this section from pages 8 to 22?
MR DU PLESSIS: Yes Mr Chairman that is what it entails.
CHAIRPERSON: Mr Trengove have you got any submissions on the application?
MR TRENGOVE: Certainly Mr Commissioner. We oppose the application. Let me make it quite clear at the outset that we accept my learned friend's honesty and integrity which is beyond question. We don't accept his client's instructions though. We will demonstrate to you that he is an inveterate liar and incapable of telling the truth about anything relating to the murder of his wife.
We would submit that there is no justification at all for even attempting to decide the facts behind this document on instructions placed on record by a legal representative. Let the client give the evidence about the history of this document. Let his explanation be tested by cross-examination. And if needs be let us call other witnesses to determine what the truth about this document is.
Not only have we had to make do with mere instructions placed on record by a legal representative but the instructions come at a very belated stage. Mr Bellingan has been extremely coy about this document until now despite explicit questions about it two months ago.
If I may refer you to Bundle 3.1. The documents are not in chronological order and I'd like to ask you to go first to page 9. That is a letter from the TRC to my learned friend Mr du Plessis with various questions about his application. If I may point to two features of this letter.
The first occurs at the foot of page 9. The first two questions asked were:
"How does he explain the two contradictory applications which have been submitted to the TRC, and which of the versions is he intended to advance at the hearing".
Now that letter and those questions, if I may refer to the top of the page, was addressed to Advocate du Plessis on the 26th of November. It was raised at the pre-trial conference on the 4th of December and the minute of that conference appears at page 2 of the same bundle. And as the minute reflects my learned friend on that occasion was asked for the applicant's replies to the various questions in the letter but was not in a position to answer any of them. So that despite the fact that the questions were again pressed on that occasion Mr Bellingan's lawyers were unable to respond to them. They obviously knew how important those questions were for purposes of this hearing because we didn't know which of these versions Mr Bellingan was to advance at this hearing.
The answer only came in a fax last Friday which is essentially the answers now recorded in Exhibit A. Those answers were faxed to us. But have a look at the answers to questions 1 and 2. The first question was:
"How does he explain the two contradictory applications which have been submitted to the TRC?
ANSWER: The later application will be relied upon"
Second question:
"Which of the versions is he intending to advance?
ANSWER: See question 1."
So he really avoided the first question. He didn't answer it at all. He was asked - "How do you explain those two contradictory versions", and as late as Friday he ducked the questions by refusing to reply to them. And now this morning you have given a version, for the first time, and what does it say. It says that there is this inexplicable document that appeared from nowhere and was attached to his application. No explanation is given for that document. No explanation is given for the facts in that document. The whole document is a tissue of lies but it contains particulars which could only have come from Mr Bellingan.
The question is not whether he signed the document or not, the question is whether it was drawn under his authority and attached to his affidavit under his authority on the instructions that he gave. None of those issues have been addressed or explained. You are simply told by a lawyer that Mr Bellingan denies any knowledge of that document and therefore you are asked to strike it from the roll.
My learned friend did say that if needs be Mr Bellingan will be called to give evidence on these issues. We would submit that certainly the ruling can't be made before he's given evidence on those issues. But at this stage we are simply guessing what explanation he may give. Whatever the explanation might be may of course give rise to further questions. We may have to - if he blames this document on other people we would have to approach those people and ask them whether it is true that without his authority they put up a false version. So that the suggestion that the matter be decided without evidence is completely untenable. The suggestion that we have a separate little hearing on it now is an attractive one but simply impractical because we are obviously not going to allow the matter to be decided simply on Mr Bellingan's version. His version would have to be investigated and if needs be the Commission would have to hear evidence on it.
So that we would submit that the appropriate and convenient route would be for Mr Bellingan to start his evidence-in-chief and in the course of that evidence to give his explanation for this document and we will then have an opportunity to cross-examine him on that explanation and if the matter is not resolved by his evidence in cross-examination, but further evidence is necessary, then that evidence may have to be adduced.
So for all of those reasons we oppose the suggestion that this matter be determined simply on the lawyer's instructions placed on record.
CHAIRPERSON: Thank you Mr Trengove. Mr Nott, yet again I am just going down the line.
MR NOTT: Mr Chairman we also oppose the applicant's representative's submission that the first application be disregarded. We again submit that the process and the submissions put forward by Advocate Trengove is a sound one and we once again ally ourselves to those submissions. Thank you.
CHAIRPERSON: Thank you Mr Nott. Mr Chaskalson do you have any submissions in regard to this application?
MR CHASKALSON: I would also like to object in the most strenuous terms to the idea that this portion, the portion of the bundle should be removed. As my learned colleague has set out, Advocate Trengove has given some powerful reasons as to why the ruling sought should be rejected.
I too have additional concerns. I am very unhappy with the evidence being led from the Bar and believe that it needs to be tested. For instance reference is made to the document at page 9 of Bundle 4. I am not entirely certain what relevance we are supposed to give to it, but I have been instructed that this meeting took place approximately in about September of 1996, which was even prior to the first application being handed in. Whether or not it came with annexures I too have instructions as to the source of the additional documents placed in the bundle but I don't want to get into that from here.
I would also like to reiterate the point that this is the first time we have been presented with any information as to the two contradictory versions and I do not see reason why this hearing should be delayed. I would therefore endorse the sentiment that the applicant be required to explain the two versions in examination and if after that explanation is given and the other avenues have been followed and you are happy with his explanation, it should be removed. But if you are not happy with his explanation then it should stay exactly where it is. Thank you.
CHAIRPERSON: Thank you Mr Chaskalson. Mr Stockwell have you got any submissions?
MR STOCKWELL: No Sir, thank you.
CHAIRPERSON: Mr Wagener.
MR WAGENER: Mr Chairman, thank you.
If an applicant files a very short, vague application for amnesty it seems to me that in terms of Section 19(1) of your Act you are entitled to request further particulars to that application. And if this was what Mr Kelbert was in fact doing in this instance, I don't know whether that was the position, but if he was in fact requesting further particulars from the applicant in terms of Section 19(1), and the document from pages 12 onwards reflects those particulars that were given by the applicant I think it is proper that the document is included in the bundle.
If, however, the applicant is now disputing the correctness of those documents I think it will be a matter, as Mr Trengove has indicated, at a later stage the applicant must then testify as to what particulars did he give to Mr Kelbert and whether this is a truthful version thereof or not, and Mr Kelbert will have to testify or show the tape, maybe he had a tape recording, show us his notes he took at the consultation or whatever, and only then will you be in a position to really decide on this.
So the short answer, Mr Chairman, is I think that at present these pages should stay in the bundle, it is correctly before you.
CHAIRPERSON: Thank you Mr Wagener. Mr du Plessis, reply?
MR DU PLESSIS: Thank you Mr Chairman. Mr Chairman at the pre-trial meeting, and I must point out that Mr Trengove wasn't present there, so Mr Trengove will not know what transpired and what was said on an informal basis there as well, but may I refer you to pages 6 and 7, and especially paragraph (C) on page 6 of Bundle 3.1. You will see that I placed it on record specifically that we would answer the questions put forward by the TRC in their letter only insofar as we believe we are legally obliged to provide those answers. We still do not believe that we were legally obliged to answer any of those questions. There is no requirement in the Act for us to provide such answers to such questions. We did it because of the goodwill we attach to this process and the fact that we gave the answers last week Friday does not and cannot detract from the fact that we were never obliged to give those answers.
I may mention that it was mentioned at the pre-trial conference without a formal answer given to the question that we will be relying on the second application, if I can put it like that. The application that starts on page 23, I think, of the first bundle. That was at all relevant times our attitude. And the question only remained how do we explain any differences. So nothing can really be read into the fact that we gave the answers only last week and that we have provided you with an explanation in respect of this document.
In my submission Mr Chairman it is simple to deal with this document. We dispute pages 8 to 22. We say that they - we dispute their authenticity. Now how does one deal with such a document Mr Chairman? If this document is to be used in cross-examination it will only have relevance if the authenticity of this document is proved later on, otherwise any reliance on this document in cross-examination is going to be worth nothing. We say that if anybody wants to use this document he has to prove the authenticity thereof. If he gives an indication that he will be able to do so then you can decide to, in the meantime, allow cross-examination. But up and until that point is reached Mr Chairman, we say we dispute the authenticity of this document and therefore this document should not form part of the bundle until one of the parties wants to cross-examine on it.
Mr Bellingan hasn't signed this document, he didn't sign it under oath, and therefore on that basis we say that it has to come out of the bundle for now.
So my submission is we should deal with this document on the same basis as you deal with any document in a trial and that if the authenticity of this document cannot be proved nobody can rely on this document.
As it pleases you.
CHAIRPERSON: Thank you Mr du Plessis. We will take the luncheon adjournment until two o'clock. We will adjourn now.
COMMITTEE ADJOURNS
ON RESUMPTION
R U L I N G
Mr du Plessis, who appears on behalf of the applicant in this matter, has applied for a portion of the record before us to be struck off.
The application is opposed by most of the parties present, including Mr Chaskalson who appears on behalf of the Amnesty Committee as the leader of evidence in these proceedings.
The application is based upon certain submission which were made from the Bar by Mr du Plessis, basically to the effect that the document in question which is contained in Bundle 1 of the record before us, from paginated page 8 to page 22, and which forms an annexure to the first application which was submitted by the applicant and which is dated the 8th of October 1996, on the basis that this is unknown to the applicant and which has not been signed by the applicant.
Part of the opposition to the application is that the matter cannot be decided in the absence of evidence clarifying the situation regarding the document in question. On the face of it the document forms part of the first application for amnesty of the applicant. And Mr Chaskalson has indicated that he has instructions and presumably evidence concerning the source of the particular document.
In the circumstances, at this stage, in our view the matter cannot be properly decided in the absence of evidence and we accordingly rule at this stage that the document will remain as part of the record and the application to have the document struck from the record is refused.
We need to mention of course that the ruling is in the nature of an interlocutory one and that it is of course open to the applicant to renew the application if he is so advised in view of the evidence in the matter.
The application is accordingly refused.
MR DU PLESSIS: As it pleases you Mr Chairman. Mr Chairman may I quickly deal with the other point that I wanted to raise.
I mentioned two points - the point in limine pertaining to the video. I have decided to leave that point for this moment. I will deal with that point when an appropriate time arises.
The third and last point I wanted to deal with relates to an aspect that was canvassed at the pre-trial conference and it relates to the use of documents.
Now Mr Chairman it was stated at the pre-trial conference - perhaps I should refer you to the correct pages thereof - if you could perhaps turn to Bundle 3.1, and I want to refer you specifically to page 4 thereof, paragraph A. It refers to the fact that I requested that we be notified of all documentation to be used at the hearing, prior to the hearing and that I stated that it may be a ground of review if such notification does not take place.
The attorney for the Legal Resources Centre does not wish to give an undertaking that the documentation to be used at the hearing by the legal team for the family will be produced as requested and they are of the view that the applicant is required to make full disclosure prior to a victim having an obligation to release any information.
We then stated that we undertook to provide the TRC with copies of all documentation that we will be using at the trial at least a week before and I place it on record that it does not exclude us from using other documentation which was not provided previously and which may become relevant at some stage.
Now Mr Chairman I raise this point because this has been a point of contention in all the previous amnesty applications that I was involved in, and that is the question - to what extent should parties make available documents in their possession to the other parties so as to preclude a so-called "trial by ambush"?
Now what we have endeavoured to do is we sent a fax through, I think during last week, to Mr Chaskalson indicating what documents we intend to use. The bundles we provided you with this morning contained a few other new documents which we subsequently included, especially in Bundle 4, but these are essentially the documents that we intend using and we have presented all the parties now, right before this hearing with these documents. We do this because we believe that this process deals with truth, that we want to make a full disclosure and we believe that it is necessary for purposes of proper justice in these matters to do this.
I have not taken this matter up with Mr Trengove personally, but I accept that the position is still the same as it was at the pre-trial conference, namely that the representatives of the family feel that they do not have to provide us with copies before they use them in any way in cross-examination or any other way.
I want to place this on record Mr Chairman that I again request copies of documents in the possession of the family and anybody who opposes this application, as would have been the case with discovery in a normal civil trial, so as to enable me to take it up with my client, to consult with him, and to deal with it in a proper fashion. If this is not done, Mr Chairman, it is going to lead to an objection every time any of the parties who object to this application, an objection to the use of such a document, either in cross-examination or any other way.
If there is a refusal to make such documents available I request the Committee to make a ruling in that regard.
As it pleases you Mr Chairman.
CHAIRPERSON: Thank you Mr du Plessis. Mr Trengove.
MR TRENGOVE: It is indeed correct that it has until now been our position that we decline to make any documents available to the applicant.
We oppose the application on three different grounds. The first is that we simply don't know at this stage what documents we are going to use. The reason we don't know is that we don't know which version and what evidence we are going to have to be confronted with by Mr Bellingan. I demonstrated to you this morning just one example of how closely they held their cards to their chest, but you will also know from - so we learnt only Friday of which of the two completely contradictory versions they intended running at this hearing.
But even when we were told that it would be the second version we still sit with an extremely vague and evasive application. An attempt was made from our side, and from the TRC side to request particulars so as to give us a better idea of what the case is that we are going to have to meet. That attempt was largely unsuccessful because of the evasive way in which our questions were dealt with.
So as we sit here we simply don't know which documents we are going to use. There are certainly some documents that we believe we would be using but all of that again depends on what version is trotted out today.
Secondly, my learned friend speaks of "trial by ambush" as if it is something which is impermissible. Mr Bellingan, as we have previously submitted, will be shown to have been an inveterate liar, who has lied about this murder particularly on virtually every occasion that he's had anything to say about it. One of the judicial officers before whom he appeared in the course of the criminal proceedings described him as one of the most accomplished liars that the magistrate had ever had the benefit of hearing. One of the only, and certainly one of the most effective ways of exposing someone with such little regard for the truth is to confront them unexpectedly with evidence of which they were unaware and which they did not have an opportunity of taking into account in tailoring the version that they choose on this occasion to put forward.
We would certainly resist any attempt to force us to show our hand and to give them a preview of all the documents that we intend using only to enable him to tailor his version to accommodate the evidence in those documents.
So we would submit that there is a second good reason, if the truth is sought to be discovered, not to force us to give him a preview of all the documents that we intend using.
The third basis on which we resist the application is this. With the greatest of respect to the Commission we simply don't believe that the Commission has the power to order us generally to make discovery of all documents that we intend using. Let me immediately qualify that by saying that as soon as we decide to use documents and provided the disclosure of those documents do not prejudice our case we will give them to our learned friends and make them available to Mr Bellingan. So that we would certainly do everything in our power to cooperate in the conduct of these proceedings so as to avoid unnecessary delay and interruption.
But we anticipate, we have certainly not yet determined which documents it is that we are going to use, we anticipate that in the course of Mr Bellingan's evidence-in-chief and probably even in his cross-examination, when for the first time we hope we will get a specific account of his evidence on these events, the materiality of documents will become more-or-less evident. When it does we will disclose those documents provided it doesn't prejudice our case.
But subject to that undertaking an assurance of cooperation we submit, with respect, that the Commission does not have the power to oblige us generally to make available all documents that we intend using.
It of course has power of subpoena. It can at any time issue a subpoena and request particular documents and we will not even insist on that technicality. If there are particular documents that the Commission wants of us we will not insist on a subpoena, a request from my learned friend Mr Chaskalson would suffice, and we will provide the documents, but beyond that power this Commission simply does not have the power to order us to show our hand by making available to the applicant all the documents we intend using in these proceedings.
CHAIRPERSON: Thank you Mr Trengove. Mr Nott have you any submissions on this ...(intervention)
MR NOTT: Mr Chairman we anticipate that any documentation that we may rely upon is already before the Commission and also before the parties. However, if there is any document which is material to our case, which we believe that should be seen by the parties and by yourself Mr Chairman and the Honourable Committee, then we will endeavour to ensure that it is placed before you within a reasonable period of time.
In that regard once again I support what Advocate Trengove has said in this regard. Thank you.
CHAIRPERSON: Thank you Mr Nott. Mr Chaskalson.
MR CHASKALSON: I don't have much to add to this issue, save to say that I believe that all the documentation that is at the disposal of the Commission has been made available to all the parties.
My learned colleague, Advocate Trengove, mentioned earlier on that they had no objection if we would request certain documents from them and following this morning's argument around the status of the Women's Rights Group and the fact that they will not be a party to this hearing I have requested possession of certain diaries, which I will be given later tonight, and I have already undertaken to make copies of those available to all the relevant parties first thing tomorrow morning.
CHAIRPERSON: Thank you Mr Chaskalson. Mr Stockwell.
MR STOCKWELL: Mr Chairman we suffer the same difficulty as Mr Trengove and his team that we don't quite know what the applicant's case is going to be. We don't anticipate to make use of any documents and we don't think we will have any documents relevant to the proceedings but until we know what evidence is going to be before this Committee, we cannot really say whether we are going to rely on documents or not.
CHAIRPERSON: Thank you Mr Stockwell. Mr Wagener.
MR WAGENER: Thank you Mr Chairman. Only one brief aspect - I am of the opinion that in terms of Section 30(1) of your Act you are allowed to determine the procedure for this hearing, and in terms of this section you are allowed, for instance, to demand that parties do show their documents along the lines of discovery in a civil trial.
That's the only point I wish to raise. Thank you.
CHAIRPERSON: Thank you Mr Wagener. Mr du Plessis.
MR DU PLESSIS: Thank you Mr Chairman, just very shortly. Mr Wagener has answered the third point of Mr Trengove which I wanted to refer the Committee also to, Section 30. We have had previous matters where such a ruling was made and documents had to be provided, so we have examples of the Commission's Committees having made similar kind of orders previously, in previous hearings.
In respect of Mr Trengove's second point relating to the question of "trial by ambush", he stated that the applicant is an accomplished liar and clearly his acceptance is of the fact that the applicant is going to lie in these proceedings. That is clearly not the way the applicant is approaching this matter. The applicant is here to tell the truth. The applicant is here to make a full disclosure. It is not the procedure of hide-and-seek where people try to catch each other out by hiding documents and providing them at the last moment with a big "hurrah" saying that we've caught you out. That is not the intention of this process Mr Chairman. We all know the time periods which have elapsed in respect of certain actions. In this instance it is approximately ten years. It is a difficult situation and even in criminal trials the development has been in respect of documents in a docket to make them available to the defence.
Now in my submission Mr Chairman, if the legal representatives of the family are in possession of documents which may be relevant to the issues in dispute in this matter relating to the issues the applicant has to prove in terms of Section 20 of the Act, clearly those documents must be made available before this matter starts, and you have the right to make such an order in all fairness. I am not advancing the proposition that every single document in their possession must be made available, but if there are documents which are relevant to the disputes, in my submission they should be made available.
Then the first argument of Mr Trengove was that they don't know which evidence will be presented. Well Mr Chairman insofar as there are facts contained in the application in large detail, but which will be elaborated on in evidence, if documents are available relating to those facts clearly those documents can be made available. It's not a question of a fact that no facts are known or available upon which a decision can be made if certain documents are relevant or not.
MR TRENGOVE: Mr Chairman, if my learned friend is done, be given another opportunity because there is a new application before you now.
MR DU PLESSIS: As it pleases you Mr Chairman I don't know what the new application is.
CHAIRPERSON: Yes, but have you got any other submissions before ...(intervention)
MR DU PLESSIS: No, no, I just answered to the submissions of Mr Trengove. As it pleases you.
CHAIRPERSON: Thank you. You wanted to add something Mr Trengove.
MR TRENGOVE: Mr Chairman the application that my learned friend makes in reply differs completely from the one he made in opening. In opening he said they had tendered the documents that they intend using and they've asked for an order that we do the same. It's a very limited application confined to the documents the parties intend to use. When we demonstrated that that was impossible because we didn't know what documents would be necessary to use because we didn't know what version we were going to get from the applicant, the application changed in reply. He now says we must be ordered to disclose all documents which may be relevant to the issues in dispute. In other words he wants full discovery now whether we intend to use the documents or not they must be discovered. That is a far-ranging application for any document which he says may be relevant to the issues in dispute.
It is firstly a new application, it is now a discovery application without limit that is being made. And secondly we still want to know what are the issues in dispute. What is the - not only the evidence, what are the facts that are going to be advanced by the applicant. Those facts are extremely vaguely set out in the application. The attempts to particularise those facts have been largely unsuccessful and to now make a discovery order relating to all documents which may be relevant to any of the issues in dispute will firstly be impossible to comply with. We don't know what the issues in dispute are, but in any event would be a mammoth operation. We have very many box files relating to this sorry history, most of it would be irrelevant to this hearing, but would possibly have some relevance to some of the issues that may be raised by Mr Bellingan.
MR DU PLESSIS: May I reply Mr Chairman?
CHAIRPERSON: Please do.
MR DU PLESSIS: Mr Chairman with the greatest of respect to Mr Trengove I don't know if I made a mistake in accepting that he would only use documents that would be relevant. The question and the order that we are seeking relates to documents that they intend to use, and clearly those documents would be relevant to the issues. I am not asking for all documents that may be relevant to the disputes, I am asking for all documents that may be relevant to the disputes which they intend using. And if I did not express myself clearly in reply that is the essence of what I am asking. I am not asking them to make full discovery. I am asking them to give me documents relating to issues in dispute which they want to use, and I accept that Mr Trengove will only use documents which are relevant, clearly. And that is the essence of the application Mr Chairman.
As it pleases you.
CHAIRPERSON: Now Mr Trengove indicates that he is really only in a position to respond effectively to that request once your client has presented his evidence-in-chief and it is apparent what the issues are in the matter.
Now assume that course is followed and your client is called upon to proceed and present his evidence-in-chief and you are given an opportunity to renew your request because Mr Trengove is then in a relatively better position to understand what the issues are, and assume that there are documents forthcoming which the family intends to use to oppose the application and you are given an opportunity to deal with those matters and look at them, whatever needs to be done, would your client be prejudiced if that sort of course is followed?
MR DU PLESSIS: Mr Chairman if that course is followed I would be extremely happy and satisfied. If the applicant is provided the opportunity of perusing documents after he has finalised his evidence with a view to perhaps deal with some of the documents if he feels it necessary and he deems it necessary before cross-examination starts, I will be extremely happy with that. I understand the problem and we have experienced it previously that documents become relevant in the middle of a trial which nobody thought would be relevant. So I understand that. And if this course is followed, Mr Chairman, I would have no objection against it.
CHAIRPERSON: Well Mr Trengove has indicated that he is committed to cooperate with the smooth running of these proceedings. Should we, at this stage, would you be happy if at this stage we hold over this request and we proceed to hear the testimony and see how we take it from there?
MR DU PLESSIS: Yes Mr Chairman do I then understand that I will be afforded the opportunity to deal with this again right at the end of Mr Bellingan's evidence?
CHAIRPERSON: Yes you would be entitled to renew your request.
MR DU PLESSIS: In the light of the submissions made by Mr Trengove to the Committee now?
CHAIRPERSON: Yes.
MR DU PLESSIS: As it pleases you Mr Chairman.
CHAIRPERSON: The video matter seems to have been sorted out. Can you give us some indication, Mr du Plessis, are we dealing with that video first or are we going straight into the testimony?
MR DU PLESSIS: Mr Chairman I have decided against raising the point of the video because I don't want to seem to be obstructive Mr Chairman. We have concerns about the video. We believe that if the video is to be shown that before the evidence commences it should be shown to everybody concerned because it depicts all the places relevant in respect of the murder of Janine Bellingan and it shows certain aspects of the incident. We believe that it is not relevant pertaining to the issues before the Committee. But we feel that if the video is to be shown it should be done right at the beginning. That was our feeling but I am not making an application for that Mr Chairman.
CHAIRPERSON: I think we are in a slightly better position to understand. So the video really just shows the scene after the incident?
MR DU PLESSIS: Mr Chairman I haven't seen the video. I have been informed of the contents by my client so I cannot really tell you what the video depicts. I have been informed that it shows the scene after the murder. I am not sure if that is all that is shows. I think my learned friend would be more in a position to tell you.
CHAIRPERSON: No, no, I think well enough. If you are comfortable to lead your client I think let's do that.
MR DU PLESSIS: As it pleases you Mr Chairman. May I call Mr Bellingan.
MICHAEL BELLINGAN: (sworn states)
CHAIRPERSON: Please sit down Mr Bellingan.
MR BELLINGAN: Thank you Mr Chairman.
CHAIRPERSON: Mr du Plessis.
EXAMINATION BY MR DU PLESSIS: Thank you Mr Chairman.
Mr Chairman I may just point out that the application is quite a voluminous application and especially the background part of the application which you will find in Bundle 1, more specifically from page 25 until approximately, if you will just bear with me a moment, until page 100. It deals with background information. Now Mr Chairman some of it is more relevant than other parts of it. I intend to deal with it in detail but I would want to request you, if you feel that some of the information is something that one can deal with much quicker or that one can skip because it is wasting the Commission's time please indicate to me that that is the situation and I will go faster under the circumstances.
CHAIRPERSON: Yes I think you can accept that we have had regard to the application which forms part of the record in any case before us, so that from our perspective it might really only be necessary for you to emphasise those aspects that you want us to take particular note of. So you can bear that in mind.
MR DU PLESSIS: Thank you Mr Chairman, I will do that.
Mr Bellingan the background to your application is contained in Bundle 1 from page 25 to 100. Now can we start on page 25. Just very shortly, can you just very shortly deal with your career in the South African Police.
MR BELLINGAN: Mr Chairman I joined the South African Police on the 1st of January 1979. Directly after training in the South African Police College in around June 1979 I was transferred to the Detective Branch where I worked until about 1981.
MR DU PLESSIS: Alright. Mr Bellingan could we turn to the next page. It is typed page 4, paginated page 26. Right, do you want to add something further.
MR BELLINGAN: In that year I was transferred to the Security Branch at the Witwatersrand where I started out with basic field work. At that stage I had the rank of Detective Sergeant. Thereafter I became involved in intelligence work which included ad hoc Stratcom actions, Stratcom being short for, Strategic Communication.
MR DU PLESSIS: Mr Bellingan could we deal with the third paragraph on page 26, that's typed page 4, could you please deal with that.
MR BELLINGAN: We were encouraged to disrupt the left wing including anything from liberal to radical. Basically any enemy of the National Party was seen to be unpatriotic and therefore our enemy. The Johannesburg Security Branch was always in the forefront of the counter-revolutionary strategy. On occasion we received visits from Ministers such as Louis le Grange. Their motivational talks were directly National Party talks.
MR DU PLESSIS: Please read the next paragraph as well.
MR BELLINGAN: We had National Party organisers working at the Security Branch. I did believe at the time that the National Party took policemen for granted and that they tolerated no criticism. For example I was taken for a drive one day by a Major Mahoney, who was then my section head, who told me in no uncertain terms that I should never bite the hand that feeds me, by which he meant that I should not be at all critical of any of the strategies or actions that the Security Branch or National Party were involved in.
Acts which reflected patriotism to the National Party were rewarded, whereas acts reflecting the opposite were severely punished. We were encouraged to neutralise the left as well as any bad influences.
ADV GCABASHE: Mr Bellingan you elected to move into intelligence work or were you compelled to move into intelligence work? Just clarify that.
MR BELLINGAN: Basically with my transfer to the Security Branch the distinction between field work and intelligence work was not very clear. It really just happened. I was transferred to the Security Branch from the CID at John Vorster Square. It's just ...(intervention)
ADV GCABASHE: Are you saying you had no choice in that particular transfer?
MR BELLINGAN: I could have objected but really one - if one was recognised as having certain capabilities and you declined it's just as good as looking for work elsewhere in terms of a career in the South African Police. So it wouldn't - it would be wrong to say that I was coerced, that's not true, but at the same time it's a series of circumstances which - steps where one becomes deeper and deeper involved where at any stage one can volunteer to opt out but then that is the end of your career basically. In the initial stages - in later stages I will elaborate as to those consequences.
ADV BOSMAN: Mr Bellingan just to go on there, you mention here that acts reflecting the opposite were severely punished, could you just give us an example of the type of punishment you are alluding to here?
MR BELLINGAN: First let me just say that what I mean by that Mr Chairman is, patriotism was National Party policy line, National Party line. That was equated with patriotism at that time. So anything to the contrary of the policy of the National Party would be seen to be unpatriotic. Then the punishment over there would be a transfer, administrative matters which would make your life very unpleasant, basically it would mean the end of your career and people who were outspoken in their opposition were threatened. I heard threats for example of eliminating people who became a problem, who became outspoken.
ADV BOSMAN: Do you know of any eliminations at all? Because the word "severe" caught my eye.
MR BELLINGAN: Yes Mr Chairman. At that stage those eliminations that I heard about were - it was not something that was a major problem then, it was something in the background. At a later stage the eliminations became very much in the foreground and I do mention certain of them later on where policemen, for example, were eliminated for their point of view. And people like Dirk Coetzee hounded and attempts were made to kill him because of his basically exposing operations of the Security Branch, etc, etc.
ADV BOSMAN: Thank you.
MR BELLINGAN: Thank you Mr Chairman.
MR DU PLESSIS: Thank you Mr Chairman. Now Mr Bellingan evidence was previously, at quite a number of hearings of Security Policemen, presented to the various Committees about the fact that the Security Police were really the police force of the National Party, the military arm of the National Party, and specifically the National Party, not just conservative minor people but the National Party itself as a political party. What are your views on that?
MR BELLINGAN: I agree full with that Mr Chairman. I think it's a very accurate reflection.
MR DU PLESSIS: Right. Can we deal on page 27, the second paragraph, that's typed page 5 Mr Bellingan, the second paragraph, the two last sentences. The one starts with "Operations", can you just read that?
MR BELLINGAN: "Operations ranged from recruitment to theft, disinformation, arson, murder, counter-espionage etc. There was also a great deal of informal competition amongst the different regions of the Security Branch".
MR DU PLESSIS: Could you go on to the next paragraph please.
MR BELLINGAN: "In terms of my own work I obtained credibility within the Security Branch and was especially good at recruitment in Stratcom".
What I mean by "credibility" is simply that I could be trusted and that I was at the same time fully compromised, which is basically one of the requirements, I think, for a good operator.
"I also started and managed various false-front companies and operations etc. These would enable us to do false-flag recruitment, in other words to recruit those who would never work for the Security Branch but would work for, for example, an alternative media outfit.
In 1983 I went on officer's course the duration of which was three months. In the same year, later on that year I was sent on an intelligence handler's course of the duration of three weeks which was at Daisy Farm. The farm code named "Daisy." This was a very intensive course and was by invitation to select people only.
In 1984 I was sent on a two week inter-departmental Stratcom course in Pretoria. Other departments that were represented included Foreign Affairs, the Military. Invited guests also included people such as the head of the then SABC TV".
I just mention in passing that it was not a well-kept secret that the National Party controlled the SABC TV at that stage.
"Hereafter I was the Stratcom Officer for Witwatersrand. Captain Basie Bouwer was in charge of Stratcom at head office at that stage".
I mention here as well that what I refer to as "hard Stratcom", generally it was - that's translation of "harde" but it's the same thing, hard Stratcom was usually not done with specific written instruction of the State Security Council. It was mostly done informally by the various departments, prominently the Security Branch and Military Intelligence.
MR DU PLESSIS: Mr Bellingan what do you mean by "hard Stratcom"? Can you just very shortly explain that.
MR BELLINGAN: That is something which is not strictly a propaganda action. Not strictly something of the written or spoken word and would be along the lines of what the Russians would refer to as "covert active measures".
MR DU PLESSIS: Right. Can you deal on the next page, page 29, that's typed page 7, with the three paragraphs there.
MR BELLINGAN: Yes Mr Chairman.
"The Security Branch regions did not like the
centralisation by the Security Branch head office.
There was a sort-of autocratic centralisation at that
stage and the regions were not comfortable with that.
Many officers preferred to do ad hoc actions without
head office notification. Many of the "soft Stratcom"
operations (communication action) were directed
from Byron Place, which was the State Security
Council head office, were in my opinion a mess.
It was the perception that the government was
ineffective and whenever there were problems the
South African Police were used as a buffer. Naturally
this alienated the South African Police from most
communities and resulted in us losing ground in the
war of attrition by the revolutionary forces.
In the meantime Military Intelligence and the CCB
had started up and were going full steam. I had job
offers from Military Intelligence as well as National
Intelligence. As I understood it the time that I had a
job offer from Military Intelligence was at a time that
they were busy restructuring their attempts at the
covert neutralisation of the revolutionary forces and
that included the Civil Cooperation Bureau.
At the time I was keen to leave the South African
Police because of the intrigue..."
but there I might add that in leaving I would have gone to Military Intelligence or to National Intelligence.
"However I never left because of my belief at the
time that I had a duty to see the country through the
trouble it was in and the Security Branch was very
actively involved. As I saw it then it was
preeminently involved".
MR DU PLESSIS: Right, Mr Bellingan then you deal with the time period 1986 to 1993. In 1986 you were transferred to head office, second-in-charge of Stratcom under Captain Louis van Niekerk. Can you just deal with what happened very shortly over that period with you in the South African Security Police from paginated page 30, typed page 8.
MR BELLINGAN: Basically Captain Louis van Niekerk was running Stratcom which was Unit G2 at head office at that stage and he approached me because as he put it I already had a reputation amongst the regions and we worked reasonably closely with Pretoria so I was quite well-known over there and they had a need for someone with a bit of operational ability and the necessary academic background to be transferred to head office in Stratcom. So I accepted that.
Shortly thereafter Captain van Niekerk left. He went to work for the military following on the heels of Major Craig Williamson. They both worked for Military Intelligence. The cover that they used was a company called Giovanni Mario Richie which happened to be the name of an existing person, but it was a registered company.
MR DU PLESSIS: Right Mr Bellingan, and then thereafter Colonel MacIntyre became head of Stratcom and he retired in 1990, is that correct? The last sentence of that paragraph.
MR BELLINGAN: Yes, shortly after that Colonel Macintyre took over Stratcom. We moved to Maritime House and I worked with him until the end of 1988.
MR DU PLESSIS: Alright. And then - leave the second sentence on that page out, and then deal with the last paragraph on page 30 please.
MR BELLINGAN: "After my work at Stratcom Unit G, as it then was, was amalgamated with Unit D which was at a covert building in Kudu Arcade in Pretoria and that was Unit D. So Stratcom re-emerged with Unit D and some of the operators or some of the people working there were transferred to Unit D under General Gerrit Erasmus".
I think he was still Brigadier then. So again then from the end of 1988 I was back with General Erasmus who I had worked with previously in Johannesburg. Some of the people that worked at Stratcom were transferred to Vlakplaas. Others like Brigadier MacIntyre were transferred to Security Branch head office, and some of them went with me to Unit D. For example Brian Nxqulunga was not transferred to Unit D or to Vlakplaas at that time whereas Pete Mogai was - another Askari. And then there was another one, Edgar, another Askari who worked with us, who, if I am not mistaken, was transferred to Vlakplaas.
MR DU PLESSIS: Alright. Mr Bellingan then page 31, typed page 9, you refer to the cashing of cheques and the Numsa issue here. We are going to deal with that in much more detail when we get to that application, so I do not want you to comment on that now. Can you deal with the last paragraph on page 31 please, typed page 9.
MR BELLINGAN: "After Janine's death during one of my visits to General Erasmus, but before the inquest he said then I should give no information about the matter to anyone and he would see to the rest. He also told me that he had spoken to General van der Merwe and Minister Hernus Kriel about the matter as well as to Advocate Klaus von Lieres. I believe it was only as a result of political pressure that there was an inquest at all. The matter was in many respects media driven at that stage".
MR DU PLESSIS: Right. Mr Bellingan the next page, page 32, typed page 10, can you deal with the first paragraph there and the second one please.
MR BELLINGAN: "An inquest was held into the murder of Janine in 1994. I think it was March 1994. That was in fact after I had left the South African Police on medical grounds at the end of 1993. During the - I in fact was not going to attend the inquest at all but as it turns out I received a phone call and I made it there in the afternoon of day one.
After I was called to give evidence at the inquest I followed on what I perceived to be instructions, and that is to deny all operations, and that evening Colonel "Piesang" Nel took me for supper and he gave me an indemnity form to sign which I did. This was to prevent any prosecutions from taking place. Of course I gave evidence for two days so I was slightly more comfortable the second day but still denied everything at the inquest".
MR DU PLESSIS: Carry on.
MR BELLINGAN: "When I returned from New Zealand to face trial in 1994, at the end of the year, the promised indemnity certificate was not available and in any case, according to media reports there were strong objections against it from the African National Congress, who had apparently rejected the 3,500 similar applications.
What also made it difficult for me was the fact that my bail conditions stipulated that I was to have no contact with any of my ex-colleagues from the Security Branch. I was forced to keep quiet about the operations and as I had only been charged for the murder, for which I understood there was no evidence, I continued to assume that General Erasmus and the State would stick to their side of the deal. In other words I understood that I would face trial, incriminate no one and that would be the end of the matter.
In January 1995 the investigating officer, Major Willy Steyn even mentioned to me that during a discussion he had had with Brigadier Oosthuizen he had been told that I had received indemnity or would receive indemnity.
My main concern throughout the investigation has been to toe-the-line by not mentioning detail of my past work".
MR DU PLESSIS: Right. Mr Bellingan can we just come back to the allegations that you have made about General Erasmus. In Mr Wagener's answer to questions of the Truth Commission in Bundle 3.1, page 13, he states - page 14 really, paragraph 2.9 - Erasmus states that he never told you that you should not disclose any information and things would be taken care of. He said he told the investigating officer to conduct a thorough investigation.
And then 2.10 he denies that he ever discussed the murder with General van der Merwe, Minister Kriel and Advocate von Lieres, or that he used words to this effect in a conversation with you.
Now Mr Bellingan in the light of this is it possible that your understanding of the situation may have been different from what Mr Erasmus says here, or what is your comment on that?
MR BELLINGAN: Mr Chairman there was a type of language that we used in the Security Branch. It was seldom necessary with regard to sensitive operations to mention detail. There was a kind of second order communication. That's what I mean by that. And with the second order communication it was reading between the lines as it were. But whatever General Erasmus may have understood, or whatever I may have understood, I remember him saying that there had been too many leaks, there were too many problems and that I should not disclose any information and that nothing would come of the investigation. So these exact words, it's possible that they may not be verbatim, but I understood words to that effect.
MR DU PLESSIS: Mr Bellingan did General Erasmus ever say to you in direct words that he will become involved in the investigation, cause difficulties with the investigation personally? Did he say it in so many words?
MR BELLINGAN: No he never said that he would be obstructive to the investigation at all.
MR DU PLESSIS: Alright.
ADV BOSMAN: Mr Bellingan at what stage did General Erasmus particularly mention the names of Hernus Kriel and Klaus von Lieres? You know you said it's sort of - it's a matter of reading between the lines. How does one reconcile that?
MR BELLINGAN: I remember him saying that he had discussed the matter with those people and that was in connection then - I was unhappy with the fact that the media were making a huge fuss about this and that I was being - I was under a lot of pressure to make disclosures. The investigating officer was dogmatic, he was very persistent and General Erasmus also mentioned that he had thought that it might be advisable to get a different investigating officer.
ADV BOSMAN: But what you are saying in fact is it was not always a matter of reading between the lines?
MR BELLINGAN: No that's correct Mr Chairman.
CHAIRPERSON: What was the position with regard to the perceived instruction to deny your involvement in the murder at the inquest?
MR BELLINGAN: Mr Chairman it was a kind of a logical thing for me to understand because that would be my first inclination anyway in terms of my training, but it was confirmed. I understood that General Erasmus was confirming that I should say nothing. In fact it was a bit more than reading between the lines. He said I must say nothing about the Security Branch operations.
CHAIRPERSON: Are you saying that you understood from your discussions with General Erasmus that you shouldn't tell the truth about the murder of your late wife at the inquest?
MR BELLINGAN: That's what I understood Mr Chairman.
CHAIRPERSON: From the discussion he never explicitly told you that you should lie about the incident?
MR BELLINGAN: No he never said I should lie about it. In fact if I recall, I could be mistaken, but I think his words were that it was not necessary to say anything. By that I understood anything about the Security Branch - anything about operations, anything of a sensitive nature.
As will become evident later on I said a lot at the inquest, but that was all vague and things that couldn't be dead-ended etc, etc, in line with my training, but I tried my level best not to say anything about Security Branch operations etc, etc.
CHAIRPERSON: Thank you. Mr du Plessis.
ADV GCABASHE: Mr Bellingan are you saying that Mr Erasmus accepted that killing your wife was a Security Branch operation, he acknowledged that?
MR BELLINGAN: We didn't talk about it in so many words Mr Chairman.
ADV GCABASHE: No but I understood you to say that he told you not to say anything about Security Branch operations. You were then asked about the killing of your wife. I am just trying to find the nexus between the two, a Security Branch operation and the killing of your wife, just on what you are saying.
MR BELLINGAN: No, I understood that to be in tandem and I understood it to be kind of tacit ratification if you like, or condonation. That's how I understood my discussions after the murder with General Erasmus.
ADV GCABASHE: But he didn't explicitly say anything of the sort?
MR BELLINGAN: No he never explicitly said that. That would have been totally out of character for any Security Branch operator with so many years experience. It wouldn't have been necessary at all.
MR DU PLESSIS: Mr Bellingan perhaps just to clarify this, did you ever tell General Erasmus or anybody else of the fact that you had killed your wife, explicitly?
MR BELLINGAN: Once again that wasn't necessary. I never explicitly mentioned it. It was - amongst my close colleagues it was accepted from the time that I first met them it was, I understood that they were up-to-date with who had killed Janine.
MR DU PLESSIS: Alright Mr Bellingan, page 33, typed page 11, second paragraph and the third paragraph, can you just deal with that please.
MR BELLINGAN: "I left the Security Branch in August 1993 on the grounds of post-traumatic stress as a result of work-related factors. So in other words I was pensioned off.
During my incarceration in 1995 Superintendent Johan Meyer, one of the lawyers from the South African Police at Vorster Square visited me in prison and amongst other things he said that he is aware that the Numsa matter was a Stratcom operation and he wanted to know if we could put a sum on how much Numsa should be paid."
Apparently Numsa was then requesting payment based on the difference between actual and expected income, whereas at the trial they were hinting as to a sum of about R1.5 million, they were now talking about R2.8 million, and Superintendent Meyer was uncertain and he wanted - I couldn't enlighten them.
The point of the matter is I didn't make any disclosures to him whatsoever, and in actual fact I had only been responsible personally for a fraction of this amount that they were talking about. So I was not - I still never made any disclosures to Johan Meyer. I still never had any intention to although I was promised indemnity also while I was in prison by somebody from Dr d'Oliviera's office.
ADV GCABASHE: Just explain "responsible for a fraction", responsible in what sense of responsible? Are you talking about transactions that you were directly involved in?
MR BELLINGAN: Yes, that's correct, something that I had perpetrated myself.
CHAIRPERSON: In other words the value of cheques that you had intercepted, or that - not intercepted but that you had handled, dealt with.
MR BELLINGAN: Correct, correct Mr Chairman, that is it.
CHAIRPERSON: Only a fraction of this 2.8 million?
MR BELLINGAN: Yes Mr Chairman.
CHAIRPERSON: Mr du Plessis.
MR DU PLESSIS: Thank you Mr Chairman. Now Mr Bellingan the next part of the application from paginated page 34, that's typed page 12, you deal with the functioning of the Security Branch and you deal with that up and until page 39, typed page 17. I don't want you to go into detail in respect of the functioning of the Security Branch. The most important part of this Mr Bellingan deals with secret operations and covert actions. Now can you just very shortly, without reading the paragraph just explain to the Committee what your view was on the question of secret operations, covert actions, if it was allowed, if it was authorised and what was your view during the time you were in the Security Police.
MR BELLINGAN: By that is meant something which is not for public consumption. Not for information to the public and also despite the fact that we worked - I worked with a top secret clearance, despite that fact that I worked with other people who had a top clearance we worked with compartmentalisation. So that it was not necessary for other people to know about covert activities that one was involved in unless they were specifically part of that. So it was - covert work was secret work within a secret organisation for and on behalf of the government of the day and in furtherance of political objectives.
CHAIRPERSON: Alright. Now Mr Bellingan the next point is really in the wrong place in the application, it should have been right at the end of the application. It just deals with your memory. Can you explain to the Committee what the position pertaining to your memory is about the incidents, and especially the Numsa and the murder of your wife, just very shortly.
MR BELLINGAN: These incidents happened a long time ago Mr Chairman and I know already from going through documentation today that I have made an error and I am likely to make more such errors based on memory lapses, and I request, very humbly, that full disclosure be made in the light of the fact that these matters were a long time ago and that I am not always going to be accurate with respect to dates, etc, etc, etc.
MR DU PLESSIS: Alright. Mr Bellingan while we are on the point can you tell the Committee before we go ahead what your view is of this process and your view pertaining to speaking the truth.
MR BELLINGAN: I think it has been a vitally necessary cleansing period in our history. And I think it is necessary that in view of openness and transparency that we get these things out and put them to rest as the Truth Commission has been doing.
MR DU PLESSIS: Mr Bellingan you have heard already accusations that you are a liar and presumptions that you are not going to speak the truth here, what is your view to that?
MR BELLINGAN: I deny that. I have no intention whatsoever of lying to this Committee. I have applied for amnesty in respect of perjury. I am quite open about it.
MR DU PLESSIS: Alright. The next part of the application on page 39, typed page 17, is partly in Afrikaans until page 46, typed page 24. Now Mr Bellingan we don't have to go through that in detail. It just gives the background of the view the security forces, and especially the Security Police, about the struggle of the time. Do you agree with the contents hereof?
MR BELLINGAN: Absolutely Mr Chairman, yes.
MR DU PLESSIS: Mr Chairman, just for clarity's sake why this is in Afrikaans, this is a part of the background application of each applicant that I represent. This was part of the evidence of, especially Brigadier Jack Cronje, which was elaborated on extensively during his evidence and on which we will rely for purposes of Mr Bellingan's application as well, just pertaining to the background and pertaining to this part of the application. It very shortly just deals with the view of the Security Police of the struggle, the struggle against the ANC, the liberation movements, and I think you have heard enough evidence for us not to go into that detail.
CHAIRPERSON: No thank you very much. You can proceed.
MR DU PLESSIS: Thank you Mr Chairman. Page 46, typed page 24 Mr Bellingan. It starts, it goes over into English again and these are aspects that you included in the application, could you just very shortly deal with that?
MR BELLINGAN: Certainly Mr Chairman.
This was a mid-eighties view of the liberation movements, and I say that I mean the members of the Security Branch, how they viewed the liberation movements at that time.
All evidence of the liberation movements pointed to them being revolutionaries committed to the violent overthrow of the South African Government. The strategy and goals of these organisations, clearly documented in the publications, anyone who has examined these publications and the record of violence and terror would conclude that the main enemy, the African National Congress was justifiably seen as a revolutionary terrorist organisation.
There are statistics attached to in regard to terror incidents etc. I think it is Annexure F. Anyway it is a thick documentation which I have attached. The ANC was dominated, at that stage, by the South African Communist Party and most of its key decision-makers were members of the SACP. All ANC political analyses of the RSA was based on a Marxist/Leninist approach. It drew inspiration from the writings of people like Mao Tse Tung; General Che Gueverra etc. It was believed that nationalist members of the African National Congress were only tolerated for propaganda reasons. And further that the Freedom Charter was not the real long term aim, rather a society modelled along Communist dictatorship. The classical two stage theory.
Violence, intimidation and murder formed the foundation of the activity of the liberation movements. They were motivated by hatred and desire for revenge. The necklace method became popular and was extremely intimidating. There was no tolerance of cooperation between black moderates and the government because of awareness that PW Botha's reform policies were destroying their chances of bringing about revolution. A people's war was conducted on similar lines to guerrilla war, guerrilla conflict in Vietnam in the late sixties and early seventies. The campaign strove to make the country ungovernable. People were mobilised to carry out mass insurrection, terrorist acts were intended to motivate supporters and destroy the morale of moderates and security forces.
At about this time they took a decision to abandon the policy of not attacking soft targets. Efforts to foment violence were stepped up and the security forces were also specifically targeted.
Members of the liberation movements were professionally trained by some international terrorist organisations. The car bomb tactic, amongst other things, was the result of that training, or that cooperation.
At the same time any offer to them of negotiation was rejected. The liberation movements were only interested in seizure of power. Reform was seen as an obstruction to their cause because it removes the incentive for revolution. The campaign of violence was stepped up to bring reform and peaceful negotiation to an end.
Homelands were also destabilised in an effort to show weaknesses of the government's policies. All of this coloured the security forces' opinions of the liberation movements and at that stage none of us seriously considered the possibility of a peaceful negotiated transition".
MR DU PLESSIS: Alright Mr Bellingan we don't have to repeat the references there. Were these aspects and things that were said by members of the liberation movements that influenced you?
MR BELLINGAN: Yes Mr Chairman. I believed the quotations that are quoted over here. I have got no reason to doubt their veracity.
MR DU PLESSIS: You will find that until page 50, typed page 28. Then we don't need to deal with page 51 to page 54, that's typed page 32. I want you to start to deal with this section from the middle of page 54, typed page 32 where it starts with "Instructions from the government", where you deal with Stratcom issues.
Page 54, typed page 32 Mr Chairman.
ADV GCABASHE: Just date this for us, give us a date, that paragraph - "The instructions from government", so 1980? Just give us a sense of when, when that would have happened.
MR BELLINGAN: I got that from the course I was on which was 1984 Mr Chairman.
"Instructions from the government were that Stratcom was far too important for any department to regard it as a secondary function. It had to be regarded as a priority and part of each department's line function.
Furthermore the following goals for Stratcom were given:
To motivate the internal population to adopt a positive attitude towards national goals;
to influence the international community to adopt a positive attitude towards South Africa;
to contain the hostile psychological attack against South Africa.
At the inaugural meeting of the Coordinating Committee of the State Security Council held on ..."
this date, it must be - it's the 19th of August, but '85 must be incorrect, because I received this in 1984.
"The Chairman said - 'The national situation is of such a nature that the welfare management system at this stage should act in a supportive role towards the security management system".
In other words the National Security Management System must be given priority over the national Welfare Management System.
"The government made huge demands on the Security Branch. We had a well-founded belief that the National Party could not run the country or even exist without us. Good Security Branch personnel were highly motivated and highly committed. We had to do more than simply that to which we were contractually bound.
I was not only heavily subjected to propaganda but was instrumental in creating of propaganda which countered the revolution and motivated the security forces. In many instances the propaganda I disseminated caused my colleagues to act. Some of these actions were gross violations of human rights.
For example I was responsible for the Children of the Storm series.
Operators did not merely do their work, they fought a secret war with heart and soul. It was a way of life, and it was common practice to act outside the legal system to succeed. There was a fanatical belief in the necessity of our cause".
MR DU PLESSIS: Mr Bellingan can you just stop there for a moment. You say it was common practice to act outside the legal system to succeed. Was that generally authorised or accepted by superiors?
MR BELLINGAN: It was accepted by customary practice but it went further than that in that, for example, on the course I was on at Daisy the instructions were that one had to do these things despite possible moral outrage etc, etc. (tape 2 ends) - the annexures that I have supplied.
MR DU PLESSIS: And ...(intervention)
ADV BOSMAN: Mr Bellingan excuse me for just coming in here. These things - it's rather vague, which "things" are you referring to?
MR BELLINGAN: Mr Chairman I am referring specifically here to unlawful activity which was covert activity of the Security Branch.
ADV BOSMAN: So it's once again collective to say "covert activity", was sort of activities?
MR BELLINGAN: In furtherance of the counter-revolutionary strategy or in furtherance of any of the objectives of the state.
ADV BOSMAN: I still have difficulty in that it's rather vague Mr Bellingan. Can't you be a little more specific about the type of activities?
MR BELLINGAN: Housebreaking, Mr Chairman, theft, arson, fraud, murder.
MR DU PLESSIS: Mr Bellingan to add to that would that include all the actions which you have sought amnesty for as set out in this thick bundle of applications you have made for amnesty?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: Not just the two we are dealing with today, namely the fraud in respect of Numsa and the murder of your wife, but all the other actions which were set out in your amnesty application as a whole.
MR BELLINGAN: That is correct Mr Chairman.
MR DU PLESSIS: And Mr Bellingan would that also include elimination of the activists?
MR BELLINGAN: Absolutely Mr Chairman.
MR DU PLESSIS: Alright. Could you please go ahead - the second last paragraph.
MR BELLINGAN: "Beside from usual practice and informal training the Intelligence in Stratcom courses I attended had an enormous effect on me. Some of my colleagues also received training in Israel and Taiwan. In many respects we modelled our actions on foreign intelligence services such as the KGB and Mossad as well as our specific enemy".
MR DU PLESSIS: And then Mr Bellingan there is an Afrikaans excerpt again which deals with the action of activists, do you agree with what is stated there?
MR BELLINGAN: That is correct Mr Chairman.
MR DU PLESSIS: Were those the actions which had to be countered?
MR BELLINGAN: Yes they were.
MR DU PLESSIS: Alright. Then you deal with covert intelligence employed by the Security Police and you deal in a lot of detail with the types of informers that you had, covert sources, covert recruitment, processes etc, I don't want you to go into detail in respect of that. Could you perhaps confirm the correctness of that part of your application up and until page 64, typed page 42. Do you confirm the correctness thereof?
MR BELLINGAN: I am just going through Mr Chairman. Yes I do Mr Chairman.
MR DU PLESSIS: Alright. Could we then start on page 65, page 43, "Orders", could you please deal with that.
MR BELLINGAN: "The command structure of the police was militaristic. The norm was disciplined acceptance of instructions. Lower ranks were commanded and controlled by senior ranks".
Of course I do mention further on that at times it was necessary for lower ranks to make decisions and as such it was permitted.
"I went directly from basic training to the Detective Branch which was less strict. Administrative matters were still controlled in a military / bureaucratic manner, but the work itself was delegated largely by the Criminal Procedure Act and the Police Act. Within this delegated authority own initiative in the investigation of cases was encouraged. The Security Branch was similar to the Detective Branch in the sense of the hierarchy for administrative matters and the delegated authority. However, the bounds of this authority were determined by legislation and political need. One's tasks were derived from instructions of a specific and of a general kind, as well as requests, hints, suggestions etc".
MR DU PLESSIS: Mr Bellingan these instructions, would that also include instructions to act unlawfully?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: To act outside the parameters of the legal system?
MR BELLINGAN: Yes.
MR DU PLESSIS: Alright. Could you carry on please.
MR BELLINGAN: "Training on covert courses, memoranda from headquarters, discussions at certain inter-departmental forums as well as formal and informal intra-organisation discussions all served, amongst other things, as sources of orders. To reach a level of trust and acceptance one soon learnt to respond to the full spectrum of these sources of tasks. The states of emergency also granted certain extraordinary powers which as an officer and a de facto section head I could make use of. Capable members of the Security Branch were also encouraged to use their own initiative to achieve the desired political ends. My perception was that to go places in this organisation one had to fully exploit one's powers and opportunities. If one could not do this one was not taken seriously in the Security Branch.
The official line of command structure in the Security Branch is that secret operations were carried out on the basis of an authoritative organisation implying a disciplined instruction acceptance of instructions. Lower ranks were commanded and controlled by senior ranks although decisions were often required on lower levels and as such were permitted. Because of the fluid nature of politics and the complicated, and I may add hostile work environment one often looked for precedent to guide one".
MR DU PLESSIS: Right. Mr Bellingan you have outlined the broad background to specifically unlawful illegal actions. What is your view pertaining to authority to act unlawfully? And let me clarify the question by asking you this. Would authorisation for such authority necessarily have had to come right from the top, from the generals or even from the State Security Council, or could lower ranks act on their own initiative? Was that authorised and was that ratified afterwards? Can you explain that.
MR BELLINGAN: Yes the instructions were often of a general kind and certain people were trusted more than others to use their initiative. That is how you made a name for yourself in the department. If somebody regularly messed something up, because it did happen Mr Chairman, it happened quite often that operations went wrong, if an operator messed things up regularly he just wouldn't be trusted to use his own initiative. He would have to work under supervision. But if somebody was competent in using initiative then one was trusted more and more and more in those type of situations. So that the general instructions would have been applied perhaps differently or with differentiation let me say.
MR DU PLESSIS: And Mr Bellingan when you killed your wife had you at that stage already known of this broad background authority, if I can put it like that, to security force actions and especially elimination?
MR BELLINGAN: Sorry, what was the question?
MR DU PLESSIS: When you killed your wife had you, at that stage, already known about this broad background of authority especially with reference to elimination?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: Had you known of instances where the security forces had been responsible for elimination of members of the liberation movements?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: Alright. We will get to that later in the evidence Mr Bellingan.
Right. Then there is also in Afrikaans paragraph page 67 and 68, typed 45 and 46 with reference to the death of activists and the elimination of activists, do you agree that that was the perception amongst the security force operatives?
MR BELLINGAN: That is correct Mr Chairman.
MR DU PLESSIS: And also in respect of what is stated there "Rassegrondslag", do you agree that the actions taken were not directed to a black/white conflict?
MR BELLINGAN: No that was not the ultimate intention, no, that is correct.
MR DU PLESSIS: Alright. Then the last paragraph, "Effek van die optredes van die veiligsheidpolisie", do you agree with that?
MR BELLINGAN: That is correct.
MR DU PLESSIS: Then the next section page 69, typed page 47 deals with Stratcom projects at head office, can you just deal with that. I will stop you if you have to leave something out.
MR BELLINGAN: "Head office - active units at head office, Security Branch.
During 1982/83 a psychological warfare as it was then called fell under Group F. It was in fact run by Unit F2, by Lieutenant Jaap van Jaarsveld and Lieutenant Basie Bouwer. The head at the time was Brigadier Joubert.
During approximately 1985 Stratcom fell under Group G. It was run by Unit G2 specifically, initially by Captain Basie Bouwer, then by Captain Louis van Niekerk. The head was Brigadier Herman Stadler.
In the early stages of development Stratcom's official task was complimentary to general security actions, in other words information - disinformation.
Later, the period '85, '86 to '91 it more-or-less had a life of its own via the budget and, when I say large projects, I mean on a national basis. During this latter stage it was decentralised, in other words each Security Branch region developed an intelligence unit with a Stratcom component. It should be noted that Stratcom was, throughout this time, also conducted on an ad hoc basis according to needs and opportunity in all the regions. Only from the late eighties was an effort made to coordinate Stratcom nationally in the Security Branch".
Of course the State Security Council, I think from a slightly earlier stage, attempted to coordinate nationally.
"It should also be noted that the SAP Security Branch was but one state department performing Stratcom functions.
2. Up until around 1985 the Security Branch had printing facilities at headquarters. That is directly at the Security Branch head office. This fell under Group D and the head was Brigadier Badenhorst. It was run then by Colonel J D Theron and Captain Jacques du Toit Hamman. This also performed covert tasks such as printing false SAP identity cards, fake student ID cards etc. Around 1986 this was transferred directly under the control of SAP head office with Brigadier Theron still in charge. They were then based in Rebecca Street near the Police College.
3. During 1983 the Security Branch Technical Unit fell under Group G. It was run by Unit G2 at that stage. Major Helberg used to run that. This unit supplied and built any technical device needed by the Security Branch. They later moved to the same building as the printing press in Rebecca Street near the Police College. And at that stage Major Wahl du Toit was in charge. They continued to fall under the Security Branch headquarters in terms of command.
In 1986 when I was transferred to headquarters Group G was structured as follows:"
MR DU PLESSIS: Right you don't have to go into that detail.
MR BELLINGAN: Okay.
MR DU PLESSIS: It is stated there. Then the next page, page 71.
MR BELLINGAN: "Point 5.
Around 1988 Stratcom moved away from Wagthuis, which was the Security Branch head office at the time, to Maritime House, which was basically a couple of blocks away. It fell under Group G with Brigadier Strydom who had been transferred up from Cape Town, and Brigadier Joubert being in charge of Stratcom and what they termed 'sensitive investigations'. Although they were based at headquarters Colonel MacIntyre was the operational head and he was with the rest of us in Stratcom Project Management at Maritime House.
At the same time Brigadier Stadler and the Intelligence Unit became Group D. This moved to Kudu Arcade to covert offices.
The first commanding officer at these premises was Colonel Erasmus. The second was Colonel Smith who came up from Bloemfontein. At first the function was intelligence coordinating and covert training. The staff consisted of people such as Major Oosthuizen, who had then been transferred from Witwatersrand; Major Vic MacPherson; Captain Piesang Nel etc. Towards the end of 1988 Colonel MacIntyre and some of the Group G Stratcom staff were transferred to other duties at headquarters. Some of the staff with appropriate experience were transferred from Stratcom to the new amalgamated Stratcom and Intelligence Units as I have mentioned.
I also mentioned some of the people that were transferred. Others, for example, Brigadier MacIntyre's nephew and Rolf Gevers were transferred I think to Koevoet at that stage, not Koevoet, to C Section. Pete Mogai came with me to Kudu Arcade".
MR DU PLESSIS: Alright. Mr Bellingan then at page 72 do you confirm the correctness thereof? That's typed page 50.
MR BELLINGAN: Yes I do.
MR DU PLESSIS: Alright. The next page page 73, typed page 51, "The general activities of the Security Branch", do I understand you correctly these are activities with which you were involved in, most of them, is that correct?
MR BELLINGAN: That's correct.
MR DU PLESSIS: Alright. Now Mr Bellingan it is important to give the Committee a background of the kind of operations you were involved in. It will appear later from your evidence why it is important, but it is important.
If I can perhaps just point out very shortly for purposes of the question what exactly did your wife, your deceased wife, Janine Bellingan know about your operations and the sensitivity thereof. Can we deal with the general activities on page 73, typed 51, can you start with that please.
MR BELLINGAN: "One of the typical Omega type operations, it was just a loose term given to the media at that stage, Mr Chairman, by the Security Branch in the period '82 to '86 was the stoning of Beyers-Naude's house. An ornate stained- glass window depicting the dove of peace at his home in Greenside was stoned".
MR DU PLESSIS: Alright. Could we deal with the second incident, second paragraph.
MR BELLINGAN: "Other actions were the attempted fire-bombing of Saths, Saths Xavian(?) Coopers' residence at Frankenwold, the premises of Wits University."
These are just examples.
MR DU PLESSIS: Alright, then can you deal with that, third paragraph please.
MR BELLINGAN: Sure. While we are on a conference a UDF activist was kidnapped or abducted from his house in Soweto where he was threatened. I think I had the name wrong. It was one of those. It could also have been Murphy Morobe, I can't remember anymore. It was in the media at the time.
MR DU PLESSIS: Alright, page 74, typed page 52, the first paragraph.
MR BELLINGAN: We had a lot of journalists working for us, some of them on the Rand Daily Mail. At the time the later Colonel or Brigadier John Horak was still undercover at the Rand Daily Mail. He was very active in the media, had been for about 20 years. I had some, three in fact, false front companies connected with the media, the alternate media as it were, in order to cast the net for information gathering as wide as possible. One was situated across the road from the South African Council of Churches. One was situated in Doornfontein, and one which was not initiated by me but which I was peripherally involved with, was situated in Zambezi House. That one was run in conjunction with head office. These were all very effective in false-flag recruitments.
MR DU PLESSIS: Mr Bellingan you have testified in more detail about this at the Khotso/Cosatu House hearings, is that correct?
MR BELLINGAN: That's correct Mr Chairman.
MR DU PLESSIS: Alright. Can you deal with the last paragraph on typed page 52, page 74.
MR BELLINGAN: "The last mentioned operation run in conjunction with head office which I was involved in in the beginning was Operation Olivetti. It was basically a revival of a, as I understood it, of a national intelligence front called Fitzgerald & Associates. Offices were set up in Zambezi House, in conjunction, if I remember correctly, with Colonel Vic MacPherson from head office. One of the white journalists was later blown. She was placed at this operation and she was incarcerated in Africa by the ANC".
And the significance of that I say will emerge at a later point.
MR DU PLESSIS: Right, let's deal a little bit more with this, in more detail with this Mr Bellingan. In respect of this operation is there a document which you have in respect of the Operation Olivetti which refers to the Operation and the contents of the Operation? Is that the document on page 84 of Bundle 3.1?
MR BELLINGAN: That is correct Mr Chairman.
MR DU PLESSIS: We will come back to that in the evidence Mr Bellingan.
Can you just quickly and very shortly explain that document, what it is about.
MR BELLINGAN: This is the original handwritten motivation for Operation Olivetti.
MR DU PLESSIS: Was this a very sensitive operation?
MR BELLINGAN: It was highly sensitive Mr Chairman.
MR DU PLESSIS: And Mr Bellingan did the fact that Olivia Forsyth was eventually caught and incarcerated in an ANC prison, what was the effect on the security forces of that?
MR BELLINGAN: It was a blow to the operation. The operation was then obviously blown at head office. Not only that in the interrogation of this particular agent the handlers and profiles of them and the type of work that the security branch was performing was obviously exposed. So aside from the risk of death to Ms Forsyth there was the obvious problem of exposure of Security Branch operations in the wider sense as well.
MR DU PLESSIS: Did you have personal knowledge of this operation?
MR BELLINGAN: Yes I did Mr Chairman.
MR DU PLESSIS: Alright. Can we turn to page 75, typed page 53, can you deal with the first paragraph there please.
MR BELLINGAN: I refer here to a more shallow media front in Doornfontein. At one stage we had a Iranian working for us who also worked for the Iranian National News Agency. Of course he did not know where we were working. It was a false-flag operation. I understand that he was later arrested for sabotage. So these were really revolutionary people that we were working with. One had to be careful.
MR DU PLESSIS: Mr Bellingan could you turn to page 76, typed page 54, the first paragraph there.
MR BELLINGAN: Sorry Mr Chairman the name of that other one was Alternate Media Services, it is somewhere in here. Anyway...
"At the time I left Witwatersrand Security Branch there were 40 telephone lines available on the 10th Floor which was referred to there as Operation 394, and on a national basis as Operation WH11. All that was necessary was that contacts at the Post Office could link us via the exchange and automatically we could hook any telephone or telex at that stage in the Witwatersrand. Some were legitimately arranged by the necessary motivation to the Postmaster General, for example the South African Council of Churches' telex. Others were done under the Random Clause which simply gave us permission to do spot checks. So we could do spot checks on somebody for some time before you felt the need. Each day one hour tape recording would then be made available for listening or transcription. Counter-espionage needs also dictated that Security Branch members and other state employees' phones were sometimes listened to. Operation WWR395 was referred to as WH10 on a national level. This was interception of post. At that stage a register was kept of all funds coming into South Africa to radical or liberal organisations. Such incoming funds were intercepted on occasion".
I just mention here in passing that a member of National Intelligence was always present when letters were steamed open. I have absolutely no knowledge whether National Intelligence was aware of any of the interception operations however.
"When I was working at Maritime House with Colonel MacIntyre we used to collect from Operation WH11 postcards of sympathisers of the struggle, European sympathisers and Colonel MacIntyre had asked me to reply back to them asking for them to send money, and this would then be intercepted as well. I don't have any more knowledge of that particular operation. I just responded as such".
MR DU PLESSIS: Right. Mr Bellingan in respect of the Operation WH10, can I refer you Mr Chairman to Bundle 4, page 1 thereof. It is an affidavit of a Major Charl Petrus van der Merwe, do you recognise this document Mr Bellingan?
MR BELLINGAN: Yes I do Mr Chairman.
MR DU PLESSIS: Do you have knowledge of this document?
MR BELLINGAN: Yes I do.
MR DU PLESSIS: Can you in short explain to the Committee what this affidavit states and do you agree with the contents thereof?
MR BELLINGAN: Basically Mr Chairman this confirms what I was saying about Operation WH10, which was post interception. The document goes further and I think this is Major van der Merwe, was prepared to elaborate on the activities of one of the desks at head office which was called the Library, and who were instrumental in collecting cheques for the Stratcom unit. He basically just sets out his duties over there. The fact that the Generals were aware of this. The fact that - his command structure; the fact that the commanding officer was Colonel Horak; the fact that post was also received from Johannesburg Security Branch. They had the biggest capability in the country because of the airport post going to them as well. So they also cooperated with this operation, the post interception of the cheques.
MR DU PLESSIS: Right. Can I just stop you there Mr Bellingan. Did the Numsa operation that you were involved in, did that form part of WH10?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: Could we deal in Bundle 4, page 2, with paragraph 7. Could you just read it out and tell the Committee if you agree with that.
MR BELLINGAN: Paragraph 7 reads
"When the WH10 operation originated is not known to me. What I do know is that it was an official project which was known to the entire Security Branch and enjoyed high priority as an information source".
MR DU PLESSIS: Do you agree with that?
MR BELLINGAN: Yes that's correct.
MR DU PLESSIS: Go to page, page 3, the first paragraph.
MR BELLINGAN: "The WH10 project can be described as an official secret project with the objective of gathering information and capacity of other ideological enemies of the state which was communicated by means of the letter and package postal system and then intercepted. This was then used to the disadvantage of the opponents and to the advantage of the state. This project originated when I joined the branch in 1983 and when I started working at the Library in 1987 it was still an official project.
With my transfer to the Security Branch at Pietersburg in 1989 the project was still up and running. Even later at the end of 1991 when I left the Security Branch in Pietersburg this project was still in use'.
MR DU PLESSIS: Paragraph 8, the last sentence that starts with the word "Waarskynlik".
MR BELLINGAN: "Probably the most definitive action was the interception of all forms of payment, chiefly cheques, from certain organisations and persons such as those mentioned here above".
MR DU PLESSIS: Then next page, page 4, paragraph 10, there is reference of organisations of which cheques were intercepted, did you know these organisations?
MR BELLINGAN: Yes Mr Chairman.
MR DU PLESSIS: Were you involved in any of these, the interception of cheques of any of these organisations?
MR BELLINGAN: Congress of South African Trade Unions Mr Chairman. There were others too, but I know specifically of the Cosatu affiliate, Numsa.
MR DU PLESSIS: Alright. And then if you could turn to page 6 please, paragraph 15. Could you just read that paragraph.
MR BELLINGAN: "It is my personal experience that this WH10 project was not a project which was created by individuals or managed by individuals, but that it was an initiative of the top structure and the operatives on ground level were merely the ones who executed this project. It is necessarily so that abuse for personal advantage would have been a risk, something which could only be avoided by means of a healthy managerial system".
MR DU PLESSIS: The affidavit you have read through it?
MR BELLINGAN: Yes I have Mr Chairman.
MR DU PLESSIS: And you agree with the rest of the affidavit as well?
MR BELLINGAN: Yes I do.
MR DU PLESSIS: Alright. Could we, Mr Chairman I see it is one minute past four already.
CHAIRPERSON: Do you intend to deal with a new matter?
MR DU PLESSIS: Mr Chairman yes, I intend to go on with the background evidence tomorrow or whenever you - I can go on now as well.
CHAIRPERSON: No, we can deal with that tomorrow. We are adjourning the proceedings at this stage until nine o'clock tomorrow morning when we will resume the hearing. We are adjourned until tomorrow.
HEARING ADJOURNS
