Amnesty Hearings

ON RESUMPTION

MR MEINTJIES: Mr Meintjies for Mr Van Jaarsveld. Before we proceed, I would ask you to give my client the opportunity to make a short statement to the Committee, thank you.

CHAIRPERSON: Of what value is that statement going to be, is he going to do it on oath?

MR MEINTJIES: Mr Chairman, it is not in connection with the incident, it is more to do with the fact that he was granted leave on Friday, not to attend the hearing.

CHAIRPERSON: Yes Mr Van Jaarsveld, you may proceed.

MR VAN JAARSVELD: Chairperson, before we begin these proceedings today, I would like to thank you on behalf of myself and my family for excusing me from the proceedings on Friday.

It was of great value to my family by way of support, as my father's oldest child, to support him in his final hours. I thank you.

ADV DE JAGER: Mr Van Jaarsveld, I infer that your father has in fact passed away?

MR VAN JAARSVELD: That is correct Chairperson.

ADV DE JAGER: On behalf of the Amnesty Committee, I would like to express our sympathy and we wish you strength and endurance.

MR VAN JAARSVELD: Thank you Mr Chairman.

CHAIRPERSON: Yes Mr Meintjies?

MR MEINTJIES: If the witness can be sworn in Mr Chairman.

JAKOB JAN HENDRIK VAN JAARSVELD: (sworn states)

CHAIRPERSON: Yes, please proceed.

EXAMINATION BY MR MEINTJIES: Thank you Mr Chair. Mr Van Jaarsveld, you have given the general motivation with regard to the death of Mr and Mrs Ribeiro in your application.

This is also of application to this application, correct?

MR VAN JAARSVELD: Yes, that is correct.

ADV DE JAGER: You are referring to his application in Bundle 7, page 78 - 87 and 121?

MR MEINTJIES: Yes, and the evidence which was given before this Committee with regard to the Ribeiro matter.

ADV DE JAGER: Do you have any references for that?

MR MEINTJIES: Unfortunately not, it was viva voce evidence.

ADV DE JAGER: But if you could give us a reference to that somewhere in the Bundle, we would be very grateful.

MR MEINTJIES: It was viva voce evidence which was delivered before this Committee, and we have no written record of that as of yet.

ADV DE JAGER: Oh, are you referring to last week's evidence?

MR MEINTJIES: Yes, that is correct.

ADV DE JAGER: Not the first matter?

MR MEINTJIES: Correct. Mr Van Jaarsveld, if we may proceed, you were informed regarding the evidence of other applicants in this matter, to the effect that the political motivation for the murder of Ntuli resided in the fact that his actions, destabilised KwaNdebele and made it virtually ungovernable?

MR VAN JAARSVELD: Yes, that is correct.

MR MEINTJIES: Secondly that this caused in effect that the objectives of the ANC and other liberation movements were promoted?

MR VAN JAARSVELD: Yes, that is correct.

MR MEINTJIES: And that KwaNdebele stabilised to a certain extent after the death of Ntuli?

MR VAN JAARSVELD: Yes, that is correct.

MR MEINTJIES: And you confirm this also as part of your evidence here?

MR VAN JAARSVELD: Yes, that is correct.

MR MEINTJIES: Mr Van Jaarsveld, I would then like to take you to a day in 1987, upon which a meeting took place among the Security Officers of the Northern Transvaal Security Police during which Ntuli was discussed. Can you submit to the Committee what was discussed there?

MR VAN JAARSVELD: Chairperson, on that particular day, it was a Friday, we had our usual weekly Officers' meeting. Mr Kendall who was the Branch Commander at Bronkhorstspruit at that point, gave input with regard to the problems which Piet Ntuli, the then Minister of the KwaNdebele government, was giving to the South African government.

Before that occasion, he had been discussed on various occasions during these meetings, especially with regard to his involvement in the Mbukoto movement in KwaNdebele.

MR MEINTJIES: Mr Van Jaarsveld, according to your experience, what happened as a result of this input which was delivered by Mr Kendall?

MR VAN JAARSVELD: On that particular Friday morning, after the discussion had taken place, Brigadier Cronje picked up his phone and called somebody. My suspicion is that it was a senior Officer at the Security Head Office. Shortly thereafter he left the meeting, we went ahead with other matters and after a while, he returned.

He simply stated that Piet Ntuli was to be taken out. CHAIRPERSON: Were those his exact words?

MR VAN JAARSVELD: Chairperson, that is how I remember it, yes.

CHAIRPERSON: And you understood what that meant?

MR VAN JAARSVELD: That is correct Chairperson, it meant that an operation was to be executed to eliminate or remove him, in other words as we have heard on various occasions before the Committee, it meant to kill him.

CHAIRPERSON: Yes.

MR MEINTJIES: Were specific orders issued on that day?

MR VAN JAARSVELD: Brigadier Cronje then told me to send Jacques Hechter to him after the meeting, which I did and approximately a week later, Jacques Hechter and I were informed that an operation was under way surrounding Piet Ntuli and that I was responsible for logistical support.

CHAIRPERSON: Yes, please proceed.

MR MEINTJIES: What actions did you take in this regard Mr Van Jaarsveld?

MR VAN JAARSVELD: Chairperson, I then prepared a vehicle which we had by providing false number plates and additional radio's for the purposes of communication.

MR MEINTJIES: Can you proceed and tell the Committee about the events of the day of Mr Piet Ntuli's death?

MR VAN JAARSVELD: Myself, Jacques Hechter and Brigadier Cronje left that morning from Pretoria Security Branch, in a minibus, the one which I had prepared the day before, we left for KwaNdebele.

Upon our departure, the pre-prepared bomb which was to fit a Toyota Cressida, the type of vehicle which was used by Ntuli, was taken with us.

MR MEINTJIES: You may proceed.

MR VAN JAARSVELD: Upon our arrival in KwaNdebele, we went to the government offices and we saw Piet Ntuli's vehicle in front of the offices.

At that stage, there were too many people moving around, and the area was too open, and seeing as we did not know when Mr Ntuli would come out of the building, we decided to withdraw instead.

We then departed from that point, and drove around in the area near the government offices so that when Mr Ntuli would drive out of the gate with his vehicle, we would be able to spot him and follow him.

CHAIRPERSON: Yes?

MR VAN JAARSVELD: Later Chris Kendall joined us. I can't recall exactly when and where, as well as Deon Gouws and Andre Oosthuizen. We received information from Chris Kendall that Ntuli would be attending a meeting later on that afternoon at the government offices, and we then decided to monitor Piet Ntuli's vehicle, should he drive anywhere.

Near the government offices' gate we stopped under a tree from which point the gate was clearly visible and easy to monitor.

MR MEINTJIES: Which actions followed after this, Mr Van Jaarsveld?

MR VAN JAARSVELD: Chris Kendall later that evening, it was twilight I recall, went with Jacques Hechter and Brigadier Cronje in Chris Kendall's vehicle, it was decided that they would meet Simon Skosana. Myself, Deon Gouws and Andre Oosthuizen remained behind at the minibus.

Upon their departure, Jacques took the bomb along with them.

MR MEINTJIES: It appears from your amnesty application, that there is a measure of confusion surrounding Deon Gouws. Can you give any further explanatory evidence regarding that for the Committee?

MR VAN JAARSVELD: Yes. I will also say at this stage that it is possible that Deon Gouws went along with Chris Kendall, Hechter and Cronje and that only Oosthuizen remained behind with me.

CHAIRPERSON: When you say he remained behind, where did he remain?

MR VAN JAARSVELD: Chairperson, Oosthuizen and I remained behind at the minibus, where we were standing underneath a tree so that we could monitor the gate.

CHAIRPERSON: Yes?

MR MEINTJIES: Did Messrs Kendall, Hechter and the others return to the minibus?

MR VAN JAARSVELD: After quite a while they returned. I recall that I drove the minibus, Brigadier Cronje sat in front, on the left, while Gouws and the others sat behind us.

I recall that while Jacques Hechter was handing over the switch to Cronje, I saw that the switch had a 30 second time delay mechanism. I can't recall whether Jacques Hechter also climbed into the vehicle.

Cronje then handed the switches to Oosthuizen and Gouws to activate.

CHAIRPERSON: Just kindly repeat the names, who were given the switches?

MR VAN JAARSVELD: Chairperson, it was Messrs Andre Oosthuizen and Deon Gouws.

CHAIRPERSON: Yes?

MR MEINTJIES: What happened next?

MR VAN JAARSVELD: Later Piet Ntuli drove through the gate with his vehicle, it was clearly visible to us seeing as the government buildings and the gate and the guards were clearly visible to us from our point of observation. He turned left out of the gate and turned left into the first street.

As he turned, the switches were activated. Shortly afterwards, we heard an explosion and saw a red glow in the sky.

MR MEINTJIES: What did the group of people in the minibus do, after the explosion?

MR VAN JAARSVELD: After the explosion we departed immediately in the opposite direction as that in which Piet Ntuli had driven away. We went to the camp where Brigadiers Van Wyk, Oosthuizen and Gouws resided.

MR MEINTJIES: You may proceed.

MR VAN JAARSVELD: At the camp we met Brigadier Van Wyk and informed him regarding what had taken place, upon which Brigadier Van Wyk and the others went to the scene of the explosion.

It was decided that I should depart for Pretoria in the minibus immediately. I took all the equipment with me and Brigadier Van Wyk was according to my opinion, completely involved in what happened on that particular day.

JUDGE KHAMPEPE: What do you mean when you say in your opinion Brigadier Van Wyk was completely involved in the operation? Can you throw some further light?

MR VAN JAARSVELD: Chairperson yes, completely involved, I think he was more completely informed regarding what happened there, because when we climbed out of the vehicle, we spoke to him, it was no surprise to him and the fact that some of his people had been deployed for the operation, would indicate that he had to have been completely informed.

That was the assumption which I drew at that stage.

JUDGE KHAMPEPE: So your assumption is based on the fact that his people were involved in the operation? That is the basis of your assumption?

MR VAN JAARSVELD: That is correct.

JUDGE KHAMPEPE: Yes, you may proceed Mr Meintjies.

MR MEINTJIES: Is there any further information which you can provide to the Committee regarding the incident, Mr Van Jaarsveld?

MR VAN JAARSVELD: Chairperson, I am completely aware of the fact that the bomb was manufactured by Special Forces. Regarding discussions with Jacques Hechter, I found that the bomb fitted perfectly and that there no problems in attaching the bomb to the car.

MR MEINTJIES: I have no further questions at this stage, Mr Chairman.

NO FURTHER QUESTIONS BY MR MEINTJIES

CHAIRPERSON: Any questions from interested parties to this witness?

CROSS-EXAMINATION BY MR POLSEN: Thank you Mr Chairman, one question if I may. Mr Van Jaarsveld, after you had arrived at the minibus and driven out of the ministerial residence, was Brigadier Kendall with you at that stage?

MR VAN JAARSVELD: Yes, we never went into the ministerial residence in the minibus.

MR POLSEN: After Kendall and the others had returned from the Chief Minister's residence with Hechter and Cronje, did they stop there by you at the minibus?

MR VAN JAARSVELD: That is correct.

MR POLSEN: And at which stage did Kendall depart?

MR VAN JAARSVELD: If I recall correctly, he would have departed within those few minutes after which the people disembarked from his vehicle and re-embarked into the minibus.

MR POLSEN: So he went directly back to Bronkhorstspruit as per his evidence?

MR VAN JAARSVELD: I don't know whether he gave that evidence, but he did depart.

MR POLSEN: Thank you.

NO FURTHER QUESTIONS BY MR POLSEN

CROSS-EXAMINATION BY MR ROSSOUW: Thank you Mr Chairman, Mr Rossouw on record. Mr Van Jaarsveld, with regard to this matter, you have stated that you made the assumption that Brigadier Van Wyk was completely aware of this operation, is that correct?

MR VAN JAARSVELD: Yes, that is correct.

MR ROSSOUW: At the stage when Mr Oosthuizen and Mr Gouws joined you, was it strange to you that two members of another unit would be involved in the operation?

MR VAN JAARSVELD: No, not at all.

MR ROSSOUW: And what is the reason for that?

MR VAN JAARSVELD: It was not the first operation in which they had assisted us with operational execution of orders.

MR ROSSOUW: Was there co-operation between the Security Branch and other units of the South African Police?

MR VAN JAARSVELD: Definitely so.

MR ROSSOUW: Did you know that these two gentlemen were members of the Investigative Team in KwaNdebele in the unrest areas?

MR VAN JAARSVELD: Yes.

MR ROSSOUW: Was there close co-operation between their team there and the Security Branch of the Northern Transvaal?

MR VAN JAARSVELD: Very close co-operation.

MR ROSSOUW: Did you know that on a regular basis, they liaised and conveyed intelligence and received orders from Brigadier Cronje and Captain Hechter?

MR VAN JAARSVELD: That is correct, I did know that.

MR ROSSOUW: So would you say that their involvement in this case, was a result of the issuing of orders?

MR VAN JAARSVELD: Yes, that is correct.

MR ROSSOUW: From Captain Hechter and Brigadier Cronje?

MR VAN JAARSVELD: From the Security Branch, Northern Transvaal yes.

MR ROSSOUW: Would you say according to your opinion - I beg your pardon, what was your rank at that stage?

MR VAN JAARSVELD: Captain.

MR ROSSOUW: They were subordinate Officers. As an Officer, would you say that they were in a position to question the orders of Captain Hechter and Brigadier Cronje?

MR VAN JAARSVELD: Chairperson, it has been said at various occasions before this Committee with regard to the chain of command in the Police, that subordinate Officers would never question senior Officers.

MR ROSSOUW: You have stated that when Brigadier Van Wyk received a report back after that time, he was not surprised. Let me just understand you correctly, you have said that your inference was that he knew about the fact that the Police, the South African Police, was involved in this operation? He wasn't simply informed that an explosion had taken place and that his Investigative Team was to investigate it?

MR VAN JAARSVELD: No, he definitely knew about it, and he was not simply informed about an explosion that had taken place.

MR ROSSOUW: Were you present when a discussion took place earlier on that day between Brigadier Van Wyk and Brigadier Cronje and Captain Hechter at the Waterworks camp where this Investigative Unit had been stationed?

MR VAN JAARSVELD: It is very problematic for me to think that they could have been there earlier that day, because we had spent the whole day together.

MR ROSSOUW: You were not here, but that was the evidence of Messrs Gouws and Oosthuizen. Thank you very much.

NO FURTHER QUESTIONS BY MR ROSSOUW

CHAIRPERSON: Ms Lockhat, do you have any questions to put to this witness?

CROSS-EXAMINATION BY MS LOCKHAT: Just one question Chairperson. When you refer to, in the Bundle, at page 86 and in your evidence as well, you said we informed Brigadier Van Wyk regarding the incident basically. Who is the we that you are referring to?

MR VAN JAARSVELD: When we arrived at the camp where they were stationed as the Investigative Team, we stopped the vehicle and Brigadier Van Wyk came to the vehicle. Brigadier Cronje, myself, Oosthuizen and Gouws climbed out of the vehicle and we walked to him. That is the us that I am talking about.

MS LOCKHAT: So Gouws was with you when you informed Brigadier Van Wyk, is that correct?

MR VAN JAARSVELD: The four of us were together when Brigadier Van Wyk was informed.

MS LOCKHAT: So he heard about the conversation and he knew exactly what you were informing Van Wyk about, Gouws that is?

MR VAN JAARSVELD: That is correct.

CHAIRPERSON: It was yourself, Gouws and who else?

MR VAN JAARSVELD: Mr Chairperson, Brigadier Jack Cronje, myself, Andre Oosthuizen and Deon Gouws.

MS LOCKHAT: So Oosthuizen was also involved, he knew exactly what you were informing Brigadier Van Wyk about?

MR VAN JAARSVELD: That is correct, yes.

MS LOCKHAT: One other question, Mr Kendall, you said he was present at a meeting whereby he informed you regarding the activities of Piet Ntuli, is that right?

MR VAN JAARSVELD: That is correct.

MS LOCKHAT: What did he inform you about?

MR VAN JAARSVELD: Chairperson, as I have said earlier, it was our weekly meeting at the Security Branch in Transvaal, where we discussed information about the region, so that everybody knew. It was not the first time that information was given about Mr Piet Ntuli or the Mbukoto movement. But it was discussed there.

CHAIRPERSON: The question was not that, the question was what did Kendall inform the meeting?

MR VAN JAARSVELD: Regarding the activities of Mr Piet Ntuli and the Mbukoto movement.

MS LOCKHAT: Was Mr Kendall involved in the planning of the operation, did he know about the details of what was expected of him?

MR VAN JAARSVELD: Chairperson, I don't believe so. I don't believe that Mr Kendall was involved with the detailed planning.

MS LOCKHAT: So would you say on that specific day, the 29th of July, that he met you per accident, Cronje, Hechter and the rest, where he pointed out where Piet Ntuli was?

MR VAN JAARSVELD: I had the impression on that day that contact was made with Chris Kendall and that he was requested to come to Siyabuswa.

MS LOCKHAT: Do you know who made this contact with Kendall?

MR VAN JAARSVELD: It would have been one of two persons, Chairperson, either Brigadier Cronje or Captain Hechter.

MS LOCKHAT: Thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you.

JUDGE KHAMPEPE: Sorry Chairperson, I just wanted to clear something emanating from the questions put to you by Ms Lockhat, particularly with regard to your impression that Brigadier Van Wyk was completely aware of the involvement of Mr Gouws and Oosthuizen.

We have already heard evidence from both Mr Gouws and Mr Oosthuizen that they thought it was important for them to keep their involvement in the Ntuli operation, secret even from Brigadier Van Wyk.

In the light of what you are saying, do you think it would have been conceivable for Brigadier Cronje to have kept the orders issued to both Mr Oosthuizen and Mr Gouws, from Brigadier Van Wyk?

MR VAN JAARSVELD: Chairperson, as I have said earlier, for operational purposes and co-operation between the different units within the Police, Mr Oosthuizen and Gouws were deployed to the Security Branch and then in Siyabuswa at that stage, were attached to the Investigative Unit and I doubt if Brigadier Cronje would not inform Brigadier Van Wyk as to what he was using his people for the day.

FURTHER CROSS-EXAMINATION BY MR POLSEN: Mr Chairman, I know this may be out of order, but may I be allowed to ask one question arising from the questions put by Judge Khampepe?

CHAIRPERSON: Yes, please do so.

MR POLSEN: Thank you Mr Chairman. Mr Van Jaarsveld, you said that there was contact with Brigadier Kendall and that was the reason why he arrived there while you were having your braai. The evidence of Brigadier Kendall was that he arrived there coincidentally, because he was driving around with one De Beer with the planning of the establishment of a Branch, would you accept that evidence?

MR VAN JAARSVELD: Mr Chairperson, we were not just having a braaiing the meat, one had to eat also. That was the first thing.

The second thing, it could be that Mr Kendall arrived there coincidentally.

MR POLSEN: Thank you.

NO FURTHER QUESTIONS BY MR POLSEN

CHAIRPERSON: Any further questions in re-examination?

FURTHER CROSS-EXAMINATION BY MR ROSSOUW: Sorry Mr Chairman, may I be allowed to ask a couple of questions flowing from the questions by Ms Lockhat?

CHAIRPERSON: Please proceed.

MR ROSSOUW: Thank you Mr Chairman. Mr Van Jaarsveld, you were not present on Friday when Oosthuizen and Gouws gave evidence, but their evidence was that they cannot say that they reported back to, or any report was given back to Brigadier Van Wyk, because they did not report back to him, and Mr Oosthuizen said that he cannot recall if they went back to Pretoria from where you had the braai, or they went back to Waterworks. He cannot recall correctly, that was his evidence and his evidence is also he can't remember whether a report was given back to Brigadier Van Wyk.

Is it possible that they were not present when the report was given back to Brigadier Van Wyk by Brigadier Cronje?

MR VAN JAARSVELD: Chairperson, as I have said earlier, they departed from the scene with us, they did not have a vehicle there. I don't know how they would have gotten to their place otherwise. That is the first thing.

Secondly, when we went into the camp, we stopped and Brigadier Van Wyk came walking to us. All four of us got out of the vehicle and we walked up to him.

MR ROSSOUW: But you cannot say if they could have heard what the report was that was given?

MR VAN JAARSVELD: The question regarding the whole report, we all stood in one group speaking to him.

MR ROSSOUW: For sure, I would assume then that he would have been informed then that a bomb explosion had taken place.

At that stage it was not said to him, but you remember that we planned this operation and it has now been executed?

MR VAN JAARSVELD: No Chairperson, the specific words and I want to remember the words, the operation was successful and Piet Ntuli had been taken out.

MR ROSSOUW: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR MEINTJIES: I have no questions in re-examination, Mr Chairman.

NO RE-EXAMINATION BY MR MEINTJIES

CHAIRPERSON: I understand, thank you very much. You are excused.

MR VAN JAARSVELD: Thank you Mr Chairman.

MS LOCKHAT: Chairperson, that concludes the evidence in the Piet Ntuli incident.

MR GROBLER: Mr Chairman, you will recall that I undertook to furnish you the date of the document relating to Trevits which is in Bundle 2(I).

MS LOCKHAT: 2(I).

MR GROBLER: I thank Ms Lockhat, Mr Chairman. That is the document marked L on pages 156 - 163. Mr Chairman, that document was part of the agenda of a meeting of the "Koordinerende Intelligensie Komitee (Bedryf)" of 4 February 1987.

CHAIRPERSON: Thank you.

JUDGE KHAMPEPE: Mr Meintjies, I am about to scuttle the proceedings, I forgot to ask Captain Van Jaarsveld about something which I think is quite important and that is the period in which this incident took place. I mean the more we hear evidence, each applicant is coming with his own period in which this incident happened.

He seems to be quite clear that the incident happened during a particular period and a particular day, he mentions that it was specifically a Friday, maybe we can find out if he is certain about the year that he says the incident happened in.

He is taking us to 1987, whereas in the previous evidence that we had, the first group of applicant, the Cronje applicants, and the other applicants that we have heard in respect of this matter, have estimated the incident to have happened around July 1986 and he is saying this thing happened during 1987.

He seems to be more precise with regard to time, can we just canvass that. Captain Van Jaarsveld, are you sure this incident happened during 1987?

MR VAN JAARSVELD: Chairperson, I am relying on my memory. At this stage I am convinced that it was 1987.

JUDGE KHAMPEPE: Yes, you see Mr Kendall also was able to give us the date, month and year, and he says the incident happened on the 29th of July 1986.

MR VAN JAARSVELD: Chairperson, since he was the Commander of the Security Branch there, he would have kept a diary of the incidents, and I cannot doubt his date is wrong, and that mine is right.

JUDGE KHAMPEPE: Thank you, I just wanted to clear that aspect.

MR DU PLESSIS: Mr Chairman, may I please in the light of Mr Grobler's statement to you of the date of that document, just ask Captain Van Jaarsveld one question, which may become important in future and which I want to clear up now while Captain Van Jaarsveld is testifying?

CHAIRPERSON: Yes.

MR DU PLESSIS: Captain Van Jaarsveld, you have knowledge of Trevits and the establishment of Trevits?

MR VAN JAARSVELD: That is correct Chairperson.

MR DU PLESSIS: And would you tell the Committee, the organisation Trevits if that was the organisation which preceded Trevits, was that before the date that Mr Grobler gave in 1987?

MR VAN JAARSVELD: Chairperson, in my possession I have documents and I know that these documents have been handed up before you previously, it is marked Confidential. This was National Interpretation, dated 15 March 1985 and on page number or Roman number (iii), in paragraph 11, it is said that for the purposes of counter revolutionary strategy, I centre will be established which will be for tactical purposes.

The provision and monitoring of inter-departmental action task teams and they said they cannot do without it. After these documents appeared and if the information guide for the counter revolutionary strategy of the government has been given out, Trevits was established then. And Trevits was already operational at the end of 1985.

MR DU PLESSIS: Thank you Mr Chairman, I don't have any further questions pertaining to that, I just wanted to clear that fact up so that there is no misunderstanding about that, and especially the evidence of my clients, pertaining to Trevits and the importance of Trevits.

CHAIRPERSON: Very well, thank you very much. Mr Van Jaarsveld, you are excused.

MR VAN JAARSVELD: Thank you Mr Chairperson.

WITNESS EXCUSED

ON RESUMPTION

CHAIRPERSON: Very well, where do we start?

MR GROBLER IN ARGUMENT: Mr Chairman, seeing that I started leading evidence first, I should also start arguing first.

CHAIRPERSON: I think it will be appropriate if you will do so.

MR GROBLER: Mr Chairman, may I with your permission, hand up short Heads. If you will just give me a moment Mr Chairman, while the Heads are being handed up.

CHAIRPERSON: Thank you very much.

MR GROBLER: Mr Chairman, I must apologise, it seems there is one copy short, I will arrange for another copy to be made.

CHAIRPERSON: Right.

MR GROBLER: Mr Chairman, on page 1 we have again identified where in the documents you will find the application of Gen Joubert.

ADV DE JAGER: Mr Grobler, the heading, in the application of Abraham Johannes Mouton Joubert I believe it should be.

MR GROBLER: It should be Joubert, Mr Chairman, I apologise for that.

Mr Chairman, looking at the evidence from a macro view point, my submission to you is that all the evidence shows that Gen Joubert has on the basis of a common purpose, committed the following crimes: In respect of the Nietverdiendt 10, murder, in respect of Piet Ntuli, murder and in respect of Dr and Mrs Ribeiro, murder.

Mr Chairman, I say this because Gen Joubert was initially the person who devised what we have now termed the Joubert plan. In each and every case, he gave an instruction whether to carry out the operation or to give assistance, knowing that somebody was going to die. He made available what was necessary to carry out that intention, and therefore, on the basis of his own intention, no matter who carried out the actual operation, Gen Joubert would then be guilty of murder.

Mr Chairman, although one could identify lesser criminal acts such as incitement to commit murder, example the meeting with Cronje and Moller, or aiding and abetting murder, those lesser offences were only part of the preparations leading to the final result and I quote with respect in footnote 1 from Burchal and Hunt, unfortunately Mr Chairman, over the weekend, I did not have the newer edition of it, but I submit that what I have quoted is still good law, where it says where the accused's solicitation results in the commission of a crime by the incitee, he should not be charged with the incitement, but rather with the crime itself, as a principal or as a socius criminis.

A person who has been charged with an convicted of the commission of a crime, cannot be separately charged with and convicted of having incited others to commit that crime.

Now Mr Chairman, that leads me to what I submit would be an order in this matter, if I do indeed convince you that amnesty should be granted to Gen Joubert.

In paragraph 1.5 Mr Chairman, my submission is that any doubt or ambiguity could be eliminated by framing the order as follows, in terms of Section 20(1) of the Promotion of National Unity and Reconciliation Act, the applicant is granted amnesty against all criminal or civil response liability in respect of and arising from (a) the murder of the ten ANC activists at Nietverdiendt, on or about the 26th of June 1986; the murder of Piet Ntuli at Siyabuswa, KwaNdebele on the 29th of July 1986; the murder of Fabian Ribeiro and Florence Ribeiro at Mamelodi on the 1st of December 1986; any acts of preparation, incitement, conspiring, aiding or abetting in the aforesaid murders and any acts as an accessory after the fact in respect of the aforesaid murders.

Mr Chairman, if I may then turn to the more specific matters. At page 3, paragraph 2, Mr Chairman, Section 18(1) of the Act makes provision for the application for amnesty. It has been quoted in the footnote simply as a matter of convenience and to the extent Mr Chairman, that Section 18(1) is relevant before you, we submit that the application and you will recall two applications, filed by Gen Joubert, were both submitted timeously and in the prescribed form.

As far as Section 19(1) is concerned, which is also quoted in the footnote, there was a request for further information relating to the Nietverdiendt 10 incident. That information has been given and we submit that there has also been full compliance with Section 19(1) therefore.

Mr Chairman, the basic issues are those raised by Section 20(1) of the Act, and more particularly and I am just outlining the wider issues, whether the acts were acts associated with a political objective, whether the acts were committed in the course of the conflicts of the past and whether the applicant has made full disclosure of all facts.

Mr Chairman, on page 4 I have started off the argument with the question whether or not these acts were committed in the course of the conflicts of the past because the question of political issue is really one that encompasses a lot of the other evidence and once we have dealt with the other issues, it is easier to deal with that.

Mr Chairman, the terms conflicts of the past has not been defined in the Act, but nevertheless one knows by now from all the evidence led before this Commission, that nobody has any doubt that this relates to the political conflict in the period since 1 March 1960 until the cut off date, unfortunately at the moment, I am not sure what that cut off date was, it was not of importance at the time when the preparation was done, because we knew that these acts fell squarely within that time period.

Mr Chairman, we make the submission that you can take notice, judicial notice of the fact that the ANC was a major role player in that war. This Committee has already heard evidence and found as a fact, that there was a full scale revolutionary war in South Africa during the 1980's, and for that Mr Chairman, we refer to the ruling of this Committee in the Cronje matter, on pages 223 in Bundle 1.

The applicant has confirmed the existence of that war, and has given details of the intensity and nature thereof. Mr Chairman, for that - Bundle 3 if you will just bear with me for one moment, Mr Chairman, I just want to make sure that I know what I was quoting to you there. Oh yes, Mr Chairman, that was part of the application that I was quoting to you.

Mr Chairman, what I am referring you to is Gen Joubert's affidavit where he dealt with the political climate at the time, where he says that the struggle that was carried on at the time, had a military character which could not be denied.

It escalated to a point where violence from both sides, and by all the role players became the norm. Where very often, even innocent people were affected. He says every party that committed violence, saw justification for that violence in his own eyes.

Mr Chairman, I submit with respect, with the wisdom that one now has, after having heard all this evidence, that that is a correct statement.

Then Mr Chairman, we have referred you to various parts of the evidence placed before you by the South African Defence Force, the (indistinct) point, if I may for one moment refer you to some of the passages, they are all contained on page, that is sub-page 13 of the affidavit.

Mr Chairman, the point is made that the ANC and for that matter, it includes all the liberation movements, Mr Chairman, followed a plan of violence in this country. My respectful submission to you is that there could not be any doubt whatsoever regarding the correctness of that.

It also says that the intensity of that violence by and again the ANC was blamed, is set out on pages 23 - 24 of the ...

ADV DE JAGER: Mr Grobler, I think we are in agreement that there was a conflict, a struggle between the liberation movements and the government representatives on the one side. I think you should perhaps concentrate on the involvement of the victims. Can you say - we know there was a struggle, but to what extent have they been involved as opposite parties?

For instance it comes to mind that the role of Piet Ntuli, he wasn't a member of the ANC.

MR GROBLER: Yes Mr Chairman, if your Committee is satisfied that these acts were committed during the conflict of the past, regardless of anything else, then I need not dwell on this point.

ADV DE JAGER: But it was during that period that many other murders were committed during that period, which (indistinct) politically related?

MR GROBLER: Yes Mr Chairman. Ultimately this is a question which one has to answer once you have considered all the evidence.

I am just pointing out at this stage to you where my argument is leading to and then in the end, I will ask you to make a - Mr Chairman, paragraph 4.5 makes exactly the point which you have now made, that timewise, yes, all these incidents occurred during that period.

Mr Chairman, then I deal with political objective and political objective, one finds on two spheres. You find that in Section 20(2) and then again in (3), but Mr Chairman, as far as 20(2) is concerned, all these acts applied for by the applicant, constitute offences and delicts. They were all planned and ordered and committed within the Republic of South Africa as it now exists between the 1st of March 1960 and the cut off date, we say with respect, that therefore we have satisfied that respect.

There is no doubt that the applicant was at all times a member of the Security Forces and as such, he has a dual capacity if one may call it that, under Section 20(2)(b) because he was also an employee of the State.

Mr Chairman, the next point that I have to satisfy you on, is the question whether or not these acts which he committed, were ordered or committed in the course and scope of his duties, or within the implied course and scope or authority which he had.

For that Mr Chairman, we say that that question should be answered by looking at the following facts: Gen Joubert was a Commander of Special Forces. It is a unit which was specifically created to perform covert and clandestine operations initially outside the borders of the RSA, and you will find that in his application.

Then came the widening of the Defence Force functions to support the SAP internally and the extension of the state of emergency.

The next major point is the instruction given to him in his capacity as the Commander General of Special Forces, by Gen Geldenhuys. Mr Chairman, I will later point out to you that at the Armed Forces Hearing in Cape Town, there was some misunderstanding about what that instruction was.

But the instruction on Gen Joubert's evidence is that Gen Geldenhuys told him to make a plan on how Special Forces could cooperate with the Police closer, bring closer co-operation in the course of the war that was going on.

Now, following that, Gen Joubert then devised his plan. But Mr Chairman, the point that I wish to make is that instruction given to the Commanding General of Special Forces, at the time when it was acknowledged by each and everybody concerned that the liberation movements could not be contained through conventional methods, and that what Gen Joubert calls revolutionary methods, would have to be employed to make, to support the Police, could produce only one result.

Mr Chairman, I use the Afrikaans expression, a good concept only requires half a word. It follows as a matter of logic Mr Chairman, that that instruction to Gen Joubert in his capacity as the Commanding Officer of Special Forces, would result in a Special Forces type of plan.

CHAIRPERSON: I would just like to interrupt you at this stage for clarification for myself.

Are you satisfied on the evidence that what Gen Geldenhuys did, was in fact to give instructions or did he merely express approval of a general discussion about a plan?

MR GROBLER: Mr Chairman, my case is no higher that he gave approval of a plan, perhaps not completely understanding what that plan entailed, but I would like to deal with that because I am now moving on to that.

CHAIRPERSON: Good.

MR GROBLER: And onto the Armed Forces Hearing.

JUDGE KHAMPEPE: Mr Grobler, I hope when you move on, you will be able to tell us exactly about this plan, because the way I am understanding your submission is that the plan was basically to devise a plan that would facilitate co-operation between the South African Defence Force on the one hand, and the South African Police on the other hand.

MR GROBLER: Yes Mr Chairman, that was the instruction initially and you will recall that it is part of Gen Joubert's application that what he then devised, was a plan in terms whereof Special Forces would cooperate with the South African Police, targets would be identified, sought out and eliminated and Special Forces would act in an assisting capacity to the Police to eliminate those targets because Special Forces had the means of carrying out the operations, whilst the Police had the information which was necessary to identify the targets.

The evidence coming from Gen Joubert's application and from his own verbal evidence, was that he then went, that he then met Gen Geldenhuys at a social function, that he gave an outline of that plan and that Gen Geldenhuys approved what he did, what he told him.

Gen Joubert's evidence, as I understand it, is that he informed Gen Geldenhuys that people would actually be killed.

ADV DE JAGER: Mr Grobler, the mere fact that Special Forces were instructed to assist the Police, not Infantry, not all the other units in the Defence Force, but Special Forces which was a highly trained combating unit, they were the striking force of the South African Defence Force as was put, their task was in fact to attack people and as soldiers, even to go behind the lines and fight people and kill people.

MR GROBLER: You are absolutely right.

ADV DE JAGER: (Microphone not on)

MR GROBLER: Mr Chairman, I thought I had made the point, but perhaps I did not make it as clearly as I should. That is highly significant Mr Chairman, that is where I used the expression, a good concept needs half a word.

If you instruct your Commander of Special Forces, a unit such as you have described, to make a plan, Mr Chairman, there is no doubt that you are instructing him to carry out or to make a plan of a Special Forces type operation.

If it was a plan simply to cooperate closer in putting up roadblocks, it made no sense whatsoever. That you could instruct the Infantry or the Commando's to do. You don't instruct Special Forces to make this kind of plan if you don't have a very special plan indeed in your own mind.

Mr Chairman, again, we are in a situation where obviously people understanding each other, or thinking that they understand each other, do not necessarily speak or discuss all the details. Being both military men, I submit to you with respect that a lot will be understood without it being said very clearly, or without it being said specifically.

But, Mr Chairman, Gen Geldenhuys made the concession at the Armed Forces Hearing that he gave an instruction to Gen Joubert, to make a plan for closer co-operation. He didn't say what he told Gen Joubert or that he told Gen Joubert to make a plan to kill people, and Gen Joubert never said that, but they are in agreement that there was that discussion.

Then comes the next point at the Armed Forces Hearing, and I at this stage won't read from it because at the end, I think one should read more, where Gen Geldenhuys also concedes that there was this contact between him and Gen Joubert and a discussion at the social function where he says that Gen Joubert mentioned to him a plan. It wasn't a plan in its full details and he concedes that Gen Joubert could have understood that as authority to continue with his plan, which Gen Joubert says included the seeking out of people and killing them.

Now Mr Chairman, then one has a situation where at some or other stage, Gen Geldenhuys becomes aware of the fact that Special Forces were involved in the killing of the Ribeiro's.

We have at that stage a complete lack of disciplinary action against Gen Joubert, despite Gen Geldenhuys' knowledge, and we have as a next step, the concession by Gen Geldenhuys, which is also the evidence of Gen Joubert, that Gen Geldenhuys did not stop that whole plan, but put in place a different procedure, one in terms of which he would have to give the final approval for an operation.

JUDGE KHAMPEPE: Where does that appear Mr Grobler?

MR GROBLER: I am about to take you to that Mr Chairman, if I may. If I ask you to go to Bundle 2(K). Mr Chairman, I will also ask you to bear in mind that the cross-examination of Gen Geldenhuys unfortunately contained a number of inherent assumptions which I submit were not correct, but nevertheless, that does not detract from the submissions that I wish to make to you.

The relevant parts start at page 163 of the Armed Forces Hearing, that is Bundle 2(K) Mr Chairman.

Mr Chairman, I do not intend to take you to Gen Joubert's evidence for the simple reason that Gen Joubert has given that evidence before you, I am now referring you to confirmation coming from Gen Geldenhuys' evidence.

On page 163 Mr Chairman, we have this, Mr Goosen is cross-examining. Gen Geldenhuys, let me then cut through to the evidence of Gen Joubert, earlier today was that he had received an instruction to formulate a plan in terms of which support could be provided by Special Forces to the South African Police for deployment inside the country in unconventional or using unconventional or revolutionary methods. Now those words, in unconventional or using unconventional or revolutionary methods, Mr Chairman, were the result of Gen Joubert's plan.

To that extent, the question is not entirely correct. Did you provide such instruction to Gen Joubert or not? Mr Chairman, I told Gen Joubert he must prepare himself to give effective support to the Police when needed.

And I need not go any further on his evidence. Your learned co- - I beg your pardon, Mr De Jager, made the point, when you give an order like that to Special Forces, it means something.

Then slightly lower down on that page, and Gen Joubert said he had to work out a plan about how he would provide his support to the Police. We go along with that. Then Mr Goosen, so the short answer is yes? Yes, you did, you did give such an instruction to Gen Joubert and the concession is, yes Mr Chairman.

Mr Chairman, then comes the part where Gen Geldenhuys' evidence about Gen Joubert's plan. Thank you, and you heard today the evidence of Gen Joubert that he formulated a plan which involved the use of Special Forces in unconventional and also covert methods and also the methods, the revolutionary methods employed against the Security Forces?

Now Mr Chairman, may I just at this point interrupt myself by saying that Gen Geldenhuys at that stage was not a stranger to the way in which Special Forces operated. After all, he is the Chief of the Defence Force and he knows what his men are doing.

If I may ask you to turn the page over, there was then an objection from Mr Coetzee and then Mr Goosen says this: You heard the evidence that he formulated the plan along those lines, was that plan ever submitted to you for approval? Gen Geldenhuys says no, Mr Chairman, but may I ask you what stage, please remind me at what stage did he say that they should use revolutionary methods, is that correct?

Then comes if you go down about five lines, where Mr Goosen is again talking and he says, no, I will read you the passage where he says in the middle of the 1980's, it was clear that the assault could not be met - page 5, paragraph 2.5.1, that this could not be met by conventional methods and that it became necessary for the Security Forces to use unconventional and revolutionary methods.

Gen Geldenhuys says, I saw that. Then says Mr Goosen, would you agree or firstly let me ask you this, was a plan setting out the deployment on unconventional and also using revolutionary methods, presented to you at any stage and Gen Geldenhuys says, Mr Chairman, there wasn't an operational plan as such presented to me.

Regarding this paragraph, it is quite a subjective view which Gen Joubert should answer himself. Mr Chairman, regarding the plan, I must then ask you to go to page 166 because there is a bit of a discussion in between which I will later come back to, but on the second paragraph of page 166, and I see it was included in paragraph 12.9 - that is Gen Geldenhuys speaking with reference to Gen Joubert's application - and I see that it was included in paragraph 12.9 but I don't want to quibble about it. I agree the thinking was about how to adapt to the various strategies and tactics being employed and that any effective possibility, conventional or unconventional could be used to counter this threat. I agree with this.

Mr Chairman, with due respect, I think it is a concession correctly made by Gen Geldenhuys. One cannot doubt that, but that is exactly the point that I am arguing to you. Again, Mr Goosen speaks, Gen Joubert in his testimony indicates that part of the unconventional methods used, would also have been, was contemplated, the identification of specific targets for elimination, meaning killing, would you agree that that was contemplated at the time?

Mr Chairman, I am reading the exact words. You could see that they do not always make good sense, be that as it may, Gen Geldenhuys says this, Mr Chairman, we are talking about a Defence Force and we are talking about war. That people were going to die and that people were going to shoot each other, was something that I accepted.

Regarding me, as far as I can judge, there is a difference between killing and cold blooded murder as an illegal act. Again Mr Goosen says, the essence of Gen Joubert's evidence was that he understood that he had been given an instruction to formulate the plan which involved also the elimination, the identification of people and the elimination of those people, the killing of those people inside the country.

That was the (indistinct) of his evidence. Would you say that Gen Joubert interpreting your instruction to him, was acting reasonably in his understanding of that interpretation or not? Mr Chairman, Mr Goosen was at that stage reading perhaps more into Gen Joubert's evidence than what Gen Joubert actually said.

But, he is voicing the argument which I am putting to you today, or submitting to you today. That is what Gen Joubert understood in those words. And says Gen Geldenhuys, quite fairly, Mr Chairman, how Gen Joubert understood me, is something you should not ask me, you should ask him.

But says Mr Goosen, that is not the question. The question is seeking to establish from you, now that you have heard his evidence, and I think we have all heard his evidence, and I think in fact there were statements that were put to Gen Joubert by your Advocate, we want Mr Coetzee - doesn't make sense - if he can only be allowed to testify - oh, I see, there must have been an interruption, the question continues, now what the question seeks to say to you is that you heard his evidence, he says I understood him that is being Gen Geldenhuys, when he made a typical remark for instance to be saying, this is your authority, I am putting it crudely.

Of course, he did qualify his reply by saying well, it may well be that, you know, but that is not what he meant. But that is what I understood him to be saying, he was giving authority to do certain things.

Now what he wants to know is now, what he wants to know is, now that he says so, do you consider his understanding to have been reasonable or not, in the circumstances?

That was the Chairman at that stage speaking, is it the sort of thing that a reasonable person should have understood from you and it is a reasonable Commander in the Special Forces of the South African Defence Force understanding a specific remark, made by the Chief of the South African Defence Force? Mr Chairman, if I may again interrupt myself, you will recall Gen Joubert's evidence was that once he had told Gen Geldenhuys what he intended doing, Gen Geldenhuys said it sounds good.

I am returning to the record and I quote, what he seeks to know is, he says so, he says I understood him to be saying so. What he wants to know, was that in your view a reasonable understanding of what you were conveying to him?

Mr Chairman, then Gen Geldenhuys speaks, but at the end of the next paragraph we find these words from him, he says - it was a social function, it is something that happened 11 years ago, and I don't want to give a judgment whether or not he made a reasonable conclusion. I think it is unreasonable for me to expect to answer that.

At that stage, he is a bit reluctant to give an answer. Mr Chairman, if I may now take you to page 170. If you go down the page, until you first find Gen Geldenhuys' evidence, they are still dealing with this question on whether or not Gen Joubert could reasonably have understood him to grant approval of this plan.

Here he says Mr Chairman, my answer is as follows, Gen Joubert could make his own conclusions from what I have meant, but I did not authorise those actions. And then lower down Mr Chairman, Mr Goosen still cross-examines and then comes Gen Geldenhuys, Mr Chairman, when Gen Joubert discussed this with me during the occasion, he referred to and I gave him an answer, there was no operational plan in place, including these type of actions.

His plan at that stage did not boil down to more than the fact that he would use people from Special Forces and would provide them to the South African Police to support them during operations and request by the South African Police.

Mr Chairman, I interrupt at this stage, simply to ask this questions, now in what other way could Special Forces have supported the Police? It was not explained as it was done here during this hearing today. He said himself that he shortly explained this plan to me, and that is why I am saying this shortly refers to how the men would be allocated in commands to support the Police and I said it sounded good.

Afterwards, according to Gen Joubert's own version, other procedures took place, other things happened in the development of his plan. Mr Chairman, sorry, I wish to take you to page - yes, on there, and then it is Mr Goosen, Gen Geldenhuys, I didn't ask you whether he presented a plan, whether it was the same plan that was testified here today, whether you approved the plan or whether you didn't approve the plan, I asked you whether on the basis of the testimony given today, the plan he says he prepared, that he says he presented to you, whether we can come to that just now, but the plan that he had prepared, was that a reasonable plan or not, that is the question?

Now Mr Chairman, there were interruptions and objections and I ask you to go to page 172, second line, I am reading again from the evidence, Mr Chairman, I have read Gen Joubert's application. That he described what his perception was regarding the situation and the methods required in the situation.

If he understood it like he conveyed it today, I can understand retrospectively that he could have reasonably interpreted it like that, based on his frame of reference. Then says Mr Goosen, so I take it then that you are in fact saying that on the basis of his testimony, that it was a plan reasonably thought out by him at the time? He says, yes Mr Chairman.

And then thank you, now he testified that he indicated that he had had presented the plan to you and you had approved it in the manner in which he set out in his amnesty application. Do I understand from the answer that you gave, when you were not answering the previous question, that you agree that he did present you a plan but not necessarily a plan in terms of which he has given evidence today?

In other words that it involved the elimination of individuals, but a plan - somebody corrects me saying that it did not - it is not on the record Mr Chairman, but perhaps that correction should be there, let's read it as it is for the moment, but the plan for the deployment of Special Forces in support of the South African Police, did he present such a plan to you?

Mr Chairman, we can go to page 173 and I pick up on the top of the page - no let me read the full sentence - Mr Chairman, I am being asked a question about something which has happened during a social occasion 11 years ago, and I really can't give any specific particulars that I have already said which I can remember about that plan.

It was no detailed operational plan as we usually used to do that, but it was a plan regarding the allocation of men from the Special Forces to various commands to the South African Police.

Mr Chairman, I ask you to skip one paragraph and go down, that is Goosen speaking, but he stated in his evidence that certain operations were in fact carried out in accordance with the plan that he formulated. He further testified that at a certain point, it was established that the proper authorisation as he had envisaged, had not been obtained from the South African Police and in consequence thereof, a discussion then ensued about the putting into place of a procedure to do with the approval of such operations.

Mr Chairman, just to put that into perspective, you will recall Gen Joubert's evidence that he was asked by Gen Coetzee after the Ribeiro murders, why Special Forces had not informed him that they were going to kill the Ribeiro's.

It is that which Mr Goosen was referring to.

Do you agree with him that there was in fact such a discussion about putting into place an appropriate procedure to deal with such operations? Yes Mr Chairman, that is the answer coming from Gen Geldenhuys.

And do you also agree with him that the discussion about that procedure followed as a consequence of it coming to your attention that a particular operation which involved the elimination of an individual, had been carried out? Over on page 174 he says yes, Mr Chairman.

So I take it from that, that an operation involving Special Forces people inside the country and involving the elimination, the killing of an individual had been carried out and that came to your attention subsequent to that operation, and that in consequence thereof, you then moved to set up a procedure to deal with those situations.

Is that correct? I have already said so Mr Chairman. That is his evidence.

Mr Chairman, if you will just bear with me for one moment, I don't want to read unnecessary things, I just want to make sure that I have read everything that should be read.

CHAIRPERSON: If you are going to move on to some other aspect of your argument, we might consider adjourning at this stage?

MR GROBLER: It is a convenient stage Mr Chairman.

CHAIRPERSON: Yes, very well, we will adjourn for 15 minutes.

MS LOCKHAT: Please stand.

COMMITTEE ADJOURNS

ADV DE JAGER: If I understand it correctly, that besides whether Gen Geldenhuys approved it or not, your client believed that it was approved? He had believed that it was approved and if that is your submission, then we have that submission, we take note of it because we have seen the references, so you can continue to the specific offences.

MR GROBLER: I thank you Chairperson. May I just add one point, you will recall that if you have regard to the Heads, paragraph 5.3.7 and 5.3.8 - Mr Chairman, paragraphs 5.3.7 and 5.3.8 are really facts which came after the event. They cannot prove the event itself, but they can shed a light.

CHAIRPERSON: Actually that amounts to argument and not fact, isn't it?

MR GROBLER: As you please Mr Chairman. Mr Chairman, I will make the submission then that the inference is inescapable that the applicant was doing exactly what everybody was expecting him to do and that he was acting within the course and scope of his duties and within the scope of his authority.

Mr Chairman, just briefly, I refer to the decision in Veltman v Mall, a part of the judgment ...

CHAIRPERSON: No relation.

MR GROBLER: A part of the judgment of His Lordship, Mr Justice Greenberg, I must point out Mr Chairman, that this was the dissenting judgment from which this is quoted, but it has been quoted since then, in other authorities in the Supreme Court of Appeal. It has never been stated to be wrong, that summary, where it says a master as opposed to an employer for an independent contractor, is liable even for the acts which he has not authorised provided that they are so connected with the acts which he has authorised, that they may rightly be regarded as modes although improper modes of doing.

Mr Chairman, my submission to you is that Gen Joubert has on all the facts, succeeded in proving that he was acting within the course and scope of his authority as the law understands it.

Mr Chairman, paragraph 5.5 all the applicant's actions were directed against the liberation movements or political parties - my apologies, I notice that there are some parts of the typing which is smaller than the rest, it is accidental, there is no meaning to be attached to that - more in particular, the ANC which was a publicly known political organisation or a liberation movement, engaged in the political struggle against the State and against members or supporters of those movements.

Mr Chairman, although in these proceedings the Nietverdiendt 10 were not specifically stated to be members or supporters of any particular movement or party, persons described as activists and their activities, have always been associated with the ANC or the broad concept of the liberation movements.

There is no evidence before you indicating a different situation, and that their conduct was part of the conduct of a liberation movement, I submit cannot be doubted at this stage.

JUDGE KHAMPEPE: Mr Grobler, are you probably not doing yourself a disservice in that the evidence before us indicates that the young persons intended to go for training with MK, which is known to be an ANC outfit?

MR GROBLER: I thank you Judge Khampepe. I overlooked that evidence, if that is the evidence, then indeed the point is made.

I was unfortunately relying on notes which are not always the proper notes, and I didn't want to read too much in those notes, but I thank you very much.

The Ribeiro's, Mr Chairman, were clearly supporters of all liberation movements, that comes from their son's evidence in Bundle 2(F), pages 524, line 30 to 525, line 9.

Mr Chairman, Mr Ntuli we know in retrospect was incorrectly associated with the ANC by Gen Joubert. However, if one reads Cronje's evidence, Ntuli's conduct was in line with that of the liberation movements, and the Mbokoto appears to have been a publicly known political movement on its own.

I submit with respect Mr Chairman, that the incorrect association that Gen Joubert made between Ntuli and the ANC, is not of any real consequence. Let's for the moment accept that he knew it was Mbokoto. He would have known what Ntuli did, because Cronje would have told him that.

His conclusion would have been the same, that the man is destabilising the country and what is more important is, he would have relied on Cronje when Cronje says that Ntuli was doing the work of the ANC.

Mr Chairman, I have also promised you that I would show you a piece of the record where Cronje says that he regarded Ntuli as the ANC. May I refer you to Annexure A which is attached to the Heads of argument, it is again Mr Chairman, an extract taken from the Internet part of the record and if you go down the page, it is page 560, the last sentence there Cronje says, that is just before the word question, this confirmed my suspicion that Piet Ntuli was in fact working for the ANC, and just higher up he says he was convinced that Piet Ntuli was a double agent.

Mr Chairman, that would have been the information conveyed to Gen Joubert. I submit with respect that the mistaken association cannot be held against Gen Joubert, that was a reasonable interpretation of what Cronje would have told him, and on Cronje's evidence, Piet Ntuli was in fact the leader of a political organisation, aimed at destabilising the country for and supporting the revolutionary goal.

Mr Chairman, the applicant's sole object was to counter or resist the struggle, that he says. And there is no evidence to suggest the contrary or even to doubt his version.

I now go to the more detailed parts of the test for political objective. Section 20(3)(a), the applicant's undisputed motive was (a) to stop or resist the liberation movements. Now, if I may refer you to his application you will see that although he mentions the ANC by name, he does not limit himself to the ANC. He in fact refers to the liberation movements in the plural.

Again coming back to Piet Ntuli, this is part of my argument then also to you to say that whether he knew Piet Ntuli to be a member of Mbokoto or the ANC, it would have made no difference and it cannot be prejudicial to his application.

Secondly to perform his duties as a soldier, and thirdly to support the government in a battle for survival. Section 20(3)(b), the applicant's acts occurred in the context of a full scale revolutionary war which you have already found, where the government of the day and the Security Forces could on all the common cause evidence, no longer control the situation by means of conventional and legal methods.

That evidence has been given before this Committee by each and every person that has applied. It cannot be seriously doubted any more.

Section 20(3)(c) that is dealing with the gravity of the offence. Mr Chairman, murder is a most serious offence, it is an offence which is difficult to forgive, but yet we say it must be remembered that the times at that stage were different, values were distorted on both sides, and I would like to quote Gen Geldenhuys again where he says, we are talking about war, that people were going to die and that people were going to shoot each other, which was something which I accepted.

Mr Chairman, however tragic it was, that was the reality of the situation.

Section 20(3)(d), each and every act was committed, ordered or sanctioned by the applicant and had the object of stopping or resisting the liberation movements in the struggle and were directed against the opponents of the State.

His evidence is clear, it has not been disputed and there is no reason to doubt the inherent quality of that evidence.

Section 20(3)(e) is not applicable, and then when I get to (f), the acts committed by the applicant were directly related to the objective to resist the liberation movements and were as it was seen then, necessitated by the existing military situation.

Death was seen as a means of avoiding more deaths. You get that from his application, and he also makes the point in his application Mr Chairman, that personal gain or malice played no part.

May I point out for what perhaps unnecessarily, but the applicant did not know any of the victims in this matter. The applicant's position was that of a Commanding General having given an order and later giving authority to carry out his order from time to time.

There is nothing in that which presents malice.

ADV DE JAGER: I don't think you should address us on the question of personal malice or personal gain. I don't think there is any evidence pointing to that.

MR GROBLER: Mr Chairman, then finally I have to deal with the question of full disclosure.

I do not intend to take you to each and every bit of his evidence. You would have noticed that Gen Joubert really knows very little of the exact details in which these operations were carried out.

Mr Chairman, there is nothing strange about that, being in the position in which he was. For that he obviously has to rely on what people like Naude, Verster and the members of the Police have told you, and he accepts their versions of what happened on sight.

Mr Chairman, he has not attempted to minimise his role in these tragic events. He has openly stated that the plan to seek out and kill activists, leaders, supporters and key persons in the liberation movements, was his brain child.

I emphasise, he is not saying that it was Gen Geldenhuys' brain child, he says it is my brain child. I told Gen Geldenhuys about it and he authorised the continuation.

He has not been contradicted in any respect which could label his disclosure as anything but a full disclosure. Mr Chairman, may I just make one point, before I go on to the next thing, you will recall the Trevits document that was put before you. The only relevance of that document for the purpose of my argument Mr Chairman, is that if one reads that document, it becomes very clear from it, that Trevits basically functioned under Chairmanship of the South African Police.

For other purpose, you need not read that. What is important is that Gen Joubert does not rely on Trevits' identification of targets as support for his own conclusion that people or, no let me put it differently, you will recall that Cronje in his evidence before you, placed the responsibility for the identification of the targets every time on Trevits. That is not what Gen Joubert does.

Gen Joubert says the targets were identified by myself, Gen Moller and Brigadier Cronje at a meeting. He assumes that responsibility without laying any of the blame before Trevits, except to the extent that Trevits gave information from which the various units then had to decide what their action should be.

But he says the action which was taken, was my responsibility. It is not a Trevits responsibility.

Now, you may have some difficulty about the fact that Cronje never mentioned in his evidence to you, this meeting which he had with Gen Joubert. Mr Chairman, to a certain extent I must also speculate, but having read Cronje and Hechter's evidence, and having heard this morning that Trevits has been operating since the end of 1985, I would like to submit to you that it is a reasonable inference that Cronje has had information coming to him from Trevits and from his senior Officers for quite some time.

By the time Gen Joubert put his plan into operation, and held this meeting with Cronje and Gen Moller, Trevits on Cronje's evidence, had already identified activists, not by name, but by function, the Ribeiro's and Ntuli as so-called targets.

ADV DE JAGER: Mr Grobler, it is common cause that the Police and the Special Forces worked together in some or other respect. In each and every one of the incidents involved here, there was always a member of the Police Force and a member of the Special Forces involved in the same incidents, whether they were sort of on the periphery or whether they were involved in the actual fact, but they worked together in each and every one of the occasions we have been dealing here with.

There must have been and I think it has been conceded that there were meetings between the Defence Force and the - what actually happened at all those meetings, we don't know and we don't know whether there is agreement on that, but that there was co-operation, I think is a fact that we must accept.

MR GROBLER: I thank you Mr Chairman, you are with respect quite correct when you say that there were meetings, etc. My concern was that you might view this as a material discrepancy in all the evidence before you and it might cause you some concern. If it does not, then nothing arises from that, because my submission to you would have been that it is no real or no serious discrepancy, it is something which may simply not have been important to Cronje.

JUDGE KHAMPEPE: Mr Grobler, it may not be so with regard to my colleague, but it is quite something that has caused me serious anxiety with regard to this particular piece of evidence.

I consider this to be of some material aspect. We know that according to Gen Joubert's evidence, there were approximately about 25 meetings which happened between himself and Brigadier Cronje. We also know from the evidence given by Brigadier Cronje that there was never a meeting wherein he on behalf of the Security Police, identified the Ribeiro's, nor Mr Ntuli.

How is that capable of being reconciled with the way you are now seeking to do?

MR GROBLER: Mr Chairman, if I may take it step by step, yes, there were meetings but I think one should bear in mind that meetings took place at various levels.

What Naude was telling you about was meetings at his level, and the Cronje level. The meeting Gen Joubert told you about, was a meeting at a higher level, where initially the plan was given down to Cronje and Moller and the targets were identified. That is the meeting which Cronje did not tell you about, Cronje did not tell you about.

It appears as if it might be a contradiction. My submission to you is no, it is not a contradiction and with due respect Mr Chairman, I now have to repeat this argument. If we look at the evidence and the way in which Hechter and Cronje presented it, they both had had information which somehow was Trevits related, which somehow identified these people as targets.

They had that information from the top and from the bottom. Now, there were many meetings. What I am arguing to you is that perhaps this meeting with Gen Joubert was not a milestone in Cronje's memory of how things took place. That might explain why he either overlooked it or just forgot about this meeting.

Other than that, I cannot explain it to you and there is no reason why Gen Joubert would at this stage say to you I had this meeting with Cronje and there is no purpose that can be achieved by that.

Next comes the question, yes, you are absolutely correct Judge Khampepe, Cronje did not identify Mrs Ribeiro. That evidence came from Hechter himself. Hechter was very adamant that Mrs Ribeiro was as actively involved as her husband.

Now bearing in mind that Cronje's memory appears not to have been what it should have been, there is no reason to accept that Cronje would not have received his information from Hechter, giving it upwards and also getting it downwards again.

So, we don't know if Cronje had to give evidence today about that meeting with Gen Joubert, what he would have said. What I do argue to you is he would probably have given Gen Joubert the information which Hechter had given about Mrs Ribeiro and about Ntuli.

So, Mr Chairman, on the probabilities my submission to you is that Gen Joubert was in fact informed that Ntuli and Ribeiro's were all three of them, involved in the struggle. He has said in so many words, he said they were always mentioned in the same breath.

He associated the three of them.

ADV DE JAGER: Yes, Mr Grobler, Cronje accompanied the Task Force to eliminate the KwaNdebele 10, he was there himself. He knew that Special Forces is participating.

As far as Ntuli is concerned, he knew that the bomb was coming from Special Forces. In some way or other, he must have known that there was this connection for those two incidents.

As far as the Ribeiro's are concerned, he says he knows nothing about the involvement and that sort of thing. But his own people have tried to kill the Ribeiro's twice before this operation was carried out? He wasn't involved maybe in the two previous attempts, but his own people acted in order to kill him, the Ribeiro's.

MR GROBLER: You are absolutely correct Mr Chairman, and the question was put to me as I understood it, to say that there appears to be a serious contradiction which worries Judge Khampepe.

On the record, without making certain, drawing certain inferences, yes, there does appear to be a contradiction.

JUDGE KHAMPEPE: Particularly with regard to the Ribeiro elimination.

MR GROBLER: Indeed so Mr Chairman. But with due respect, I think Mr De Jager summed it up quite correctly. If you look at the involvement of all Cronje's own people, if you look at his own involvement, there cannot be any doubt that he knew very well that Special Forces and the Police were working together and if there hadn't been this plan, which was discussed with him, although I must say he did say that he was told from above by Brigadier Schoon and Viktor I think, that he should work closer with Special Forces, and he said he understood that to be information that people were now going to die.

Why he did not mention this, I cannot give you a final answer. What I am asking you is to find that there is no contradiction which would allow you to reject Gen Joubert's evidence on the basis of it not being true.

CHAIRPERSON: You know whether Cronje knew about it or not, does that affect the outcome on whether amnesty should be granted to Gen Joubert or not?

MR GROBLER: No Mr Chairman, with due respect not.

CHAIRPERSON: You see, in the commission of the actual offence, Cronje was represented in the sense that his trusted Lieutenants or Lieutenant at least, his right hand man if I may put it that way, was in it, right in the midst of all these activities, namely Hechter.

Whether Cronje knew the details or not, it might be an interesting point to debate, but on whether amnesty should be refused or granted on the basis whether Cronje knew or did not know, is hardly a point.

MR GROBLER: Again Mr Chairman, with due respect, I submit you are correct, but I was dealing with this point from the perspective of full disclosure.

CHAIRPERSON: I understand.

MR GROBLER: And purely on that issue, it might have been relevant.

JUDGE KHAMPEPE: Yes.

MR GROBLER: As far as amnesty itself is concerned, it is not relevant, it doesn't really matter.

Mr Chairman, finally in paragraph 7 we submit that the applicant's version is supported by the other applicants and by other sources and evidence and by the probabilities.

There is nothing inherently unacceptable about his evidence. The existing security situation was exactly the kind of situation which could lead to these results and there is sufficient support for the applicant's version in the evidence of Gen Geldenhuys to accept the applicant's version without having to label Gen Geldenhuys as a liar and I do not wish to.

I want to be very clear, I am not saying he is a liar, what I am saying is there is enough support in his version to say the applicant must be telling the truth. I respectfully submit that the applicant has complied with all the requirements for amnesty and I therefore ask you to grant amnesty as set out in paragraph 1.5 of my Heads of argument. I thank you Mr Chairman.

CHAIRPERSON: Thank you. Mr Grobler, thank you, thank you very much for your Heads, the Committee will no doubt find them very useful when it has to consider the decision in this matter.

Mr Visser, are you involved at this stage or is it too early for you?

MR VISSER IN ARGUMENT: Mr Chairman, yes, I am involved in the Nietverdiendt matter, and peripherally in the Ribeiro matter, on behalf of the victim, of the implicated person, Gen Coetzee and then also in the Ntuli matter, very, very obliquely on behalf of Gen Wandrag.

CHAIRPERSON: I want to tell you that we don't want to hear argument on behalf of implicated persons.

MR VISSER: Yes. That is the only point we have made in our argument.

Mr Chairman, if you want me to go ahead now, it is convenient and we will ask you to receive from us, written argument which we have prepared in the time available. Mr Chairman, I have tried my best to make it as extensive as I could, in order to try and cover all the points. I didn't really succeed Mr Chairman.

CHAIRPERSON: Thank you very much.

MR VISSER: What the point, the point I am trying to make Mr Chairman is that what I tried to do was to give you a summary of issues which you will obviously have to consider, and having placed them on paper, I do not intend Mr Chairman, to deal with them seriatim, specifically Mr Chairman, as Commissioner De Jager is quick to point out that you have heard this so many times before, you most probably know it by heart by this time.

CHAIRPERSON: It is no longer in dispute.

MR VISSER: Yes, Mr Chairman, yes. The only point that is still a bit of a problem to us Mr Chairman, and I say this to explain why we repeat those arguments every time, are on the issue of an interpretation of the Promotional of National Unity and Reconciliation Act, in as far as we have not received a decision handed down by the original Amnesty Committee or by any Amnesty Committee on how the Amnesty Committee approaches an application of the requirements of particularly Section 20 Mr Chairman.

The Amnesty Committee has in the past simply stated that on the evidence, it finds that the applicant had complied. From that point of view, that is my excuse for having included that again and lastly by way of introduction Mr Chairman, may I say that it may not look so if you look at 59 pages before you, but the arguments have been cut down to the bone and why I say this Mr Chairman is, if there is any issue which is raised on the papers which you wish more information about, at your request, we will gladly let you have fuller argument on any of the points which may concern you when you read the argument.

Mr Chairman, we appear for two applicants, Brigadier Loots and Colonel Crause in the Nietverdiendt application and first of all Mr Chairman, may we deal with the question of the form or the format of amnesty should the Committee grant amnesty.

We say in paragraph 2 Mr Chairman, that the applications of these two people involve any act, omission, offence or delict - may I pause here Mr Chairman, I notice that my learned friend has approached the matter somewhat differently in his paragraph 1.5 where he refers to, where he asks for amnesty to be granted against all criminal and civil liability - without criticising my learned friend ...

CHAIRPERSON: That is an implication from the Act?

MR VISSER: Yes Mr Chairman, but we prefer to receive amnesty from you in the specific wording of the Act.

CHAIRPERSON: Yes, I would be pleased if you tell us precisely what it is, which particular offence for which amnesty is sought.

MR VISSER: Yes. And the closest we could get Mr Chairman, is in paragraph 2 on page 1, we say we ask for amnesty for the applicants for any act, omission, offence or delict committed by the issue of instructions, conspiracy, planning, preparatory steps taken, arranged and taken and any other offence or delict committed by them prior to, during or after the event and then pertaining to Mr Chairman, (1) the elimination of 10 black men from Mamelodi, Pretoria, on or about 26 June 1986 in the Nietverdiendt area in the district of Thabazimbi. Mr Chairman, we submit with great respect that the chances of another incident having occurred during the conflict of the past, which would fall under this description, are so remote that you can ignore it and if that is correct, if that statement of fact is correct Mr Chairman, then if you should grant amnesty as set out in sub-paragraph 1, we submit that the incident is properly identified and that an applicant should he receive this amnesty, would not be able to rely upon that amnesty in regard to any other incident.

CHAIRPERSON: Is there an offence in our criminal law called elimination?

MR VISSER: Well, it is murder Mr Chairman.

CHAIRPERSON: Why didn't you use the word murder?

MR VISSER: Mr Chairman, I thought that the evidence has been throughout that when we talk about elimination, we talk about murder, but murder.

CHAIRPERSON: No, you specifically asked for amnesty should the order, if the Court makes an order, not refer to the offence as such?

MR VISSER: Yes. Yes certainly Mr Chairman, I stand corrected. Thank you Mr Chairman.

Secondly Mr Chairman, for as far as it may be relevant, the damaging or destruction of a kombi vehicle and thirdly Mr Chairman, the desecration and or destruction of the bodies of the 10 black men by fire and or explosion. We have already spoken about murder as you have now amended my first paragraph Mr Chairman.

CHAIRPERSON: Yes, so it is covered.

MR VISSER: It covers the aspect which was testified to by Crause that they don't know whether the injection might have killed them or the explosion or whatever. They simply don't have that.

But whichever Mr Chairman, it is covered. Mr Chairman, we refer you to the evidence of Cronje and Hechter in regard to this incident and their amnesty application. May I then under the next heading of Identification of Victims, Mr Chairman, refer you to Bundle 1, page 14.

We submit in paragraph 4 Mr Chairman, that the amnesty which was granted to Cronje and Hechter specified certain identified persons as being the victims, who were eliminated.

At page 14 of Bundle 1, a list of names are given Mr Chairman and in the record when these two gentlemen gave their evidence before the original Amnesty Committee and Mr Currin appeared according to the record, for the victims, there were attempts made at establishing who precisely these people were and that led to the names which appear no doubt, on page 14.

The problem which we have Mr Chairman is that we were not part of that investigation and we certainly don't know what enquiries were or were not made. Our clients don't know who these people were. What concerns us a little bit Mr Chairman, is that in Bundle 2(G), at page 856, there appears to be some concern expressed of a possible overlap of at least one person between the Nietverdiendt 10 and the KwaNdebele 9.

Therefore Mr Chairman, what I am addressing you at the moment, is not by way of criticism but by way of saying to you that if you granted amnesty simply for the ten men, it would probably be sufficient. If you feel in your wisdom that proof has been provided to you on the probabilities that the men you mentioned in the decision of Cronje on page 14, were the people and you wish to include those as the people for whom you want to give amnesty if you so decide, then I would still ask you Mr Chairman, to do it in the alternative, namely 10 black men who may or may not have been or whatever, these people. We have no objection to them being mentioned.

CHAIRPERSON: I understand the difficulty, it is a genuine difficulty which we came across.

MR VISSER: Thank you Mr Chairman. Then we can step off that aspect and I want to go straight to the issue raised at page 3, paragraph 9 and onwards. Mr Chairman, that is the question of the importance of Botswana because as I tried to indicate at the inception Mr Chairman, the incidents for which applicants, our applicants are appearing before you in this session, all have to do with incidents in and around Botswana and the Western Transvaal, where our clients hail from apart from Gen Coetzee.

What we say Mr Chairman and I am not going to go through this in detail, I have made a summary for you, as to how the matter got off the ground and it was during 1977. This is evidence which another Amnesty Committee heard Mr Chairman, Marius Schoon left the RSA and established a sophisticated network of infiltration routes Mr Chairman, that was the beginning of it.

I summarise in paragraph 10 the evidence Mr Chairman, which was given in the Marius Schoon matter, evidence of Mr Maharaj as well as Mr Marius Schoon, they speak for themselves Mr Chairman.

If I may then go to paragraph 11 at page 5, the important issue and Gen Joubert has made particular note of this, the important issue was the issue of people going out of the country to receive military training, coming back into the country and then committing acts which either killer or maimed people and destroyed property.

Mr Chairman, in the wisdom of the original Amnesty Committee this was held to be the basis as we read that decision at page 13, the third paragraph, upon which this Committee, the original Amnesty Committee granted amnesty to Mr Cronje and Mr Hechter, and I am not going to read it Mr Chairman. In our evidence we have placed it on record that we fully agree with that sentiment expressed there Mr Chairman.

We certainly don't agree with the intimidatory effect but that is another matter, we agree with the basis upon which you granted the amnesty.

Mr Chairman, we go on from 1977 in paragraph 12 to 1978, 1979, in paragraph 13, aspects arising in 1983 and then slightly after the incident of the Nietverdiendt 10, for that matter of all the incidents which you are going to hear, in 1988 Mr Chairman, there is a reference to Exhibit 2J which you will recall. That is the thick bundle which contains statements regarding activities in and from Botswana.

Mr Chairman, again in order to save time, I have given you the references and a little further on, I have given you summaries as well Mr Chairman. The references you will find in paragraph 14, the people involved, the prominent people involved of the ANC in Botswana operating there from time to time in paragraph 16 at page 6, with the references to Bundle 2(J) Mr Chairman, there are quite a number of them, and then as time went by Mr Chairman, we say in paragraph 17, Botswana gained the stature of becoming the most important infiltration route into the Republic of South Africa, while Mozambique and Swaziland did play a role, Botswana gained the stature of becoming the most important springboard for activities of the liberation movements and particularly the ANC and the PAC, within the Republic.

Mr Chairman, we refer because we believe that it is relevant, to the fact that on the 16th of June 1986, a country wide state of emergency was declared and we mention that to explain in paragraph 19 that even that did not assist the Security Forces, particularly the Security Police, to bring the matter under control and to rectify or normalise the position.

Mr Chairman, then in paragraph 20 over the page at 7, to page 8, to page 9, for your convenience we have made brief extracts from that large Bundle, Bundle 2(J) in order to assist you just to get the picture how the matters progressed and became more intense from Botswana.

Mr Chairman, at page 9, paragraph 21 and further, we deal with the personal situation of the applicants. They are also contained in their affidavits which form the basis of their applications, Mr Chairman.

Then if we may, we come to page 10, paragraph 24 dealing with the incident itself, the Nietverdiendt incident itself.

Mr Chairman, the evidence which these two people could give you are very simplistic indeed and that is because their involvement was extremely peripheral as you will recall on all the evidence.

Really basically, I don't want to repeat it, but they were asked for assistance, they gave their assistance, they agreed with the plan of operation and they gave the reasons and I have repeated them for you, I am not going to take up your time.

I want to submit to you Mr Chairman, with respect that there is no serious contradiction between their evidence and the evidence of anybody else, in fact, I can't remember of any contradiction of any note.

From that point of view Mr Chairman, really that should be the end of the argument. They acted basically on instructions with which they agreed and that is dealt with in detail with references to the affidavits, etc, up to page 13.

We have already told you Mr Chairman, that we are not going to go into detail, but seeing that the judgment has not been handed down, we did make Heads of argument points in paragraph 37 to 40 about the statutory situation. Mr Chairman, the important thing here really is that the Amnesty Committee functions under the provisions of quite a number of Acts, even dead ones so to speak, if I may put it that way.

CHAIRPERSON: Yes, we are required, you may attach it to the Indemnity Act as well.

MR VISSER: Yes absolutely. And all that we have done Mr Chairman, we have just placed that on record in our Heads of argument under General Submissions, Statutory Provisions, in those paragraphs which we mentioned and references to the ...

We are not going to go into discussing that again. If you are interested Mr Chairman, in the London bomb application, a full argument was addressed to the Committee then sitting by not only myself, but my learned friend Mr Du Plessis and others in which the matter was dealt with very comprehensively, and in our respectful submission, correctly.

Mr Chairman, as far as the conflicts of the past is concerned, we are in the fortunate position that we have now before us the decision of Cronje and Hechter, particularly Cronje from pages 2 - 6 in Bundle 1.

CHAIRPERSON: Apart from whatever the decision was, there has been evidence in any case.

MR VISSER: Yes, well throughout as my learned friend, Mr Grobler says, this is the one part that you have heard so many times, I am sure you don't want to hear it any more.

CHAIRPERSON: Yes.

MR VISSER: And we all lived in this country and we all knew that there was a conflict going on, so Mr Chairman, what we have done is, we have just given you the main moments, characteristics or (indistinct) if I may put it that way of that struggle, in so far as they may relate to the granting or refusal of amnesty and we have done that very briefly and again if you want more information Mr Chairman, we are quite happy to give it, but we don't believe that you will need more information.

That runs up to page 24. Mr Chairman, very much part of what is now gone before, you will find at page 24 a heading there, ANC/SACP Policy Strategies and Tactics. We are in the same position as my learned friend, Mr Grobler was in his argument where we have singled out the ANC/SACP not because they were the only liberation movement but by far and away, the were the most important and the strongest one.

Mr Chairman, what we have done is to attempt to highlight how the struggle with - the four pillars of struggle and the target identification had an influence on the mindset and the thinking of Policemen on the ground who were faced with situations from time to time which they could not deal with in terms of the normal laws of the land.

Mr Chairman, with that introduction, the paragraphs I hope are self-evident and self-explanatory. They don't need any further explanation. It goes on under Target Selection of ANC, MK specifically Mr Chairman, and then Mr Chairman, at page 28, which we submit with respect to be of crucial importance to that very mindset of Security Force members to which I have just referred Mr Chairman, was how the South African government, reacted to and sought to deal with the revolutionary onslaught.

The pressures which were brought to bear. You have heard a lot I am certain Mr Chairman, of the evidence given by Min Vlok and we refer Mr Chairman, to that evidence. I am jumping Mr Chairman, and if you want me to go into more detail, please stop me, but I believe that if you should read this, it would be really self-evident. We deal with the role and perspectives of the Policemen in the struggle Mr Chairman.

We deal in paragraph 93 in paragraph 31 with what brought about the change in their outlook and training and mindset of Policemen, particularly the Security Police with the amendment of the Police Act, 14 of 1912. In paragraph 93, when the Police became involved in the maintenance of internal security which was just another way of saying that the Police became involved in politics and that is the point we make here Mr Chairman.

What brought, the baggage which that brought along with it, that we say in paragraph 94 Mr Chairman.

CHAIRPERSON: Yes, I see that.

MR VISSER: Mr Chairman, then we refer to the evidence in paragraph 97 of Gen Van der Merwe who gave evidence before you and you will recall that evidence of how a grey area must have developed in the minds of Policemen, being bombarded with public statements by politicians, by their Generals, by being subjected to pressures and by realising that the matter was getting out of control.

I have given you the references Mr Chairman, it is also part of your Bundles.

Now Mr Chairman, we submit in paragraph 103 at the bottom of page 33, if I may start perhaps at paragraph 102, we say that the applicants were part of such operational structures which were properly authorised in terms of its creation, (indistinct), operational funding and utilisation, that refers Mr Chairman to the whole Security establishment and we will recall in the olden days how widespread that was and how many people and institutions it involved, apart from the Security Forces.

We say Mr Chairman, in paragraph 103 that the applicants were firmly convinced that their action, all actions launched by them against the "enemy" from within those structures, or instructed by those structures, were bona fide of nature justified and properly authorised.

The fact that they were not so, Mr Chairman, we realise today but that is the whole point of amnesty, is for the granting of amnesty for crimes and delicts.

Now Mr Chairman, the rest is self-evident again. We talk about the pressures in paragraph 109 at page 35. Then Mr Chairman, we come to the provisions of the Act at page 36.

Again Mr Chairman, on many occasions these arguments were placed before you. We, I am not going to read all of this, my learned friend, Mr Grobler has referred you to how he reads the provisions. We are substantially in agreement with him.

There are two matters Mr Chairman, which we just want to, which we just wish to emphasise. The one Mr Chairman, you will find at page 38 where we refer in paragraph 123 and 124 to provisions of the Act which deal with the word or the expression that amnesty shall be facilitated and we wish to emphasise this yet again Mr Chairman, that the Amnesty Committee shall facilitate as soon as the requirements have been met, facilitate the granting of amnesty and that according to the Concise Oxford Dictionary say in paragraph 126, is to make easy, promote or help forward.

Now certainly from our experience Mr Chairman, that is the experience which we have had and we trust that it will be so also in the future.

CHAIRPERSON: I must confess that I didn't in my own mind, up to now, give sufficient emphasis to the use of the word facilitate. It doesn't occur very often in our legislation.

MR VISSER: The other matter Mr Chairman - yes, that is true, but Mr Chairman, your actions speak louder than words. You have been facilitating, so whether you realised it ...

ADV DE JAGER: It more relate to procedures?

CHAIRPERSON: Yes.

MR VISSER: Well Mr Chairman, we have had this argument before. I take your point, I take Commissioner De Jager's point, but there is no such restriction from the reading of the Sections of the Act, the relevant Sections of the Act Mr Chairman. We say, and it would certainly fit in with the whole issue, the whole concept of reconciliation Mr Chairman.

Certainly because if it is not the Amnesty Committee that is going to build the historic bridge, who is going to build it?

So certainly Mr Chairman, I think it must go wider than mere formalities. Mr Chairman, the other matter which may be sometimes, misconstrued or misunderstood is the question of the test of ... (tape ends) ... I don't want to embark on a whole argument about it again.

Very simply Mr Chairman, the provisions of subsections (1) and (2) of Section 20 refer to objective tests. Those are issues which have to be established objectively.

We say Mr Chairman, only in Section 20(3) do we deal with subjective tests. And really, one doesn't really have to say anything more than that. But it is important to bear that in mind, to bear that in mind.

Whether a man for example believes that he was a member of the Security Force, is totally irrelevant. It is an objective test, was he or wasn't he?

CHAIRPERSON: Was he in fact or not?

MR VISSER: Yes. So once that is so Mr Chairman, we can step off those two issues and we speak of those requirements of the Act from page 41 onwards Mr Chairman, we deal with each of it in turn, act associated with a political objective and we do so Mr Chairman, in order to submit to you at the end as we now already do, that the two applicants in their evidence and by what they have presented to you, have complied with all these requirements.

Perhaps one last point which sometimes cause concern Mr Chairman, and you will recall that we have addressed this in other, in the Kondile matter for example as well, is the inherent paradox and we refer to that at page 44, paragraph 142 and onwards.

And really Mr Chairman, you don't have to read it, it simply boils down to this, the requirement of Section 20(2)(b) that amnesty be granted to members of Security Forces and others specified in that subsection, who acted within the course and scope of their duties and within their authority, has presented grave difficulties to many of us and not least of all, to members of the Amnesty Committees because it has often been asked but how can you say you acted within the course and scope of your duties and executing your authority because what Act allows you to kill people, to murder people, etc.

And with respect Mr Chairman, although the Amnesty Committee has not made a finding for or against that argument, we suspect with respect that the Amnesty Committee has followed the submissions which we have previously made and that is that as long as the act, omission or offence was an act, omission or offence which was relative to the duties of the applicant as a Policeman or as a soldier or whatever, the Afrikaans text is more descriptive, it talks about what stands in relation to. And once one understands it in that way Mr Chairman, we submit that one does not have to be too technical about trying to interpret Section 20(2)(b) in that regard.

Mr Chairman, we have referred you to (indistinct) the judgment of Van Dykhorst J, at page 47, it speaks for itself. At page 48 Mr Chairman, we refer to international competence of amnesty orders by this Amnesty Committee. I have included it now, it is not relevant to you now, but it will become relevant later in the McKenzie matter and at that stage Mr Chairman, I will beg leave to refer back to this general part which I am dealing with now and then I will refer again to page 48 with your leave. At this stage, I am not going to deal with it Mr Chairman.

CHAIRPERSON: Thank you.

MR VISSER: Mr Chairman, that runs to page 53 and then at page 53, paragraph 173, the only reason why we have included these paragraphs under this heading Mr Chairman, is to remind you of what the applicants asked you to bear in mind when considering their applications for amnesty.

We have just placed them here as a convenient reference point, if you wanted to refer to all those evidence and submissions. Mr Chairman, I couldn't find a page reference for Exhibit P45, I am not certain, this was late at night last night when I did the page references and I may have just missed it Mr Chairman, but forgive me, if there is a page reference which I couldn't find.

CHAIRPERSON: Quite all right.

MR VISSER: Mr Chairman, we deal in paragraph 54 with objections. We know as we were informed that the members of the families of the victims objected to the Nietverdiendt 10 application, on the ground as we understood it, that the applicants were not speaking the truth.

Correctly or incorrectly, I was left with the impression that they - that is the lady whose name unfortunately I did not take down in my note.

CHAIRPERSON: Mrs Pierre, the mother of one of the ...

MR VISSER: Mrs Pierre, yes, was really directing her criticism not at the two applicants for whom I appear and if I am correct with that Mr Chairman, then that is the end of the matter, but if I am wrong, I say Mr Chairman, that it is hard to perceive what Loots and Crause could have not been telling the truth about, because they have made a full and frank disclosure of relevant facts.

In regard to those two applicants, certainly Mr Chairman, we would submit to you that there is really no objection.

Mr Chairman, would you please strike out paragraph 176, it does not belong where it is. I deal with it a little later on. 176 shouldn't be there.

Mr Chairman, we are near the end of the race track, at page 55, I make the submissions Mr Chairman, which we have now already made that the applicants have complied with the requirements of the Act Mr Chairman, they have made a full disclosure. It is clear that no personal vendetta or malice was involved and they have locus standi in terms of the Act and if we are wrong and if you find that they did not act within the scope of their authority, then clearly Mr Chairman, on their evidence, Section 20(2)(f) must be applicable in as much as they clearly bona fide believed that they so acted.

And we therefore ask you Mr Chairman, to consider their applications favourably - I just lost the word, favourably, thank you Mr Chairman.

Mr Chairman, we deal very briefly at page 57 with the implication of Gen Coetzee by Gen Joubert. In paragraph 186 we set out the basic implication of Gen Coetzee. We know from the evidence Mr Chairman, that Gen Joubert stated that whatever was said or whatever occurred, the Police investigations went on and this in fact turned out into a formal inquest and you heard Mr Robey give evidence to say that he was arrested.

In other words, there is no issue here Mr Chairman, which in our view with respect, which could affect the amnesty application of either Gen Joubert or anyone else in any of these applications, whether or not Gen Coetzee had this conversation or this discussion with Gen Joubert or not, and in view of what Commissioner De Jager placed on record, a view incidentally if we may say so, with respect, with which we agree fully, this is not an inquisition, this is an Amnesty Committee.

If a person is implicated and he is guilty of some offence, some other forum and some other procedure will follow Mr Chairman. On that basis, we then ask you now to simply make no finding in that regard Mr Chairman.

And then as far as Gen Wandrag is concerned at page 59, we saw it fit to include that because of the concerns which we recognised in questions which Judge Khampepe put to some of the witnesses, I believe it was the witness Gouws and Oosthuizen.

We did not understand either of those two witnesses to say that as far as they are concerned, Gen Wandrag would have been aware. Whether or not there are probabilities pointing in one or the other way, Mr Chairman, I would ask you to deal on the same basis with that, as the argument which I presented to you regard to Gen Coetzee.

CHAIRPERSON: Yes.

MR VISSER: If it so happens that these people knew something about it, well then so be it and the law will take its course.

On those bases Mr Chairman, we have gone through this in record time. If there is anything further that you would like to know of us, we would certainly be pleased to be of assistance to you, but on the basis of the evidence so far Mr Chairman, we ask you for amnesty to be granted as we have discussed with you at the initial stage when we spoke about paragraph 2.

CHAIRPERSON: Thank you very much.

MR VISSER: Thank you.

CHAIRPERSON: Thank you. Mr Visser, I must place on record the Committee's indebtedness for your assistance in this regard.

MR VISSER: That is kind of you Mr Chairman.

CHAIRPERSON: Who do we hear next Sisi? Are there any other applicants represented by Counsel who wishes to address us?

MR POLSEN IN ARGUMENT: Mr Chairman, I think perhaps it is appropriate at this point in time, that I should briefly put forward my argument in favour of Colonel Kendall.

His having been the one person who had some background on the KwaNdebele situation.

CHAIRPERSON: Yes.

JUDGE KHAMPEPE: Nietverdiendt?

MR POLSEN: He was not involved.

JUDGE KHAMPEPE: Oh, with regard to the Ntuli incident?

MR POLSEN: The Ntuli incident.

CHAIRPERSON: Yes, please proceed.

MR POLSEN: I did not, like my colleagues prepare a long argument, a written argument for you and I certainly offer to do so should you think that it would be necessary Mr Chairman.

You will find the applicant's application in Bundle 7 and on page 64. You will note that the application was filed on the 12th of December 1996 by the Attorney General in a very general form, it was later supplemented in terms of an agreement between the Attorney General and the Amnesty Commission.

Therefore a further supplement would be found on 64.6 which was even later supplemented by myself when I became involved in the matter and the written evidence is therefore to be found on pages 64 up to page 77 of Bundle 7.

In giving his evidence Colonel Kendall adopted the evidence given by ex-Minister Vlok, Gen Van der Merwe and Gen Joubert, supported by the other applicants on various probabilities in the course of their applications in this particular matter.

He also accepted the findings of the Amnesty Commission with regard to the application of Cronje and Hechter and asked that those decisions must be made applicable to this particular application.

I don't think it is necessary that I should remind this Committee of its decision, but if you would allow me, I would like to highlight two or three of those findings which I suggest should apply also to this particular application.

CHAIRPERSON: Please do.

MR POLSEN: The finding is on page 1 of the Cronje decision, it says this matter has to be considered in the light of the evidence given by Gen Van der Merwe, the former Commissioner of the South African Police during his hearing and the evidence given by the former Minister of Law and Order, Mr Vlok in the later hearing of his application for amnesty.

In so doing the Committee is aware that the applicants did not have the opportunity to listen to the evidence of Vlok or to cross-examine him. The Committee does not however intend to use his evidence to the detriment of the applicants.

Both Van der Merwe and Vlok gave evidence of a general nature, explaining circumstances under which members of the Police worked during the time of political turmoil in the country and also how they might have understood the instructions, and that is the operative word, the instructions in the light thereof.

Then on page 2 the finding is, it may shorten future proceedings if the evidence could be summarised in this decision and simply be referred to in the future without the necessity of repeating it in all future hearings. This is exactly what this applicant wants to do.

It then continues to describe the political situation and summarises the evidence of Vlok and Van der Merwe and we ask you to accept that finding also for the sake of this application.

It then deals with the Police Act was amended in terms of Section 5 thereof. The Police was responsible for internal security. Their functions were extended beyond the primary Police function of combating crime, and here I would like to adopt the argument by both my learned friends, with regard to the grey area which existed in the minds of members of the Police Force as to what is legal and what is illegal in the light of the political statements made by their superiors.

Then particularly this portion, the Security Police were seen to be and in fact were the thin line standing between the government of the day, keeping them in power and the ANC and other liberation forces intent on grasping power through successful revolution.

That particular finding would apply.

ADV DE JAGER: Mr Polsen, I don't want to interrupt you, but could I put in short my problems. I haven't got a problem about the background. I've got this problem as far as Mr Kendall is concerned, Mr Van Jaarsveld gave evidence here today saying that he had been present when the Ntuli matter was discussed at the meeting, one of the weekly meetings, that Cronje phoned somebody or received a phone call, and in fact that Cronje afterwards came back and said that Ntuli should be eliminated.

It is not quite clear whether Kendall was there, but Kendall's evidence is that he knew nothing about it. He sort of by accident came across these people on the day. Could you - I am worried that he might have known more than he actually professed to know here.

MR MEINTJIES: May I intervene here Mr Chairman, on behalf of Mr Van Jaarsveld. I didn't understand at any time that Mr Van Jaarsveld implied that Mr Kendall had any knowledge of the plan.

It seems that the actions by Mr Cronje or Brigadier Cronje, was done after the meeting.

ADV DE JAGER: Yes, it may be so but the identification as a target, if it was there decided by Cronje something should be done?

CHAIRPERSON: Or wasn't it said that Kendall made an input on the question of identification of the target?

JUDGE KHAMPEPE: I think the evidence was Kendall certainly supplied information with regard to the activities of Mr Ntuli.

I certainly did not understand Mr Van Jaarsveld's evidence to go as far as to say he was present when Brigadier Cronje came back after having made a phone call and said Mr Ntuli was to be eliminated. Mr Kendall was not present, that was not what was suggested by Captain Van Jaarsveld's evidence, that is how I recall his evidence.

MR MEINTJIES: I am in agreement with that Mr Chair.

MR POLSEN: So am I, thank you Mr Chairman.

ADV DE JAGER: I think at least it has been neutral, there was no indication that he had left the meeting in the meantime?

MR POLSEN: Mr Chairman, as far as I understand the evidence, I don't think that Kendall was at that particular meeting.

JUDGE KHAMPEPE: He wasn't at that meeting, he wasn't at that particular meeting.

MR POLSEN: Correct, what I do know is that Kendall weekly reported to this management meeting on the activities of Ntuli. The report went so far as to explain how the actions of Ntuli, criminal or otherwise, aided and abetted the cause of the ANC in a sense that it made KwaNdebele ungovernable.

ADV DE JAGER: It may be that I have had the wrong impression, but I only wanted to alert you to that, if I have, it would show on the evidence, I will read Mr Van Jaarsveld's evidence again.

MR POLSEN: Thank you Mr Chairman. On that particular point, I can refer you to the application by the applicant where he deals with his political motive and his evidence was that he was fully in agreement, both in the application and in his viva voce evidence that Ntuli must be removed from the scene.

Thereby not meaning and he says that in his application, I didn't mean that he must be killed, I knew the man personally, he was an adopted member of the KwaNdebele cabinet, he was involved with the Civics, so he knew Ntuli as a strong man in the KwaNdebele cabinet. He did not mean that he should be killed. He meant that he had to be eliminated or neutralised politically, that is how I understand his particular ...

ADV DE JAGER: Yes, I understood it to that he indicated that he had committed crimes and he could have been arrested and sentenced or whatever it may be.

MR POLSEN: Then on the day, on the 26th of July when he had the fortuitous meeting with his superior, Cronje, he noticed that Murder and Robbery was also present and having given the evidence that near Vlaklaagte there had been some evidence of Mr Ntuli's criminal activities through Mbokoto, he was under the impression well, either the Murder and Robbery Squad is here to remove or to arrest and he wasn't fully aware of what the plan was, but that he was in agreement that Ntuli had to be neutralised, that fact, stands as I understood his evidence.

CHAIRPERSON: I accept that, that is the understanding that I have now of his evidence.

MR POLSEN: Yes. If I may cut my argument short, we have accepted the background and the reasons and I can deal with Section 20, I think my learned friends have dealt with that sufficiently, but I will refer to that quickly, only with regard to Kendall.

Kendall, after having arrived at Jack Cronje's meeting where they were parked and ready to eat, proceeded to go and identify the Minister for Brigadier Cronje. At his request, it was a suggestion made to him, he acceded to that and he approved of it.

At that point in time, he wasn't aware of what the intentions were. He said that he travelled and found Hechter laying in the back of his car, he presumed at that stage, or suspected dirty tricks at that time.

The question was, would one under those circumstances given the ambience and the political consensus at the time and the superiority of his immediate superior, have turned around and left the minute he suspected dirty tricks? Is that what was expected of him? Would he have done it?

He didn't do it. The fact that he didn't do it, means that he must have in some way, associated with whatever the outcome was. Before one can be an accessory to a crime, you obviously have to have an intention which covers all the elements of that particular crime.

Had he known that it was murder at that particular time and had he had a dolus evantualis which covered every possible aspect thereof, in so far as that may be found, then I say he is a socius criminis and then I say he should be given amnesty for all the other reasons which I can enumerate and that he complies with the Act fully.

If at that particular point in time, he wasn't aware that Ntuli was going to be killed, but he knew that there may, some or other human right may be committed or infringed or impugned upon the integrity of the man's body in whatever form, then one can say that would be dolus indirectus perhaps or had an intention that whatever comes, will come and I associate myself with that. In so far as that may be found, that is a question which on proper cross-examination with regard to his state of mind, could be determined in some other forum if that is so.

But in so far as this Committee may find and I submit that there is a possibility that he may be regarded as a socius criminis I ask that you should as an accessory before the fact, grant him amnesty.

Then comes the time when he became aware that there was a real intention of taking this man out by snuffing his life. That was at the time when he got back to the kombi and he heard the people talking about the switches and the fact that the switches would be utilised.

He later then left for Bronkhorstspruit and on his way he heard on the radio that there was an explosion at the Police station. When he returned, he identified the portion of Piet Ntuli's body if I remember his evidence correctly.

From that moment on, he had a duty to speak as a Policeman. Were it normal times, he probably would have spoken. He didn't speak. That makes him an accessory after the fact.

For that he applies for amnesty. It is unlawful of a Policeman whose duty it is to protect the citizens of the country, to know that somebody had killed another person, and not to disclose that to the authorities. In that sense he is an accessory after the fact.

I would ask that for that, he should also be granted amnesty. Because his application complies with all the other requirements of the Act, Section 18, Section 20 as far as the formalistic requirements are concerned. He is a member of the - employed by the State.

If one looks at Section 20 - that they certainly do in a prescribed form, the act, offence or deed which was committed with a political objective. As far as that is concerned, the political motive, I think we need to find in the fact that although it was knowledge that Piet Ntuli is not a member of the ANC, his activities greatly contributed to the purpose of the ANC at that time, and that was to make the country ungovernable and to force a situation which would lead to negotiations.

JUDGE KHAMPEPE: Wasn't he also suspected to have been a double agent, working for both the government and the ANC?

MR POLSEN: Yes, he was. Mr Chairman, yes, as far as I remember the evidence, I may have missed that, thank you.

He was regarded as a puppet for the government but in his actions, he actually assisted the purpose of the ANC.

ADV DE JAGER: Yes, but Cronje considered him to be a double agent or had suspicion that he was a double agent? That was Annexure A, it wasn't included in the Bundle and that is what Mr Grobler kindly presented us with, it is annexed to his Heads of argument.

MR POLSEN: Thank you Mr Chairman. Another point that I wish to make is that in the evidence, it came out that the ANC in Harare claimed the credit for the death of Piet Ntuli.

At the same time, I think it is said that Chris Hani also claimed the credit for the death of Ntuli. The fact being that he was not a very popular individual in his own community.

The credit if there was credit to be taken for the death of another person, was sought after by the ANC and the PAC as liberation movements, and therefore his actions had a political effect in the time.

It was reported by Colonel Kendall at his meetings that the community would be stabilised without Piet Ntuli. At the time, it was government policy to have a successful KwaNdebele State. This was not approved of by the ANC.

A successful State would make it more difficult for the liberation movements to make the country ungovernable, so willingly or unwillingly or as a double agent, it is a fact though that Piet Ntuli was aiding and abetting the cause of the liberation movements.

There again, Brigadier Kendall as a person employed by the State, whose duty it is to protect the interest of the State, and honestly believed so and said so, in extenso in his application, particularly the supplementary portions of his application, dealing with his background and his beliefs and his bona fide belief that he was doing his duty, seen in the light of the greyness of the demarcation between what is legal and illegal, he certainly believed bona fide believed that what he was doing, was in the interest of the country at the time. He was actually convinced of that.

Given all those facts, if I may refer you to page 77.1, rather can I just refer you to 77 and clear up one particular matter, I make this application in as far as my action can be interpreted to my status as an accomplice and as far as my action and silence thereafter, can amount to aiding and abetting. My personal political objective was the removal of unrest from the political situation in KwaNdebele in order to achieve stability.

This involved the removal of Ntuli, but I was only involved in that I provided co-operation to the Officer, Brigadier Jack Cronje and carried out his orders. I don't know who gave Cronje the orders in this relation, and personally I have never been introduced to the idea that Ntuli was assassinated in order to achieve a political objective.

He had no interest in the planning, but he associated himself with it after he suspected dirty tricks and did nothing to conceal it, to make a disclosure.

CHAIRPERSON: Thank you very much.

MR POLSEN: Then if I may turn briefly to the Act, I think it falls within 20(2)(b), bona fide belief and his employ ...

ADV DE JAGER: I don't think we have a problem with that.

MR POLSEN: Is there anything else that I can address you on? My submission to you is that he complied with Section 20(3) in so far as those subjective tests apply to him personally.

He has made a full disclosure, employed by the State and bona fide belief with a political motive.

CHAIRPERSON: Thank you very much.

MR POLSEN: I ask you to consider the application favourably and to grant him amnesty for his conduct.

CHAIRPERSON: Thank you.

MR POLSEN: Thank you.

CHAIRPERSON: Is there any other applicant who has Counsel appearing on his behalf?

COUNSEL ON BEHALF OF ADV WESSELS: Mr Chairman, if I may, on behalf of Adv Jurie Wessels, he is not present here today.

CHAIRPERSON: He is going to submit written argument, isn't he?

COUNSEL ON BEHALF OF ADV WESSELS: Yes, he commenced his duties as Acting Judge this morning and we had a very brief meeting late yesterday afternoon and he gave me some cryptic notes and requested me to have it typed, which I had done.

He requested me to actually argue it so if there may be any questions or objections or whatever, that I refer it back to him and afford him an opportunity to reply thereto.

CHAIRPERSON: Well, you can hand in his written argument to us. Should we require clarity, we will ask him for clarity.

COUNSEL ON BEHALF OF ADV WESSELS: Thank you very much.

CHAIRPERSON: Yes?

MR MEINTJIES IN ARGUMENT: Mr Chairman, Roelf Meintjies, I would like to put a few submissions to the Committee.

CHAIRPERSON: On behalf of?

MR MEINTJIES: On behalf of Mr Van Jaarsveld.

CHAIRPERSON: Yes.

MR MEINTJIES: In the first instance I want to apologise that I don't have written Heads of argument ready, that will be handed in tomorrow morning.

CHAIRPERSON: All right.

MR MEINTJIES: I am indebted to my learned friends and colleagues that went before me, and I am not going to belabour anything and I won't take more than two minutes of your time.

I just want to make a few submissions to the Committee with reference to the finding of the Commission in granting amnesty to Brigadier Cronje for the murder of Zweli Nyanda and Keith MacFadden.

There the Committee summarised the requirements of the Act as follows: A full disclosure of all material facts relating to the incident, must be made. The incident must relate to the conflicts of the past, and must be associated with a political objective, that the applicant and his co-Policemen believed that they acted within the course and scope of their duties and within the scope of expressed and or implied authority.

I then continue to the death of Dr and Mrs Ribeiro. It is submitted to the Committee that a full disclosure of all material facts relating to this incident, was made by Mr Van Jaarsveld.

No cross-examination or questions in cross-examination was done to, was asked from Mr Van Jaarsveld and therefore we can accept that it was full disclosure.

The same applies to the death of Mr Piet Ntuli, in the sense that certain questions were put to him, no new or surprising information was obtained from Mr Van Jaarsveld in that way.

As far as the requirement of the Act regarding incidents to relate to the conflicts of the past is concerned, the evidence of the applicant together with the evidence of other applicants clearly state this fact, the Committee is also referred to Annexures B and C to the applicant's amnesty application and the evidence of Brigadier Cronje and Gen Van der Merwe in this instance.

Regarding the requirement of a political objective, it is clear that Mrs and Dr Ribeiro were seen by the Security fraternity as people who supported the ANC at least by showing video's and helping wounded MK soldiers. Mention was also made of training of activists.

In this regard, as far as it concerns the death of Mr Piet Ntuli, it is clear from the evidence before the Committee that the actions of Mr Ntuli destabilised the KwaNdebele area, thereby giving impetus to the efforts of the ANC in KwaNdebele.

Therefore, the actions of the applicant was motivated by the need to frustrate or stop the liberation movements from obtaining their objectives.

In so far the requirement that the applicant should have acted within the course and scope of his duties and within the scope of expressed and or implied authority, is concerned, it is submitted respectfully to the Committee that from the evidence before the Committee, it is clear that in the sweeping of the scene at the killing of Dr and Mrs Ribeiro, the applicant was acting out his duties as Duty Officer of the Security Branch, Northern Transvaal. He also acted in accordance with instructions received from Captain Hechter who was second in command to Brigadier Cronje in operational matters.

As far as this requirement in regard to Mr Ntuli's death is concerned, this was planned and executed by the applicant together with others and specifically with Brigadier Cronje, under the direct command of Brigadier Cronje.

It is therefore respectfully requested from the Committee that amnesty should be granted to Mr Van Jaarsveld for the following offences and or delicts in the incident relating to Dr and Mrs Ribeiro: Conspiracy to murder, murder.

ADV DE JAGER: Yes, could you kindly go slow.

CHAIRPERSON: Yes?

MR MEINTJIES: Accessory to murder after the fact.

ADV DE JAGER: Wouldn't that be included if we are granting amnesty for murder? Wouldn't that be a (indistinct) verdict under murder?

MR MEINTJIES: I want to leave that to the Committee, if I may.

ADV DE JAGER: No, I want to be assisted by you.

CHAIRPERSON: When you say conspiracy to murder - was he part of the conspiracy?

MR MEINTJIES: Mr Chairman, he was informed the afternoon before the murder, that something was going to happen.

CHAIRPERSON: Did he take part in the planning?

MR MEINTJIES: No Mr Chairman, but it met with his approval.

JUDGE KHAMPEPE: What is it therefore that he conspired to do, he knew nothing about this until when he was instructed to come in and act as a sweeper after the elimination had been carried out?

MR MEINTJIES: He was actually before the incident, the murder took place, he was informed that it was going to happen and he should keep himself ready.

JUDGE KHAMPEPE: Yes, but he was merely informed, he wasn't part of the planning?

ADV DE JAGER: Mr Meintjies perhaps you could look at that again. If there is a conspiracy to murder and the murder is in fact carried out, isn't that part of the murder?

Wouldn't that be a splitting of charges?

MR MEINTJIES: I accept your point of view Mr Chairman, and I will continue with further crimes.

CHAIRPERSON: Very well, carry on.

MR MEINTJIES: The following will be defeating or attempting to defeat the ends of justice by sweeping the area and then it is respectfully requested from the Committee, amnesty for any other offence and or delict directly connected with the murder of Dr and Mrs Ribeiro or relating thereto.

The request for conspiracy to murder and accessory to murder, I am sorry, to murder, will then be withdrawn, or are withdrawn.

CHAIRPERSON: Yes.

MR MEINTJIES: As far as the death of Mr Piet Ntuli is concerned, the Committee is respectfully requested to grant amnesty for the following: Malicious damage to property, contravening sections of the Explosives Act, 26 of 1956, murder, any other offence or delict directly connected with or relating to the murder of Mr Piet Ntuli.

Thank you Mr Chairman.

CHAIRPERSON: Thank you. Yes? That covers all the applicants?

MR ROSSOUW: No Mr Chairman, I note that it is passed one o'clock, should I proceed with my argument on behalf of Gouws and Oosthuizen?

CHAIRPERSON: Yes please.

MR ROSSOUW IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, likewise I have not prepared typed Heads of argument, I apologise for that and I can also place the typed Heads before you, should you require me to do so.

CHAIRPERSON: I think it would be useful if you can, let us have your Heads of arguments during the course of this week.

MR ROSSOUW: Thank you, I will have them typed Mr Chairman. Mr Chairman, I do not intend to deal fully with the interpretation with the Act again.

CHAIRPERSON: I think that has been covered by the other Counsel.

MR ROSSOUW: Yes, may I just point out, take one point that I wish to stress at this point, and that is the requirement that the Amnesty Committee should be satisfied that the requirements of the Act had been complied with and that the applicants fall within the ambit of the provisions of the specified sections in the Act.

Mr Chairman, the word satisfied was discussed in the case of Afrikaanse Pers Bpk v Nesser, 1948 decision, volume 2 of the South African Law Reports, at page 295.

CHAIRPERSON: Just give me that again, page 295?

MR ROSSOUW: Page 295 in Volume 2 of the South African Law Reports, 1948. Mr Chairman, the word satisfied was there discussed and it referred to a defendant having to satisfy a Court that he has got a bona fide defence.

The Court held that the authority showed that to satisfy is not a heavy onus, satisfy does not mean proof. The Court stated that and I quote "I take satisfy to mean therefore that the Court must feel that there is a fair probability that the defendant's defence is a good one at any rate, that it is bona fide."

Mr Chairman, it is therefore submitted that a lesser test than even proof in the civil sense of the word, namely on a balance of probabilities, was intended by the legislature.

The Committee must merely be satisfied that the explanation given by an applicant, can be reasonably, possibly true.

CHAIRPERSON: Yes.

MR ROSSOUW: Mr Chairman, then dealing with the requirements of Section 20(1)(a), the first requirement is compliance with the let's call it the formalistic requirements of the Act, as set out in Section 18. Mr Chairman, these two applicants, Mr Gouws and Mr Oosthuizen, their applications were submitted before the cut off ... (tape ends) ...

ADV DE JAGER: Yes, I don't think we've got any problem with the formal, formalities of the Act, unless you could point out something to us.

MR ROSSOUW: I do not wish to point out anything in that regard. Thank you Mr Chairman. Mr Chairman, whether this was, the murder of Mr Ntuli, which is the incident for which they are applying for amnesty, was an act, omission or offence that was associated with a political objective, Mr Chairman, I submit that there can be no question that this was in fact the case.

This Committee has in fact heard the evidence of Brigadier Cronje in this regard, and has in fact found that the murder was an act associated with a political objective, and I refer the Committee to Bundle 1, the amnesty decision of Brigadier Cronje, more particularly page 16 thereof.

Mr Chairman, I would submit that as far as the requirements of Section 20(2) is concerned, that both Mr Oosthuizen and Mr Gouws were employees of the State and that they acted in the cause and scope of their duties and within the scope of their expressed or implied authority.

Mr Chairman, in this regard, this Committee and other Amnesty Committees have heard evidence that in the previous government's counter revolutionary strategy and in the light of the total onslaught, words were used to convey instructions that would imply the use of illegal means. Under such circumstances, lower ranking Policemen bona fide held the belief that even illegal acts could be carried out to counter the revolution and to keep the government in power.

Mr Chairman, this has led to a situation where in fact, Min Vlok and Gen Van der Merwe, accepted political and moral responsibility for illegal acts that were committed by lower ranking Police officials, and I refer you to the evidence of Min Vlok in the Khotso House matter, more specifically day 1 of the hearing, page 77 of the typed transcript.

Mr Chairman, I refer you also to the finding of the original Amnesty Committee in the Cronje amnesty decision, and more specifically Bundle 1, page 6 thereof. Mr Chairman, both Mr Oosthuizen and Mr Gouws have referred to the evidence that I have now again referred you to, as well as the decision of the Amnesty Committee, they have confirmed it and they have requested that it be read as part of their applications. I therefore submit that they held the bona fide belief that illegal acts could be carried out in order to counter the revolutionary onslaught.

Mr Chairman, further to this point, they testified that they received a request, an order, by Captain Hechter and that the operation was led under the command of Brigadier Cronje. Mr Chairman, as far as the questions that were put to them, are concerned, it is common cause that they were not members of the Security Branch at that stage, they were not members of Northern Transvaal Security Branch where Brigadier Cronje and Captain Hechter were. They testified that they were part of a Special Investigative Unit that were deployed in KwaNdebele specifically to investigate the unrest related incidents there.

They testified that they had to investigate approximately 300 murder cases, arising from the political violence. Mr Oosthuizen testified that shortly after they were deployed there, it became clear to him that this was a political situation and that it was political violence that led to the murders.

Mr Chairman the question is now really whether they can take orders from anybody outside their direct line of command within their Unit and can they then say that they acted and carried out the orders of superior Officers? Firstly Mr Chairman, to answer this question Mr Oosthuizen testified that their Unit was deployed in unrest areas to investigate unrest related cases. This Mr Chairman, is true, not only for KwaNdebele, but he testified that they were deployed throughout the country. At that stage they were in KwaNdebele, which was an unrest area.

He then referred you as far as KwaNdebele was concerned, to the 300 murder cases and also the involvement of Min Piet Ntuli in some of these murders. Mr Chairman, he stated that ...

ADV DE JAGER: But we are not dealing with an investigation about Mr Ntuli's involvement in the murders, we are dealing with his involvement in the murder of Mr Piet Ntuli and that was not the task of his Unit?

JUDGE KHAMPEPE: I think you have started very well, Mr Rossouw, by pertinently putting the question which is quite relevant, can he have understood the situation to have meant that he can take orders from anyone outside his line of command? I think that is the submission we would like to hear you on?

MR ROSSOUW: Mr Chairman, I am leading up to that point. I am first dealing with what the Unit was doing there.

JUDGE KHAMPEPE: Yes.

MR ROSSOUW: They weren't just, and I specifically point this out, because I believe that in the transcript, in the KwaNdebele 9 matter, where Captain Hechter testified, he referred to them as members of Murder and Robbery Squad. Mr Chairman, that would imply that they were merely investigating criminal offences.

JUDGE KHAMPEPE: I think if I may come to Captain Hechter's defence, he might have been confused in one instance because Captain Mentz was also involved in the same incident, but I think he was able, later on, to put the matter in proper perspective in so far as I think, Oosthuizen and Gouws are concerned.

MR ROSSOUW: Thank you.

ADV DE JAGER: In this case, on the evidence, they climbed into the car, the same car as Cronje. Van Wyk was standing by, seeing them getting into that car. It was during - well, they are always on duty, getting into a car with another Commander, what would you expect, should they obey the orders of that Commander, why didn't Van Wyk call them back and say, listen you can't go with that Commander?

MR ROSSOUW: Thank you Mr Chairman, that is one of the points that I am leading up to.

ADV DE JAGER: Yes, but come to it then.

MR ROSSOUW: To argue that indeed ...

CHAIRPERSON: I think, let's just sum it up by saying that the ranks that they held, would not have given them the kind of status to challenge whatever orders Hechter or Cronje gave them?

MR ROSSOUW: Indeed Mr Chairman.

CHAIRPERSON: And that is the end of the matter, and they followed those orders because they thought of the seniority of these people and they dare not disobey an order from a senior.

MR ROSSOUW: Indeed. Mr Chairman, may I further to that add, that the testimony was put before you that being of such low rank, they were in no position to question the orders by a Brigadier and a Captain, and Mr Chairman, that on the basis of what was put to me right now, they had reasonable grounds to believe that they were acting within the cause and scope of their implied authority at least. Therefore they fall squarely within the ambit of Section 20(2)(f) of the Act.

Mr Chairman, but there is more evidence to support this and I would just like to point out that evidence to you. Firstly there was between the Security Branch and the Investigative Unit, a close working relationship, they shared information. This was confirmed by Captain Van Jaarsveld.

CHAIRPERSON: Yes, there was sufficient evidence to cover that aspect of the matter as far as we are concerned.

MR ROSSOUW: Thank you Mr Chairman. Mr Chairman - just a minute - furthermore Mr Chairman, Mr Oosthuizen testified that one shouldn't view this as a rigid division between Units within the South African Police, there was co-operation and especially in the light of the state of emergency.

ADV DE JAGER: Mr Rossouw, I think you run the risk of perhaps overstating your case. I think the Chairman has given you an indication as far as this point is concerned.

MR ROSSOUW: Thank you Mr Chairman, may I make one last submission in this regard. The same, I have read the evidence of Mr Mentz in the KwaNdebele 9 incident, where this same question was dealt with and in that incident, he was also not part of the Security Branch, he was from Murder and Robbery and amnesty was granted to him, for following the order of Captain Hechter in that incident. I would submit that there is a precedent for this, for the Committee to find that they were in fact acting under the command and that they could take the instruction from Brigadier Cronje and Captain Hechter.

JUDGE KHAMPEPE: If they bona fide believed they could take instructions from Captain Hechter, and if my memory serves me well, they were not given instructions by Brigadier Cronje, Brigadier Cronje was present, he was in the scene, but it was Captain Hechter, who instructed them. Just to put that matter in proper perspective, if they believed that they could take instructions from Captain Hechter, why were they under the impression that they couldn't disclose their participation in the incident, because they believed the matter had to be kept secret from their own superiors? This is what troubles me, because there is this close co-operation that is known to have taken place amongst different Units. Why should they be under that impression, that they can't discuss their participation in this incident, with their superior in this case, Brigadier Van Wyk?

MR ROSSOUW: Mr Chairman, the only submission I can make in that regard was the testimony that was placed before you, the information that were relayed to them, the request by - the orders that they received from Captain Hechter was done in confidence, there was to be secrecy and they treated it on a need to know basis.

Mr Chairman, I know that there has been evidence led on the need to know basis before this Committee, and I would argue that even if they suspected that Brigadier Van Wyk, knew about the operation, the need to know principle would imply that they should not go and discuss it, because there is also the possibility that he was not informed about this, and then you would relay information relating to a specific, sensitive incident, to a person outside the - let's call it the operative members of the operation.

Mr Chairman, how far are you going to take it if people are going to discuss this up the line of command and involve people in matters where they really did not need to know about the incidents? That is the only submission I can make to you about this, also coupled with the fact that they were very low ranking Policemen and there were more senior Policemen, admittedly from a different Unit, in their midst. I would submit that it is more probable to expect that information would be relayed between piers in the order of rank.

CHAIRPERSON: I think the thought of disobeying a request from a man like Hechter, would never even occur to them.

MR ROSSOUW: Indeed Mr Chairman, that is my submission as well, I agree with that.

CHAIRPERSON: Yes?

MR ROSSOUW: Mr Chairman, I am then not going to deal with the aspect of whether they were on a frolic of their own. Mr Chairman, the fact is that they did receive an order and I would also submit that one should view this, even though they did not have this information subjectively, objectively one must view this in the light of was it probable that they were just two people, now being called in to assist in this killing of Mr Ntuli.

Mr Chairman, I would submit no. Viewed objectively, we know that this plan was decided and authorised at a very high level. There was co-operation between the Police and the Army. The bomb was supplied by the Special Forces, the operation was to be carried out by the Security Branch. They used the co-operation of a Unit that was working in the area, who had intimate knowledge of the area, who had intimate knowledge of the activities where Mr Ntuli was involved. Mr Chairman, to now go and to pull two people to think this away and to say that two people were just pulled into this operation, and they were on a frolic of their own with these people, Mr Chairman, would make no sense.

I submit that one has to view it in that broad, objective light, and then it would become clear that they were people who co-operated with Hechter and Cronje. They were in a position of trust, they had knowledge of the situation, they had intimate knowledge of the area, therefore Mr Chairman, they had a proper function to fulfil there and they were people who could be trusted, who could be trusted in the need to know principle - taking into account that this was a plan that didn't just start here on the ground, but came from so high up where there was no only the Police, but also the Army involved.

JUDGE KHAMPEPE: I know when Mr Oosthuizen or Mr Gouws, I can't remember, was giving evidence, I did put a question to him, but you preferred not to explore that question for cautionary reasons and that is in all probabilities, this was not the first incident for them to be involved in, because I think it is common cause that they had already been involved in the KwaNdebele 9 incident?

MR ROSSOUW: Thank you Mr Chairman, for pointing that out to me. May I just point to the Commissioner, another aspect which will not be dealt with here, but which the Committee can determine for themselves. Mr Gouws specifically, also applies for an incident where a petrol bomb was thrown at the house of Mr Ribeiro, Dr Ribeiro, which was prior to this incident, prior to the killing of the Ribeiro's, and this was done in co-operation with Captain Hechter. So there was co-operation between them prior to this incident. This is in his amnesty application, the Committee can view it, the Evidence Leader can place it before the Committee should they wish to do so.

Mr Chairman, as far as the other requirements are concerned, I do not intend to deal fully with the subjective requirements in Section 20(3), save to state that as far as the proportionality is concerned of the operation, Mr Oosthuizen testified that after Min Ntuli was murdered, the violence situation in KwaNdebele did stabilise. He also testified that there was no other means to eliminate his influence there, because he said that as far as their investigation was concerned, they had the case to prove that murders were committed by Ntuli, but that they couldn't get the witnesses because of the intimidation. So there was no other means and therefore they accepted that this should be the way.

CHAIRPERSON: Yes.

MR ROSSOUW: Mr Chairman, then lastly on the question of full disclosure, we will submit that both Mr Gouws and Mr Oosthuizen were very credible witnesses, who testified specifically as to their memory, they made a full disclosure, they told the Committee where they were uncertain of certain facts, and they didn't try and hide it, they didn't try and distance themselves from this incident. In fact Mr Gouws went so far as to place himself on the scene when the bomb was placed under the car of Min Ntuli, whereas Mr Kendall does not implicate him there, and Mr Van Jaarsveld was not certain about that. Mr Chairman, I therefore submit that they have made a full disclosure, they did not do this for personal gain or because of ill-feeling or malice towards Mr Ntuli, and that I therefore request the Amnesty Committee to grant amnesty to them in respect of the murder of Min Ntuli, the malicious destruction of property, the conspiracy to commit murder as well as being accessories after the fact.

CHAIRPERSON: Conspiracy to commit which murder?

MR ROSSOUW: The murder of Min Ntuli.

JUDGE KHAMPEPE: Is there any evidence to suggest that they were part of the planning or they were given instructions as to what they were to do after a decision had been made by Captain Hechter to eliminate Ntuli?

MR ROSSOUW: Mr Chairman, indeed the followed the instruction. There is no evidence to indicate that they were part of the planning, but they knew beforehand that this was going to be carried out and admittedly they followed the order.

CHAIRPERSON: They were part of the conspiracy?

MR ROSSOUW: Thank you Mr Chairman.

CHAIRPERSON: Yes. Now you say conspiracy to commit murder of Mr Ntuli and what else did you say it was?

MR ROSSOUW: Mr Chairman, being accessories after the fact.

ADV DE JAGER: And being murderers?

CHAIRPERSON: He said guilty of murder. He said that they were murderers, yes. Yes, anything else?

MR ROSSOUW: Unless there is any specific aspects that the Committee wishes me to address them on.

CHAIRPERSON: All these relate to Mr Ntuli?

MR ROSSOUW: Only relate to Min Ntuli, these applicants were not involved in any of the other two matters that is being argued before the Committee now.

CHAIRPERSON: Yes. Thank you very much. Counsel for the families, the dependants of the victims in this matter here, do you wish to submit argument?

MR VAN DEN BERG IN ARGUMENT: Thank you Mr Chairperson. We haven't prepared written Heads, but I will do so and make those available during the course of the week.

CHAIRPERSON: Please.

MR VAN DEN BERG: I address you on behalf of the families of the Nietverdiendt 10 and on behalf of the Ribeiro family. Briefly Mr Chairperson, in so far as the technical requirements of the Act are concerned, we agree that these had been satisfied. There is a question in respect of Gen Joubert's affidavit or application, which is attested to by his Instructing Attorney, but he has testified under oath and we don't think that that affects it in any way whatsoever.

CHAIRPERSON: Yes.

MR VAN DEN BERG: We believe that it is common cause that each of these applicants were members of the Security Forces, so that the requirements of Section 20(2)(b) have been satisfied. We are of the view that they acted within the scope and cause of their authority and that these were incidents which were committed within the relevant period, before the cut off date.

Mr Chairperson, we don't believe that because amnesty has been granted for similar offences to other applicants, that that is in any way a precedent for these applicants. They must stand and fall on their own applications and they must satisfy the requirements of the Act. In so far as Nietverdiendt is concerned, there are a number of issues that we say is in dispute and where there are contradiction between these applicants and the Cronje applicants.

The first and most primary contradiction we believe, is in respect of the question of whether this was a joint operation or not. There was evidence in the Cronje application that whilst they may well have identified the youths and that whilst Mamasela may have infiltrated them and facilitated I think is the way that they would want it placed on record, that whilst they did all of that, at a point in time, these youths were handed over to the Special Forces and at that stage, it is clear from Cronje and their evidence and from the other Policemen's evidence here, that they took steps to distance themselves from what occurred. It may well be so because of the particularly gruesome nature of these killings.

ADV DE JAGER: They in fact accompanied the vehicle after the people had been injected, they showed the way. They indicated the place where the accident should be sort of staged, so I honestly can't see that they had distanced themselves from the operation.

MR VAN DEN BERG: Chairperson, the submission is simply that at the time when the youths are removed from the minibus, none of the Policemen are physically participating in that process, they are some distance away with, it would appear, no specific task in mind. It is correct that they accompany and that they lead them to the spot at which the accident occurs, but again, the accident is caused or manipulated by one of the Special Force operatives. I take it no further than that Mr Chairperson.

CHAIRPERSON: Yes, I think they were not really interested spectators at the scene, you know? They were not really interested spectators at a scene, it is just that they did what was required of them and stood by and were prepared to do whatever else might have been required of them.

MR VAN DEN BERG: As it pleases you, Mr Chairperson. There still remain in my clients' minds and in our minds, the question of how these youths became to be made available, and it is the whole question of whether there was entrapment and these applications here, take the matter no further. I can't argue that any further than that.

We say finally in respect of Nietverdiendt, that what occurred to these youths, were out of all proportion. The incident is particularly gruesome and particularly horrific. Whether any of the victims was alive at the time that they were set alight, we are not sure, whether any of them regained consciousness after they were set alight, we don't know, but there were other means available to remove these people from posing the threat that they allegedly posed.

This occurred during 1986 and I am not sure whether this is common cause before the Committee, at that time the daily average rate of detentions was in the order of 8 000 people per day. In fact the entire UDF leadership was in detention and we would say that in respect of these youths, it is beyond all proportion.

There are other, minor aspects, which I don't want to argue at any length but there are discrepancies in terms of the type of training that these youths were going to receive and we have discussed the question of the involvement of the various Policemen in the matter.

In essence in respect of Nietverdiendt, what we say is that there hasn't been full disclosure because there are these differences in the evidence between the Cronje group and this group. I understand and I haven't seen the Heads which will be handed up on behalf of Mr Wessels' clients, but I understand that that is dealt with there.

Because of those discrepancies, we say that somebody here, is not telling the truth. We are not in a position to say it is Cronje or it is the Special Forces people, or the Policemen who dovetailed on the back of Special Forces. We don't know and in those circumstances, there can't be full disclosure.

In respect of the Ribeiro's, it is not clear to us from the evidence that has been led here, as to whether both or only Dr Ribeiro was a target. It seems that Joubert's evidence is that they were both identified as targets. Cronje et al, Cronje certainly says it was just Doctor and Hechter seems to straddle the gap.

There are discrepancies as to what the Ribeiro's were alleged to have been involved in. Again there is the discrepancy in terms of the planning of this particular operation. Hechter and Cronje, again I make the submission, I say took steps to distance themselves from the actual operation. They said that they were consulted, they provided information and that was about all. From time to time they were asked what do you think about this, what do you think about that.

CHAIRPERSON: Well, at some stage it was the Army that took over the execution of these two people?

MR VAN DEN BERG: The fact of the matter is Mr Chairperson, that Hechter says I was told tomorrow is the day, he doesn't take it as far and he doesn't implicate himself as far as Naude did, that he was there, that he was aware of exactly what was going to happen and that he was to made specific arrangements to cover up or to sweep if that was at all necessary.

In fact, and I have a note here in respect of Hechter's evidence about the aerial photography, that is on the record of the previous hearing, Volume 2(E) and 462 and following where he says he was amazed at the extent to which the Defence Force went to plan this thing. Planes were flown, photographs were taken. Naude and Robey's evidence is that this was made available to them.

The one aspect I understand which was not cross-examined on, was the discrepancy between the number of operatives involved. Naude and Robey say that there were two persons brought in from South West, two foreigners. Chris Ribeiro's evidence was that there was a motor vehicle with four occupants, three of whom were black and one who was white. Again, the reference is to Volume 2(E), page 514.

Mr Chairperson, we say that - can I deal with one other aspect before I make the submission in respect of full disclosure?

CHAIRPERSON: Yes.

MR VAN DEN BERG: Adv Grobler was asked about the question of instructions, and the discrepancy or the apparent contradiction between what his client, Gen Joubert, said and what was not led by Brigadier Cronje. I don't believe with respect, that you can reconcile the two differences and it is not a question of whether they used a red Opel or a blue Opel, this is a material discrepancy. It impacts, we believe, very heavily on the question of full disclosure. Joubert testifies to a meeting between himself and Moller, that evidence was never led by Cronje and if you look at Cronje's evidence, he says that there were two thrusts which gave rise to the way in which they conducted themselves - there was the broad, general instruction by Viktor and then he received an instruction from Schoon to get involved with Special Forces. A meeting with the person in charge of Special Forces, with the General commanding Special Forces, I would have thought would have been far more impact, would have been far more important to him.

Again Mr Chairperson, we are left with the question of, we can't say that Cronje et al are lying or these people, these applicants here are lying, we don't know. We say that in the light of that void, those contradictions, we say that there cannot have been full disclosure. As it pleases you Mr Chairperson.

CHAIRPERSON: Thank you.

MR GOOSEN IN ARGUMENT: Mr Chairperson, Goosen, on behalf of the Ntuli family. As my learned colleague, we as well, did not prepare a written argument, if the Committee should wish that we hand one up, we can prepare it and do as such.

CHAIRPERSON: We would like it if you can during the course of this week, please.

MR GOOSEN: Very well. We have got the following problems concerning Kendall's statements, in so far as he did not give a full disclosure, the following points need to be looked at and with due respect, we hope that the Committee will ...

ADV DE JAGER: Well, we will pay attention to it if you mention to us what you are concerned about.

MR GOOSEN: I am sorry, may I argue in Afrikaans?

JUDGE KHAMPEPE: Yes.

CHAIRPERSON: Yes.

MR GOOSEN: Thank you very much. With respect, it is submitted that Mr Kendall did not give a full disclosure of relevant facts on the following grounds: Mr Kendall did know and participated in the planning because he had the best general knowledge of the area and the person, especially with regard to Cabinet Ministers; he reported to Cronje and Hechter, and although he maintains that he never attended any of the meetings, none of the other parties, could confirm whether or not he had been present.

Later by coincidence, he met the others next to the open field, opposite the Minister's offices and with respect, it is argued that it is very problematic to believe. We argue with respect, it is our submission, that he did have knowledge of the operation and that although he maintains that there was no other choice at the end of the day than to eliminate Piet Ntuli, we argue that there were indeed other options. He could among others have been detained.

ADV DE JAGER: But Kendall says that himself?

MR GOOSEN: That is true, indeed. With respect, in so far as Gouws and Oosthuizen are involved, we would like to mention to the Committee, as pointed out here before, with all respect, that no proper instructions were issued to either Gouws or Oosthuizen by Cronje. They were not members of the same Unit and the instructions did not fall within their operational ambit.

SHORT INTERRUPTION DUE TO POWER FAILURE

MS LOCKHAT IN ARGUMENT: In his evidence in chief, he said that his policy was to use minimal force and to preferably capture prisoners of war, and it seems that the method used to kill these then youths, was beyond proportionality and there were other methods as Mr Eric van der Berg had suggested, that they could have detained these activists. The fact that they were always planting and setting people up, they could surely set up these ten youths with ammunition, etc, and then detain them in terms of legislature available to them.

CHAIRPERSON: You are saying that there conduct was disproportionate?

MS LOCKHAT: That is correct Chairperson. And the fact that Special Forces was solely responsible for eliminating and killing, surely Gen Joubert also had a discretion not just to advocate killing persons, but also to use other methods?

JUDGE KHAMPEPE: But isn't the evidence, the thrust of the evidence, by all applicants, that there was this intensive reaction from the ANC and all other methods were not being effectively used by the South African Police and that is why Gen Joubert was asked to devise a plan that would in a way, come with results that the other methods of policing, were unable to bring about?

MS LOCKHAT: That is indeed correct Chairperson, he was asked to devise a plan, but we still feel that there was a discretion and especially the youths, they were youths in this instance, it was no proportional.

CHAIRPERSON: Thank you.

MS LOCKHAT: Regarding Naude's evidence in the Ribeiro matter, there is just certain discrepancies. In Naude's evidence he said he requested the file on the Ribeiro's because he solely wanted to know the address and the street map of where the Ribeiro's were situated. He also said that Cronje and Hechter concluded and informed him that the Ribeiro's had been targeted for elimination purposes. Cronje on the other hand said that Naude contacted him to provide a memorandum or a file on the Ribeiro's because Special Forces had identified the Ribeiro's as targets. That for me, just seems an issue in my mind, that we certainly don't know who really identified them as targets for elimination and who indeed is talking the truth in essence.

Cronje further says that Naude wanted to verify what was in their file and what was contained in the Special Forces' file, so I say, I reiterate that that is a problem in his evidence.

Regarding Oosthuizen and Gouws' evidence in the Piet Ntuli incident, it seems very unlikely, sure there was a close co-operation between the Forces, but it seems unlikely that their Commander Van Wyk was left out of this link. We never had an opportunity to actually cross-examine them, we did ask them whether they reported this to Van Wyk and the evidence was no, all secrecy had to be maintained in this instance. But then Van Jaarsveld's evidence today is that they did in fact report to Van Wyk and they obviously broke the so-called code of secrecy.

Our only question to Gouws and Oosthuizen is, was their intention not to implicate Van Wyk and are they still maintaining that code and cloak of secrecy? Thank you Chairperson.

CHAIRPERSON: Thank you.

MR GROBLER IN FURTHER ARGUMENT: Mr Chairman, ordinarily I would have the right to reply to whatever has been said against Gen Joubert. Most of the people have indicated that they intend to file further Heads. The problem with that is that they might be attacking my client, or they might not be. May I ask that a ruling be made that the Heads which are filed, also be served in the event of one party attacking another party in some or other respect? If they don't attack my client, I am not interested in seeing their further Heads, if they do, then I have a right of replying.

Mr Chairman, and may I then just in reply, because I don't want to file further Heads, make two observations. First of all, as far as full disclosure is concerned Mr Chairman, the way I read it and the way the Act makes sense to me, is the fact that there is a discrepancy between two witnesses, does not mean that either of them has not made a full disclosure. Full disclosure as I see it, is a disclosure of those facts which you could reasonably have within your knowledge. They may be incorrect, they may be correct, the question is have you told everything that you know or could reasonably have ascertained?

Secondly, somehow everybody seems to use Cronje and Hechter's evidence as a sort of yardstick by which everything else is measured. With due respect, the fact that Hechter and Cronje said something first, does not make it correct. Again, they may have been mistaken.

INTERRUPTION DUE TO POWER FAILURE

CHAIRPERSON: Before adjourning, if it is convenient at all, those who are going to hand in written Heads, will you kindly take the necessary precautions of seeing that people who would be affected by the argument that you are going to put in your Heads, are given a copy of your Heads, please, and may I urge on all of you, to see to it that these Heads get handed in before this session comes to an end this week?

Now, there is - I am about to adjourn just now, but there is an application that is set down for this session which we cannot proceed with because of the demise of the applicant, is that so?

MS LOCKHAT: That is indeed correct Chairperson.

CHAIRPERSON: Yes. That application relates to who?

MS LOCKHAT: The amnesty applicant is Mr Crafford, it relates to the incident of Joe Cele and Sibaya and Mpho matter. The applicant is deceased, Chairperson and therefore we are withdrawing the matters from the role.

JUDGE KHAMPEPE: Ms Sibaya?

MS LOCKHAT: Sibaya, thank you Judge.

CHAIRPERSON: Has that been conveyed to the families of the deceased?

MS LOCKHAT: Chairperson, that is so. In the Cele matter, the victims have liaised in chambers and they have been duly informed. In connection with the Sibaya and Mpho matter, the victims have been informed and some of them are here today, Chairperson, we have informed them and they are aware that the matter has been withdrawn, Chairperson.

ADV DE JAGER: That is matters appearing in Bundles 6 and 8?

MS LOCKHAT: That is correct Chairperson.

JUDGE KHAMPEPE: Ms Lockhat, who is present on behalf of the Sibaya and the Mpho family?

MS LOCKHAT: Chairperson, I can't get exactly to the person's name, but I can call our DRST just to give me exact details.

CHAIRPERSON: Can you ask them?

JUDGE KHAMPEPE: Can we request to find out who is present on behalf of Mpho and Sibaya?

MS LOCKHAT: There is just the one lady at the back with the red hat on, Chairperson.

JUDGE KHAMPEPE: What is her name, on behalf of who?

MS LOCKHAT: She is Maria Sibaya, the mother of Sibaya.

JUDGE KHAMPEPE: Ms Sibaya, may you please sit down so that we may explain to you what is happening. I will use English, so that you would understand me even if you don't put the earphones on. We want to explain to you that Ms Lockhat told us that the application in regard to Mr Sibaya would not continue today, because the person who applied for amnesty, the Policeman called Crafford, has since died. Because he has died, this application cannot proceed.

If this application does not proceed, we cannot grant any person amnesty in this application, therefore your application would not continue because the person who applied for amnesty has died, do you understand me?

INTERPRETER: Please repeat your request.

MS SIBAYA: The applicant was not alone in the commission of this matter. If Mr Crafford has died, there are other people who can proceed with this case.

JUDGE KHAMPEPE: Thank you for your submission. I want to tell you how this Committee works, this Committee cannot continue with the application for amnesty if the person who has committed this incident, has not come forward. The Committee will not be able to proceed with this application, unless the person who has applied for amnesty, come forward and testify.

With the knowledge of this Committee, the person who came forward in regard to the killing of Mr Sibaya, is Mr Crafford. The knowledge that there were other people who were involved, we don't have that. That is why we are not able to continue, with the knowledge that we have in front of us. Do you understand Ms Sibaya?

MS SIBAYA: Yes, I do but I have no peace. They know what happened to my child, should I just say it is okay whilst my child has died, and I don't know the circumstances surrounding his death?

JUDGE KHAMPEPE: We understand that you are a little bit troubled,, there is nothing more we can do because Mr Crafford, who was prepared to testify in depth about the death of Mr Sibaya, has since died. We understand that you don't have peace in your heart.

CHAIRPERSON: Just tell her that if it comes to our knowledge that somebody else applies for the death of Sibaya, she will be informed.

JUDGE KHAMPEPE: Ms Sibaya, if there are other people who apply for amnesty in regard to the death of Mr Sibaya, this Committee will be able to continue with that application for the death of Mr Sibaya. But if there were no people who applied for amnesty in regard to the death of Mr Sibaya, there is nothing the Committee can do in that regard. Do you understand me?

MS SIBAYA: Van Vuuren told me that he played a role in the death of Mr Sibaya. He was not the only one who was present at that time, and Van Vuuren agreed and told me that they slit his throat, I don't know Van Vuuren, but he told me.

JUDGE KHAMPEPE: You will remember Ms Sibaya, that in regard to Mr Van Vuuren, Mr Van Vuuren appeared before this Committee. I hope that, I believe that you were present when Mr Van Vuuren testified before this Committee.

MS SIBAYA: Yes, I was.

JUDGE KHAMPEPE: Therefore Mr Van Vuuren came forward in regard to the death of Mr Sibaya and explained in depth and you were present, so Mr Van Vuuren has already testified, he has been given amnesty. If there are other people who associated themselves with the death of Mr Sibaya, that hearing would continue, so that they would come forward and explain the role they played in the death of Mr Sibaya. We thank you for your presence.

CHAIRPERSON: The Committee will now adjourn and resume at half past nine, tomorrow morning.

MS LOCKHAT: Please stand.

COMMITTEE ADJOURNS