MR HATTINGH IN ARGUMENT: Thank you Mr Chairman, Hattingh on record. Mr Chairman, we are going to ask you and the Members of the Committee to accept Mr de Kock's version as testified to by him, and corroborated by Mr Baker, to the effect that the instructions to kill Mr Ngqulunga came directly from Gen van Rensburg and that on the first occasion when these instructions were given to Mr de Kock, Gen Engelbrecht was also present. You have the clear evidence of Mr de Kock on that particular aspect and then you have the evidence of Mr Baker, who confirmed Mr de Kock's evidence to the effect that after Mr Ngqulunga was killed, they went to Gen van Rensburg and reported to him fully on the operation. There is no evidence to the - evidence that has been tested under cross-examination, to the contrary. Van Rensburg did not give evidence, neither did Engelbrecht. If you have to choose between evidence which was tested under cross-examination as opposed to a mere affidavit Mr Chairman, we submit that you should give preference to the evidence, the oral evidence of Mr de Kock and Mr Baker.
Mr Chairman, we submit that it is clear, on the objective probabilities, it is also clear that these instructions emanated from Gen van Rensburg, you heard the evidence of Mr de Kock, you heard the evidence of some of the other applicants to the effect that Mr Ngqulunga had left Vlakplaas. None of them had any information, none of the members at Vlakplaas, had any information to the effect that Mr Ngqulunga had changed allegiance or was in the process of doing so. You heard the evidence of Mr de Kock as corroborated by the evidence of Mr Nortje to the effect that Mr de Kock was reluctant to kill Mr Ngqulunga. Mr de Kock's own evidence was that he was given these instructions by Gen van Rensburg in the presence of Gen Engelbrecht at the same time when he was instructed to attack the Chand house in Botswana, but that he ignored, he chose to ignore the instruction to kill Mr Ngqulunga until he received further instructions from Gen van Rensburg that the elimination of Mr Ngqulunga was then urgently required to be carried out.
Why on earth, Mr Chairman, would Mr de Kock have killed Mr Ngqulunga if they themselves had no evidence of the fact that Mr Ngqulunga was changing allegiance. Why would he have done so, having regard to the fact that in their minds, Mr de Kock's mind and the minds of the members of Vlakplaas, Mr Ngqulunga could not really give any information that could have harmed them personally. They testified to the effect that Mr Ngqulunga was not involved in any operation which could have jeopardised them in any way had he decided to speak out.
CHAIRPERSON: Well, if he had jeopardised the whole organisation, it would have jeopardised them and it might, might it not, have resulted in Vlakplaas being closed down?
MR HATTINGH: That is correct Mr Chairman, I must concede that that is so. Just speaking from a personal point of view, for protecting themselves against prosecution, they had no reason to believe that Mr Ngqulunga could cause them any harm, Mr Chairman.
CHAIRPERSON: I think it is common cause, isn't it, that the Griffiths Mxenge incident was before Mr de Kock took over command?
MR HATTINGH: Long before he was even transferred to Vlakplaas, he wasn't even at Vlakplaas at the time when the Mxenge murder was carried out, Mr Chairman, and therefore Mr Chairman, we submit that you should accept the evidence to the effect that the instructions came from Mr de Kock's commander, Gen van Rensburg, and that that is why he carried out, that is why he eliminated Mr Ngqulunga.
I have to deal briefly Mr Chairman, with the evidence which Mr de Kock gave at the Maponya hearing as such. Portion of the record has been placed before you Mr Chairman, but in this regard one must look at the evidence in its proper context and the one page that I read out yesterday which has not been handed in to you, page 335 of the record, Mr Chairman, it becomes clear that Mr de Kock was talking about the occasion when he was questioned by the Attorney-General of I think Natal at the time, Mr McNally, and Gen - I think it was Conradie, that he misled them, Engelbrecht apparently was present at this inquiry because he was appointed to assist McNally and Conradie in their investigations.
That was the occasion to which he was referring when he gave his evidence, and he says on page 335 -
"... that is correct Chairperson, I just want to mention that I answered the Chairperson's question, I did not mean to evade your question, yes, it would be one of denial as the whole Vlakplaas situation was a question of denial. I sat there with a Brigadier, a General and an Attorney-General and even though I wanted to tell them what I had done, I certainly wouldn't have told them in that office."
Mr Chairman, you will also take note of the fact that on that very same page, Mr de Kock also referred to the listening device that was installed in that room where he was being questioned, as he testified to yesterday, on page 335 he says -
"... Chairperson, before we entered that office, Joe Mamasela and I along with Lt van Dyk, Bosigo, all of us sat there in an office and the message to us was clear by implication and attitude, was "you know nothing, just deny it", and we did deny it in order to make matters easier for us with regard to the questions that were put to us. There was a tapping device placed in the office where we were being interviewed and the radio receiver was in the office where the others were seated, we had that brought in from the Technical Division."
Now Mr Chairman, you have not heard all the evidence in the Maponya matter, you have not heard the evidence of Mr Nortje who confirmed the evidence of Mr de Kock to the effect that Gen Engelbrecht in fact sent for the petrol books, sent him, Nortje, to go and collect the petrol registers at Krugersdorp and that he in fact went and collected them. Those registers were never tendered into evidence at any stage.
You heard Mr de Kock's evidence yesterday about this incident Mr Chairman, where he made it quite clear that although he did not explicitly tell Gen Engelbrecht that they were responsible for the killing of Maponya, I would submit with respect Mr Chairman, that it is clear from his evidence that he assumed that at the very least, he assumed that Gen Engelbrecht was aware of this fact and he had good reason to believe so, because of the questions that were put to him by Gen Engelbrecht. It must be borne in mind, with respect, Mr Chairman, that at that stage there was already evidence or information at least, to the effect that Vlakplaas was responsible for the abduction and killing of Mr Maponya. That was the version that was put up by Mr Nofomela. Gen Engelbrecht was aware of the basic allegations against the members of Vlakplaas as testified to or as deposed to in a statement by Mr Nofomela.
Against that background now Mr Chairman, he, Gen Engelbrecht, is now asking questions. He is told about S&T forms that were filled out to create the impression that Vlakplaas members who were allegedly involved in the abduction and killing of Mr Maponya, were at Jozini at the time, when that incident occurred. He is told that there might be a problem with regard to the petrol registers at Krugersdorp, he sends for them, he receives them and they are never tendered into evidence. He is told about the fact that Mr Nofomela had given the description of an incorrect vehicle and his version was that "so much the better for us", and generally speaking Mr Chairman, the evidence that Mr de Kock gave yesterday, makes it perfectly clear that Gen Engelbrecht knew that Vlakplaas was involved, even though he might not have been told so explicitly by Mr de Kock and that he was actively engaged in covering up the involvement of Vlakplaas in this killing. That is the only reasonably conclusion that you can come to, Mr Chairman, despite the fact that he says that he misled him. When he says he misled him, I submit Mr Chairman, he was referring to the version which he gave when he was being questioned by Mr McNally and the other gentlemen who were involved in the questioning, Conradie and Engelbrecht, because he couldn't at that stage, give the true version.
Then Mr Chairman, he states explicitly that subsequently after the inquest, he told Gen Engelbrecht explicitly that they killed him and that he was killed in Swaziland. If I remember correctly Mr Chairman, he also mentioned yesterday when he was recalled, that he also told Gen Engelbrecht, I am subject to correction, this is my recollection, that he also told him Maponya was not killed at Vlakplaas, and Engelbrecht didn't ask him where was he killed. He also mentioned the fact that if Engelbrecht wanted to know if Vlakplaas were in fact, if the members of Vlakplaas were in fact at Krugersdorp on the day of the abduction of Mr Maponya, all he had to do was to go one floor lower down and to ask Gen le Roux, which he never did. Why not Mr Chairman, because he knew, he knew exactly what was going on. With respect, nothing can be made of the evidence that Mr de Kock gave about the Maponya incident.
Mr Chairman, we have had so much evidence of covering up by Gen Engelbrecht, you unfortunately didn't hear the evidence of Klopper to the effect that he, Klopper, took Ferdie Barnard to Gen Engelbrecht, that they saw him in his study at his home where he assisted Barnard to prepare for his evidence at the inquiry into the, the inquest into the death of Mr Webster, of Dr Webster. All that type of evidence you haven't heard Mr Chairman. Gen Engelbrecht has chosen not to come and give evidence and to subject himself to cross-examination and therefore we submit that you should regard his affidavit with, that you should approach his version as contained in his affidavit with great caution.
Mr Chairman, if you accept that the instructions were in fact given ...
CHAIRPERSON: (Microphone not on)
MR HATTINGH: Mr Chairman, I am assuming that Mr Wagener is accepting that the affidavit which was handed up to the Committee, I think it might have been in the Maponya or in the Chand matter, and on several occasions, affidavits were handed in to the Committee by Mr Wagener, affidavits by Mr Engelbrecht in which he denied his complicity inter alia in the Ngqulunga matter. I don't know whether I am correct in assuming that you may have regard to that, on account of the fact that he did not formally place such an affidavit before you on this particular occasion.
The affidavit placed before you by the Attorneys representing Gen van Rensburg, Mr Chairman, should also be approached with great caution. We submit that there is ample evidence before you to the effect that the instructions were given by van Rensburg and Engelbrecht and that was the reason why Mr Ngqulunga was eliminated.
Mr Chairman, if you accept that, then with respect you should also accept that Mr de Kock relied on that information, even though objectively speaking the information might have been incorrect. It doesn't really matter whether as a fact, Mr Ngqulunga was in the process of changing allegiance and whether he threatened to disclose his involvement in the killing of the Mxenge's. If you accept that Mr de Kock was told that by officers as senior as Gen van Rensburg and Gen Engelbrecht, then you should also with respect, accept that Mr de Kock at the very least entertained a bona fide belief that Mr Ngqulunga was in fact guilty of what he was accused of, by Gen van Rensburg and that then clearly in our submission, establishes a political objective. Mr de Kock said so in so many words as did some of the other applicants. Most of the other applicants Mr Chairman said that if Mr Ngqulunga had disclosed his involvement in the killing of the Mxenge's at the time when the Harms Commission was still inquiring into that very same incident, it would have caused great embarrassment to the police in general and also to the government of the day. We submit therefore that the political objective has been clearly established.
CHAIRPERSON: What was the Harms Commission told about Griffiths Mxenge's murder, I cannot remember?
MR HATTINGH: Mr Chairman, I did not appear for the police, I appeared for the CCB and I wasn't present during the hearing when the police's incidents were investigated, but if I recall correctly it was a bland denial, it was a total denial, it wasn't a version put up to try and justify it or anything to that effect, it was just a blank denial of any involvement as such.
CHAIRPERSON: But haven't there been other evidence that they were involved?
MR HATTINGH: There was the evidence of Coetzee and Nofomela.
CHAIRPERSON: Yes.
MR HATTINGH: But those two gentlemen were both disbelieved by Mr Justice Harms.
CHAIRPERSON: If this present deceased had given evidence, he would have just been a third. It wasn't, he wouldn't have exposed something new, it had already been exposed and at that stage, nobody knew what decision the Commission would come to on that evidence?
MR HATTINGH: Yes Mr Chairman, that is correct, but I submit that it would have changed the whole complexion of the evidence of Mr Nofomela and the evidence of Mr Coetzee, if a further askari had now decided to come forward after he had first put up the version that he was told to put up by Vlakplaas, Mr Chairman. Mr Chairman, there is no such evidence before you, unfortunately we didn't realise that this question would be put to us, but I have just been instructed by Mr de Kock that Mr Ngqulunga was the only person who was able to go and identify the place where Mr Mxenge was murdered, that was one of the great worries, fears, that they entertained should he decide to disclose his involvement in this particular incident.
But Mr Chairman, we submit that at least Mr de Kock entertained a bona fide belief that the elimination of Mr Ngqulunga was necessary and having regard to the fact that he received instructions to do so, we submit that he was to all intents and purposes, in the position of a so-called footsoldier in this regard, he received instructions almost from the top and he had to carry out those instructions. We submit also Mr Chairman, that it is remarkable that no special effort was made to trace the killers of Mr Ngqulunga. You heard the evidence of Mr Nortje yesterday that where a policeman was murdered, every effort was made to try and trace the killers, as was done in the case of Mr Maponya's brother when he was suspected of having killed a policeman. That is in fact what led to Mr Maponya's death. Vlakplaas was brought in to try and obtain information about the whereabouts of Maponya's brother, Orderele. There is no evidence to the effect that the South African Police made any special effort, they did not even call on the assistance of Vlakplaas, to try and trace the killers of Mr Ngqulunga. It is remarkable too Mr Chairman, that Mrs Ngqulunga testified that she was approached for the first time by a policeman during 1994, some years after the incident, which corroborates the version of Mr Nortje to the effect that no special effort was made to trace the killers of Mr Ngqulunga and we submit that the only reason for that is that the police were aware that Mr Ngqulunga had been eliminated by Vlakplaas and that is why they made no effort to trace his killers.
CHAIRPERSON: But that does not mean that van Rensburg was involved, you have just said the police were aware that he was eliminated by Vlakplaas and made no effort to trace his killers. If it was Mr de Kock who had decided to eliminate him, the same would have applied, he would have been eliminated by Vlakplaas? That does not take you anywhere, does it? The police thought Vlakplaas, who was part of them, had done it, so they just shut up. It does not help to show that van Rensburg was implicated.
MR HATTINGH: Mr Chairman, the point that I am trying to make is that if the instructions to eliminate him did not emanate from van Rensburg and Engelbrecht, then they must have been unaware of the fact that Vlakplaas was involved and one would then have expected them to give instructions for special efforts to be made to try and trace the killers.
It is also remarkable with respect, Mr Chairman, that the very next day, two persons, Mr van Dyk and a person who was introduced as Engelbrecht, but I accept Mr Chairman, that the description of the second person doesn't fit Gen Engelbrecht, so two persons arrived there and they immediately informed Mrs Ngqulunga that Mr Ngqulunga had been killed by the ANC. Everything in our submission points to the fact Mr Chairman, that the top echelon of the police were aware of the fact, not only aware, they in fact gave instructions for Mr Ngqulunga to be eliminated, and also that it had to be done in such a way that the blame could be placed on the ANC.
We submit furthermore Mr Chairman, that Mr de Kock has made a full disclosure of all the relevant facts and that his application complies with the formal requirements of the Act and we submit therefore that he qualifies for amnesty and as far as he is concerned therefore Mr Chairman, we apply for amnesty for the crime of murder, the crime of defeating the ends of justice, sorry murder or conspiracy to commit murder Mr Chairman, he was in fact convicted of the crime of conspiracy to murder. Mr Chairman, there was argument before His Lordship Mr Justice van der Merwe as to whether the crime of kidnapping had been proved and I seem to recall that that was a further charge or an alternative charge, but the Court could not come to the conclusion that Mr de Kock was guilty of kidnapping, but that was before that Court had the version of Mr de Kock, on his version he might possibly also have committed the crime of kidnapping and therefore we seek amnesty for that crime as well, and then for what it is worth Mr Chairman, I am not sure whether they in fact committed a crime by being in possession of AK47s, but we would also seek amnesty for possibly the illegal possession of two AK47 rifles, with ammunition.
That then brings us to the applicant, Mr Simon Radebe, Mr Chairman. We submit that he was in fact a true footsoldier, that he received instructions to take Mr Ngqulunga to a specific place, there he realised that Mr Ngqulunga had been taken by members of Vlakplaas and the next day when he heard that Mr Ngqulunga had been killed, he realised that it must have been done by Vlakplaas. He did not take any steps as a policeman, to report the kidnapping and murder of Mr Ngqulunga and we submit Mr Chairman, that he did, what he did he did on instructions, he failed to do so because he was afraid, but as far as the political objective is concerned, we would ask you to accept the evidence of Mr de Kock as contained in the supplementary affidavit, Vlakplaas, where he deals extensively with the fact that Vlakplaas was an Operational Unit of the South African Police and that their actions were directed against political opponents of the then government of the day and we submit therefore Mr Chairman, if you also look at Mr Radebe's general background to his application for amnesty, on page, on the third page, it is not numbered, the third page thereof under the heading "Political Objectives and Motivation", he also says -
"... the political objectives or objective was to intimidate the structure of the ANC/PAC and other liberation movements and in so doing, eliminate enemies of the State which were specifically the PAC/ANC affiliated movements."
We submit therefore, Mr Chairman, that he probably realised that Mr Ngqulunga was eliminated because he had become a danger to Vlakplaas as such and that he could have exposed Vlakplaas for what it really was or further expose it and he could have exposed Vlakplaas' involvement and perhaps expose is the wrong word, he could have corroborated the evidence of Mr Ngqulunga and Mr Coetzee, to the effect that Vlakplaas was involved in the killing of Mr Mxenge. We submit therefore Mr Chairman, that he also had a political objective, he carried out his orders and that he made a full disclosure as far as that is concerned, and we submit therefore that he also qualifies for amnesty and as far as he is concerned, Mr Chairman, we apply for amnesty for the crime of defeating the ends of justice and possibly the statutory offence of failing to perform his duties as a policeman by reporting the crime that had been committed. Thank you Mr Chairman.
CHAIRPERSON: Tell me, didn't Mr de Kock give any evidence about having approached Mr Radebe to tell him to build up his friendship with the - sorry, did Mr de Kock give any evidence about having instructed Radebe some time before, to build up his friendship with the deceased?
MR HATTINGH: Not to my recollection, Mr Chairman. No, I don't think he did and I am not certain that that topic was canvassed by any of the other legal representatives under cross-examination.
CHAIRPERSON: Because his evidence was rather to the contrary, wasn't it?
ADV SANDI: My recollection is that that particular information was contained in the written application of one of the applicants, but I don't remember which one specifically.
MR HATTINGH: It was certainly testified to by Mr Nortje, and I stand subject to correction but I think he also mentions that in his written application.
CHAIRPERSON: My note of Mr de Kock's evidence was that the plan was for Simon Radebe to take him to a certain place. He was handled on a peripheral need to know basis, so he could not later become a danger.
MR HATTINGH: Yes.
CHAIRPERSON: That is not somebody who had been told "get close to him so you can influence him"?
MR HATTINGH: Yes Mr Chairman.
CHAIRPERSON: That is a very different version?
MR HATTINGH: Yes, Mr de Kock certainly did not give that evidence, Mr Chairman.
CHAIRPERSON: What?
MR HATTINGH: To the effect that he instructed Mr Radebe to get closer to Mr Ngqulunga, he did not give that evidence and you are quite correct in saying Mr Chairman, with respect, that his version is rather to the effect that Mr Radebe was kept in the dark as far as possible. Thank you Mr Chairman.
CHAIRPERSON: Right, sorry one point I want to raise, it is not directly with you, it is really with Mr van der Walt, but I think I should raise it now in case any of you want to comment on it or think if it has any relevance. It is an impression that the deceased's widow has, I gather from her evidence, that this evidence about the shooting is incorrect in that when she saw her husband after the shooting, he was wearing the same clothes as when she last saw him and there were no bullet holes. It seems to me, this is what I invite comment on, that when she last saw him, he was going to work at the Headquarters and was presumably wearing a uniform of some sort, it may have been overalls, I am not sure what they wear there, but it wouldn't have been casual clothing working at police Headquarters in Pretoria. She saw him after the post-mortem I gather, it is quite clear and I think any of us who have dealt with evidence about post-mortem before, that the body would have been stripped?
MR HATTINGH: Yes Mr Chairman.
CHAIRPERSON: And it seems to me most probable that where they were dealing with a policeman who was thought to have been killed by the ANC, they would I am talking about the people in the mortuary do all they could to comfort the family, and would rather when they redressed the corpse, have taken a similar uniform from somewhere else, than put the body back into the ripped, torn, bloody clothing, which it had been in before. So I don't think it is right to draw an inference from the fact that when she saw him, the clothing was no longer bloodstained and torn, that this means a number of shots were not fired?
MR HATTINGH: Yes.
CHAIRPERSON: Because if one looks at the post-mortem report, it seems to indicate a great many injuries?
MR HATTINGH: Indeed Mr Chairman, and the clothes must have been literally covered or saturated with blood.
CHAIRPERSON: And holes?
MR HATTINGH: Yes, Mr Chairman.
CHAIRPERSON: So I am going to ask Mr van der Walt, it seems there could be just a misunderstanding there and that certainly there is no evidence that I think at the moment shows that somebody didn't empty a magazine at the deceased.
MR HATTINGH: Thank you Mr Chairman.
MR BOOYENS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, I would ask the Committee, I am going to address the Committee on the position of Bellingan, Botha and Baker, dealing with all three of them together, because in my submission, they are in the same boat.
I would ask the Committee to grant them, all three of them, amnesty for the crimes of kidnapping, murder, assault on which I would just like to say something why I add that, because I thought Your Lordship would - there is evidence that on the journey there, he was sort of silenced when he was making a noise, using a cosh. It may perhaps be technically be argued that that is an assault independent.
CHAIRPERSON: That was after the kidnapping had commenced?
MR BOOYENS: After the kidnapping, before the murder.
CHAIRPERSON: Before the murder?
MR BOOYENS: And it cannot be said that it contributed to the death. It is kidnapping, assault, murder, possession of a machine gun and ammunition therefore.
CHAIRPERSON: Well, that is the AK47?
MR BOOYENS: That is the AK47 and the ammunition, that is a separate offence and any delict arising there from, the reason for that being we heard yesterday that there are still minor children, so the issue of (indistinct) might not come in. Mr Chairman, with respect, it does not matter and if we accept Mrs Ngqulunga's evidence that she is convinced that her husband did not change sides, we accept that is correct, even if we accept Mr Ngqulunga did not change sides, as far as these three applicants are concerned, it does not matter because they were told, they bona fide believed that the man had changed sides, and that being the case, and if the people, I think it is speculation that it was probably to cover the Griffiths Mxenge murder, that is probably close to correct, but that was not something in which the present encumbrance of Vlakplaas were involved. You yourself heard the amnesty application of Dirk Coetzee in that regard, Mr Chairman, those were different people involved, not one of them were involved. But that matters not one bit.
I would respectfully say that the Committee should hold that these three applicants bona fide believed that the deceased was in the process of changing allegiance and was already also, while doing so, supplying information, sensitive information that he obtained.
CHAIRPERSON: Baker is slightly different from the other two, isn't he? Baker, as far as I can recollect, is the only one who speaks of direct contact with the Generals above, and reporting subsequently, subsequently reporting back.
MR BOOYENS: Yes.
CHAIRPERSON: Even the others simply say de Kock told us, de Kock told us, and we formed impressions from it, we drew our conclusions and they say we believed what we were told and we carried out our duties.
MR BOOYENS: But of course Baker's position up until the murder is committed, is no different?
CHAIRPERSON: No.
MR BOOYENS: Where there is actually confirmation of what Mr de Kock told him, I beg your pardon, that Nick van Rensburg was involved. So, his evidence is corroborative in nature, of an order from above, Mr Chairman, and I would respectfully submit that there can be very little doubt that they bona fide believed as required in terms of Section 20(2)(b) that they were fighting somebody who was a supporter or at least, yes a supporter of such an organisation, obviously somebody who gives information to an organisation involved in the struggle, would be regarded as a supporter. In the circumstances, it is our submission that there can be no doubt that in the circumstances they had a political motive.
If I may just deal with a few loose aspects that had been raised during the questioning of these people, there is the issue of the ANC was unbanned at that stage Mr Chairman. We've got the statistics available, in the first place there is the document that Mr Baker identified, we see in it that Vlakplaas at the time when the murder was committed, was still being used as a Unit to trace so-called terrorists. We see from the statistics that were handed in and that was handed in on a previous occasion, that violence in fact was at its peak at the relevant time. Another issue that was raised, was "well, why didn't you ask him any questions", Mr Chairman. Mr Chairman, that with respect is a bit theoretical. You received an instruction, "kill the man", you've got no background information, so it will be like walking into cross-examination without having had a consultation with anybody to tell you what you can ask this witness, you ask him did you rejoin the ANC and he says no, what do you do? Turn back?
CHAIRPERSON: But mustn't one also, this is one of the problems that I see in having separate applications as we do, that in assessing their behaviour, one must have regard to the history of Vlakplaas as a whole, that this was not a unique incident. If it was an ordinary police station and this suddenly happened, one would expect questions to be asked, one would expect policemen to say what is this, what are we getting involved in, but Vlakplaas for years had been carrying out what you can call hit-operations for other members of the Police Force.
MR BOOYENS: Vlakplaas, and we have heard the evidence, Vlakplaas was a Combat Unit that got involved in shoot-outs across the borders with other people and it got involved in executions of perceived political enemies of the State, that was what they were there for, despite what everybody who tried to say something to the contrary, today wants to tell us. That is what Vlakplaas was, I think that sums it up. Not only that, but also, and then the gathering of information about any infiltrators, Mr Chairman.
CHAIRPERSON: That was a separate function really for the askaris? The askaris were there to recognise infiltrators and to give information on them. The other South African Police members of Vlakplaas were there as an Operational Unit which was called in to carry out operations all over the country and outside.
MR BOOYENS: And that tradition did not start when Eugene de Kock came there, it started when Dirk Coetzee came there, and you have heard the evidence, but in 1981 already, Vlakplaas is used to go and murder a "meddlesome Attorney" in Durban.
ADV SANDI: Sorry just one thing Mr Booyens, about this particular applicants you are arguing about, is it not also correct to say that it is not even part of their function, it is not part of their job description of these applicants to verify the information they are given by their superiors?
MR BOOYENS: Sorry Mr Chairman, they haven't got the infrastructure, even if they wanted to. They haven't got the infrastructure and in any case, there sits this mighty security apparatus at Head Office, that tells them Brian Ngqulunga is doing this and this and this with the spies and the informers and the telephone tapping and all those things, what could they do? Thank you Mr Chairman.
ADV SANDI: As I understand, it was not really a question or a danger of Mr Ngqulunga exposing what he personally had been involved in, but surely in the course of his presence at Vlakplaas, he must have come across some information pertaining to incidents other people were involved in, that he could have leaked out as well?
MR BOOYENS: He could probably have had, Mr Chairman, Mr Sandi through you Mr Chairman, but remember Ngqulunga was one of, it was Ngqulunga, Chikalanga, Joe Mamasela and Nofomela who killed Griffiths Mxenge.
CHAIRPERSON: What my colleague has just put to you is one of the factors which I think we have to take into account, as to whether this could be, must have come from orders from above, or could have been a decision taken at Vlakplaas level. I think one must accept that he could have taken the lid off Vlakplaas itself?
MR BOOYENS: Oh yes, like anybody else at Vlakplaas could have done.
CHAIRPERSON: Yes.
MR BOOYENS: No, I mean it will be naive to suggest that that is not a possible one, a possibility, but I would submit that the overwhelming probability in this once, if we look at the entire pattern, if we look at what Nick van Rensburg for example say about why he thinks Mr de Kock would have had him killed. To sum it up, about the zero detonation handgrenades, you Mr Chairman, and I think this full Committee heard the zero detonation handgrenade application, not? The Chairman certainly did, the zero detonation handgrenades, there is no reference to Ngqulunga, it was Joe Mamasela that was involved and Mr de Kock was on the peripheral there, it was an East Rand operation. It was the Technical Section, Mr de Kock acted as a man who carried something and Joe Mamasela handed over the handgrenades, and that was it.
CHAIRPERSON: He could have taken the lid off Vlakplaas.
MR BOOYENS: He could have.
CHAIRPERSON: But evaluating the evidence, one has to ask oneself, but he left Vlakplaas, he had been away for sometime, he was no longer in contact with them, why should they suddenly want to kill him now?
MR BOOYENS: Mr Chairman, no absolutely, we cannot get passed that one. I mean if Vlakplaas regarded Brian Ngqulunga as a security risk, then they would, I think they would rather have kept him in the fold, eliminated him at a much earlier stage. It is significant that all of a sudden once he has left there and so on and once the Harms Commission, and like you pointed out Mr Chairman, remember the Harms Commission was still going on, it hadn't made its findings known, and there was an uneasiness about this one, and one bit of probability here, which so strongly indicates Head Office's involvement and that is in Mr de Kock's evidence where he says the following at the time when we were preparing for the Chand attack, two things are discussed, he is given certain reasons and he ignores them. Now obviously Nick van Rensburg is getting worried about this, and then a subsequent story, a further story, now the man has changed sides, he has gone over to the opposition on the second occasion. Mr Chairman, the probabilities, if we look at the probabilities in this one, the probabilities are so much stronger, that this operation was done on instructions from Head Office to cover something up, maybe the true reasons were not given to them. They were given reasons and the probabilities are that it was not to cover up something about Vlakplaas. I think if Vlakplaas, operating the way they do, they would have probably killed him if it was a Vlakplaas decision, they would have killed him before he gave evidence before Harms.
CHAIRPERSON: Is it not also a possibility that the decision to eliminate him, was not in fact based on his fear, a concrete fear that he was going to give evidence or switch over to the ANC, but because of what we have heard of his physical deterioration, his emotional deterioration, that somebody and I am not saying at what level, may have decided this man is just going one way and at some time or another, he is going to be a real embarrassment to us, so we better eliminate him?
MR BOOYENS: He is a walking time-bomb, I don't know when he is going to explode?
CHAIRPERSON: Yes.
MR BOOYENS: Mr Chairman, that could very - Mr Chairman, I agree with respect, the man was a walking time-bomb, that could very easy have been the reason as well. There could be any number of reasons that were not really disclosed, what were disclosed to the operatives who did this job and I think you Mr Chairman, was also in the hearing of the Jack Cronje cluster where you also heard the evidence of Wouter Mentz, who was already granted amnesty in this matter, and his evidence was also along the similar line. The operatives were given a certain scenario, they acted on that scenario, and there is no way that we can say that they did not act bona fide and for that reason, it is my respectful submission they had a political motive. The one other thing raised by my learned friend is, yes, but there were other ways. I think that borders on the proportionality aspect. Mr Chairman, to kill somebody with a firearm is cruel, but whether you fire one shot or ten shots, this isn't the case of a man that was tortured to death. Then it may come into it or something like that. They received instructions, the instructions was "let it look like a hit by MK", empty an Eastern Block origin machine gun on him and really I think that point by itself is really neither here nor there. The proportionality would have come in if we could say of the operatives well, in light of the instruction you received, a theoretical possibility, could you have done something else like chase him out of the country or something like that. On the instructions they had, and I am just mentioning that as a possibility, they had to kill the man, kill him with perhaps in the circumstances, as little cruelty as possible, and that is as far as I can take that point.
Unless there is something specific on which the Committee would like to hear me, those are the submissions on behalf of all three the applications.
ADV SANDI: Sorry, just one thing, wasn't there evidence here that due to the laxity that existed at the Head Office, the deceased had access to secret documents which were not supposed to land in the hands of anyone?
MR BOOYENS: The evidence was that the postal section handled top secret documents that were not properly in an envelope or something like that, but remember that is Head Office, Vlakplaas had no control over that Mr Chairman. The reason why that evidence was actually adduced, was to indicate that if you know somebody is in the postal section and if you know something about the way, remember I think somebody said Botha, Botha worked at Head Office at some stage and Bellingan, I asked Mr de Kock, Mr de Kock confirmed it, that why that was was just to indicate that it wasn't a completely far-fetched idea to say that the deceased could have, in other words the statement is made to him that the deceased has got access to top secret information which he leaks to the ANC. The deceased is not a Constable working nightshift in Putsonderwater, that will never see a top secret document, he is there, the top secret documents - so it is not, we cannot say that the applicants, when they heard the man is working in the postal section, he potentially had access to those documents, Mr Chairman.
ADV SANDI: That could have been one of the things which motivated those who gave the order for the assassination?
MR BOOYENS: Oh yes, Mr Chairman, I have no quarrel with that, those who gave the order to kill the man, could have - like I say, maybe there was information, maybe there was really information that he leaked information, I am not discounting that possibility. The only basis on which I argued this, I said it does not really matter if that information that were given to the operatives, was correct or not. But indeed if there was information, then those people could make the deduction not only he is going to the ANC, but it is also possible for him to get valuable information to them.
CHAIRPERSON: What appears really to be incredible and I don't think this reacts to Mr van Rensburg or Engelbrecht's discredit, is to hear because we have heard, that somebody who had been an askari, who was suffering from emotional problems, who was known to have shot his wife, was allowed to continue working in one of, what appears to be one of the most top secret sections of the Security Police? The evidence we heard was apparently it was not only him, we were told that people were seen reading letters in the lifts and walking along the passages.
MR BOOYENS: Yes Mr Chairman.
CHAIRPERSON: And it makes it all the more confusing because it may have been a horrible shock to somebody to have suddenly discovered that this man had been looking at this sort of document and that something must be done quickly about it?
MR BOOYENS: It is quite possible Mr Chairman, I agree. Mr Chairman, unless any members of the Committee, those are the submissions I would like to make, thank you.
ADV SANDI: Amongst the documents that were submitted to the Committee, is a statement by Joe Mamasela who seems to - what he says in his statement seems to coincide to some extent, with what has been said concerning the source of the orders. I am not sure if it was deliberate not to refer to his statement, at page 149?
MR BOOYENS: ... where the elimination of everybody was, it was concerned Mr Chairman, all I can say of Mr Mamasela, I have, if Mr Mamasela would have made himself available for cross-examination, we obviously would have challenged some of the things he said. He did not make himself available and nobody and I would respectfully say, wisely, because I have had the privilege of cross-examining Mr Mamasela three or four times already, nobody wisely decided to call him, Mr Chairman. I think one should be extremely cautious about this so-called meeting where we've got Baker's name hand-written into it as well, and it seems that we have got a whole Sanhedrin there and de Kock deciding it Mr Chairman, and what I find even more significant is here you've got Brigadiers and Colonels and people like that, and out of the blue Mr Joe Mamasela gets invited to sit in on a meeting where the demise of one of his colleagues is discussed, not only that, but he refused to do it and he lived to tell the tale, notwithstanding the fact that this man is subsequently murdered and he, Mamasela, if that story is true, must have had then immediately have realised who sat behind the story. So with all due respect Mr Chairman, I think Mr Mamasela's statement to put it mildly should be treated with extreme caution. Thank you.
MR LAMEY: ... Chairperson, not long, but we could take the adjournment now if it suits the Committee?
CHAIRPERSON: We will take the adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
MR LAMEY IN ARGUMENT: There is corroboration by Mr Nortje of Mr de Kock's evidence, that Mr de Kock received the instructions from Security Headquarters, specifically also Gen van Rensburg at the time for this instruction. The fact that Mr Nortje has testified that he has been told by Mr de Kock at the time that he received this instructions from Brig van Rensburg and also that he had been told by Mr de Kock that Mr Engelbrecht is also aware of it, I think gives credence also that that has in fact happened, that the instruction emanated from Head Office.
Now, my submission is in all probability indeed something must have happened and there must have been a concern at Head Office while Mr Ngqulunga was working at Head Office, that there was indeed a serious risk that he could change his version about what he had testified before the Harms Commission. Now, the further probability is that as you have also pointed out, that his mental state which apparently deteriorated also after his evidence before the Harms Commission, must have been of concern to specifically Head Office, because he was at that stage working there, under the supervision.
CHAIRPERSON: Why keep a man like that in a department where he is dealing with secret documents, if they had this concern, surely they would have transferred him out of the section he was in?
MR LAMEY: Chairperson, yes, the probability in all probability is that working there, they were in a position to closely monitor also Mr Ngqulunga. The evidence was that yes, he did work in the postal section, we are not sure as to what access to what information he had while working there, but Chairperson, certainly Mr Ngqulunga not being at Vlakplaas and also the version of Mr Nortje that Mr de Kock wasn't at all happy with the, or that Ngqulunga didn't really pose a threat to him or that he was reluctant to carry out, also in my submission, strengthens the probability that this whole idea emanated from Head Office and there must have been a reason for that. There must have been a reason also given the fact that he did testify before the Harms Commission and his evidence did go well, as far as the Security Police is concerned, so something must have happened thereafter Chairperson. As far as Mr Nortje is concerned, he is not in a position to know exactly what, apart from that what was told to him by Mr de Kock which he as a subordinate had to, had no reason to doubt. Mr de Kock also, himself, testified that he had no reason to doubt that instruction, although he personally was reluctant to do it.
ADV SANDI: Sorry Mr Lamey, let us suppose for the moment, let us suppose for a moment that Mr de Kock was telling a lie to your client, Mr Nortje, to say that there was this order from Mr van Rensburg that the deceased should be eliminated, does that affect the position of your client in any respect?
MR LAMEY: No, my submission is not. One can argue, submit possibly Mr de Kock did tell Mr Nortje a lie, but Chairperson, even on that basis, it wouldn't affect Mr Nortje, because he bona fide believed the reason for the instruction emanating from Mr de Kock and he had no reason really at the time, to disbelieve Mr de Kock. Everybody at Vlakplaas confided in their Commander, being Mr de Kock, who was a strong leader, we know that already and Chairperson, from his point of view, being a subordinate, had no reason to disbelieve that. Chairperson, in the total picture, one would also, can just imagine that there must have been grave concerns also in the upper echelons that Mr Ngqulunga could become a second Nofomela, because he was in fact involved also in the Griffiths Mxenge matter, he had intimate knowledge of that, and should he later change his version, after his evidence before the Harms Commission, it would have then in all probability given more credence to the Nofomela and Coetzee version. Chairperson, thinking back also now, the fact that he had been eliminated removed that danger and his evidence then which he gave before the Harms Commission, stood as it is and in all probability the Harms Commission made its findings on, also based on the evidence of Mr Ngqulunga which was in conflict of the evidence of Mr Nofomela and that of Coetzee.
Chairperson, at the time, there has been evidence that at the time the ANC as far as the Security Police itself, was still a risk to the security of the State and the existing government and despite the fact that they had been unbanned, and one could in all probability assume that had Mr Ngqulunga changed his version, and if he had been allowed to live to change his version, certainly that would have been exploited to the maximum in the interest of the ANC at the time. Chairperson, my submission is that as far as Mr Nortje is also concerned, that his participation in this, and his role and the instructions that he had received, from his point of view, at least falls in the category of Section 20(2)(f), if not also in terms of Section 20(2)(b) of the Act, in that the ultimate aim was that to combat the struggle of the ANC at that stage, or that at least that Mr Nortje from his point of view, had reasonable grounds also to believe that he was acting in the cause and scope of his duties, receiving an order from Mr de Kock and also being told that this comes from Security Head Office.
Chairperson, we also know that the position of the subordinates in Vlakplaas was such that they were not in a position to verify or check or really dispute the justification of orders that they received, specifically also against the background that Vlakplaas was, as the Chairperson has indeed pointed out, more of a Combat Unit in the Security Police, they were not ordinary Investigators who would be in a position to debate something with their higher Officer Commanders, and they acted under a strict command structure, as such, being then also a military orientated, military type orientated Unit.
Chairperson, that is in a nutshell my submissions also on behalf of Mr Nortje, thank you.
MR SIBANYONI: Just one question Mr Lamey, talking about Mr Ngqulunga becoming a second Nofomela, isn't it so that in his case, the criminal charges was sort of sorted out, they were dropped by the time he was killed? In other words there was some assistance either from the police or from Vlakplaas which resulted in the charges against Nofomela being dropped, because the event was ultimately regarded as an accident, the shooting of his wife?
MR LAMEY: I am not sure whether the charges were dropped, but even if we assume that they were, my submission is not in the sense that he would, Nofomela made his revelation while he was, I believe, waiting to be executed, after he received the death sentence. Surely Mr Ngqulunga, I think wouldn't have followed that same route against the background of the offence that he has committed, but what I mean by the comparison between Nofomela being the starting point of this whole revelation, is that Mr Nofomela changed his to a certain extent, his loyalty at that point in time, and it would appear here that there was a reason to believe from Head Office, or there was a real potential risk that this could happen, or this was going to happen, or was indeed happening with Mr Ngqulunga. In that sense, one would have had a second or then apart from Coetzee, then a third, one can also draw the comparison with Coetzee, then a third witness so to speak about the atrocities of Vlakplaas, which he could have been able to reveal. Certainly also Mr Ngqulunga as was already pointed out, apart from only his direct knowledge of the Griffiths Mxenge matter, must have also contact with other askaris. We also know that the askaris used to be friends with one another, they also were a group as such on Vlakplaas and some of the other askaris would have known about, later, also atrocities of Vlakplaas. And even if Mr Ngqulunga didn't have direct knowledge of it, surely he had hearsay knowledge also of other highly confidential information that would have, that was a potential security risk to the Security Police.
MR SIBANYONI: Thank you.
CROSS-EXAMINATION BY MR WAGENER: Jan Wagener, Mr Chairman. Mr Chairman, firstly, you asked certain questions to Mr Hattingh regarding the position of the police at the Harms Commission. I don't know whether you would like me to be of some assistance in that regard, I can.
CHAIRPERSON: I gather you have some knowledge of the fact.
MR WAGENER: Mr Chairman, briefly what happened is a legal team was appointed to represent the then Minister of Law and Order as he was, the Commissioner of the South African Police and in essence the command structure of the police. I as an Attorney was involved in that team, we instructed counsel, including senior counsel. Because at an early stage we foresaw the possibility of conflicts of interest in respect of more junior members and operatives in the police, a second legal team was appointed to represent them consisting of a private Attorney and also counsel, including senior counsel.
As far as I have it, that team was appointed for individual members and as far as I have it, all the present applicants who were in that team, obviously they consulted with their legal team and provided instructions, based upon that, their leader, Mr Maritz, cross-examined Nofomela and Dirk Coetzee extensively and the end result was that Judge Harms in his report, found the evidence of those two gentlemen untruthful, or not dependable and he made no findings adversely to any member of the police. That is briefly my recollection, Mr Chairman.
CHAIRPERSON: Thank you.
MR WAGENER: Mr Chairman, regarding Gen Engelbrecht, once again I would wish to put on record that he does not formally oppose any of the present applications before you, amongst others on the basis that in a legal sense, an applicant in another hearing, Mr Mentz, has already received amnesty in regard of this incident, but however Mr Chairman, he puts in dispute certain of the evidence advanced to you by specifically Mr de Kock and I would briefly wish to address you on that.
Mr Chairman, I think with all respect, the correct starting point would be the fact and this is common cause, that Mr de Kock is a liar, he has been a liar over many, many years. He has lied to a number of Courts, investigations, tribunals, Judges, it is common cause Mr Chairman, that he was taken through this history of deceit at his criminal case, by the Prosecutor, Mr Ackerman, where he admitted to this, but with the irony Mr Chairman that as far as I also know, in each and every case where he did so, he was at the end complimented by the Chairman or the Judge or the Magistrate for the excellent nature of his evidence.
Mr Chairman, I unfortunately have to argue this here that this is once again happening in this process before you. Mr de Kock has some axe to grind with my client, he has been doing so in a number of amnesty hearings and my client has every time been compelled to partake to defend his rights. Just briefly to recap Mr Chairman, I have cross-examined Mr de Kock on a number of occasions on the whole issue of the closed nature of the Security Branch, specifically during the 1980's. The extreme extent to which there was adhered to to the need to know principle. This is common cause, this is part of previous records where he was cross-examined. He also testified to the effect that even within the Security Branch, there was a smaller circle of higher confidentiality amongst the members of Vlakplaas. I had a quick look at a part of the record given to me by Mr Steenkamp the day before yesterday, where this issue was once again put on record, where on page 319, I asked Mr de Kock about all the incidents that he has applied for amnesty and on page 319 I asked him -
"... these deeds or offences which have to do with your amnesty application, would you have discussed these acts with your friends?"
His response was -
"... not friends beyond the parameters of Vlakplaas."
On page 321 along the same lines Mr Chairman, I asked Mr de Kock -
"... so what you are actually telling us Mr de Kock, is that your involvement in that series of offences and the facts pertaining thereto, remained as far as you are concerned, within your small group, namely Vlakplaas?"
To which he responded -
"... I believe that Chairperson."
Mr Chairman, if you accept that, I would once again wish to put the position of Gen Engelbrecht or Brig Engelbrecht, as he was at the time, again on record. Up till the time of the death of Mr Ngqulunga, he has never been a member of the Security Branch, he was a Detective. He was a complete outsider, he was not one of this trusted inner-circle of comrades-in-arms pertaining to the Security Branch and specifically to Vlakplaas. We have filed affidavits on his behalf previously, and it has been put to Mr de Kock to which he has conceded, that Gen Engelbrecht was exactly what I have put to you now. He was not the Investigator of the Harms Commission as has been said repeatedly. Yes, Mr Chairman, he was allocated or asked to assist the legal representatives of the police at the Harms Commission, in other words to liaise with the legal team and this has been said in previous affidavits of Gen Engelbrecht before you, to assist in presenting the evidence of the police to the Harms Commission, nothing more nothing less.
CHAIRPERSON: Wasn't it said in evidence before us too? I have a hazy recollection of one of the witnesses having said that he was there to help the police cover up, something to that effect?
MR WAGENER: That is correct, yes. Mr Chairman, I would, I am going to deal with this popular phrase, to cover up, I intend dealing exactly with that. Before doing so Mr Chairman, in this present application, I raised the point with Mr de Kock that in a previous matter, that is the Maponya matter, he also made a number of accusations against my client regarding the fact that he would have known that de Kock and his men had killed Maponya and that he was afterwards part of the cover up, but that he had conceded in cross-examination that not to be the position. This obviously caused a dilemma to him and his legal team, therefore he was recalled yesterday to try and salvage that damage, unfortunately Mr Chairman, I have listened very carefully to his evidence, he was unable to do so. The best he could do was to testify that my client, should have known, he assumed that, words to that effect, but he was very careful not to say, because he knew that would have been another lie, he never told my client that he and his men had killed Maponya. I don't even know Mr Chairman, whether that is all relevant with what we are busy with here today, because we are dealing here with Brian Ngqulunga, and I think that Mr de Kock will have to live with the record of the proceedings in the Maponya matter on its own merits, whether he will be granted amnesty there or not. In this matter before us today Mr Chairman, the one of Brian Ngqulunga, we have dealt to some extent with the instructions as was testified to by Mr de Kock here in the previous hearing of the Chand matter. If my memory serves me right, you were also Chairman there, so there we handed up an extensive affidavit, denying those meetings where my client allegedly gave the instructions or requested "that a plan had to be made with Ngqulunga". Mr Chairman, just looking at the probabilities, at the time my client had no interest in Mr Ngqulunga, he was not his Commander, he was not a member of the Security Branch, he couldn't care if Ngqulunga, if Brian Ngqulunga spilt the beans regarding the Security Branch, what they did or did not do in the previous decade. My client wasn't involved in that at all. At that time he was a Detective, trying to solve ordinary crimes in this country.
ADV SANDI: Sorry, Mr Wagener, your client was not in the Security Police, but was he not also part of the police establishment whose image had, who image and credibility had to be protected?
MR WAGENER: Mr Chairman, it would have been, it can be argued that it is in the interest of the top structure of the police to see that law and order is properly maintained, and if individual members committed certain crimes, that they can even be prosecuted, so that same suggestion can be turned around also.
ADV SANDI: Do you concede that your client is perhaps in a bit of a disadvantage vis-à-vis the evidence of Mr de Kock which was tendered orally and was subjected to cross-examination? Your client did not come to testify here orally, he just sent a legal representative to come and just give his version, pertaining to the matter, to deny that he was part of the order?
MR WAGENER: Mr Chairman, my client's denial is on oath and I am instructed to argue that with the evidence of Mr de Kock on the one hand, as tested under cross-examination in this hearing and previous hearings, that you should take cognisance thereof, as compared to my client, who has made an affidavit and then balance the probabilities.
ADV SANDI: But he has not been subjected to any cross-examination, to test the truthfulness of his version as against that of Mr de Kock and others, perhaps people like Mr Baker also?
MR WAGENER: Mr Baker had nothing to do, or his evidence had nothing to do with my client, with respect Mr Chairman, but yes, for the first part, I will accept your statement, that you are in a position to draw whatever inference you want. All I am saying is that I am arguing what you have in front of you and weigh that against the probabilities of the facts and then come to a conclusion.
ADV SANDI: I hear you are saying amongst the things you have said, Mr de Kock has got a personal axe to grind with Mr Engelbrecht. I think if I remember correctly, in one of the hearings we heard previously, I heard Mr de Kock saying that Mr Engelbrecht was actually a good man, as a person he was a good man, but he was just unfortunate to be in a bad company, how do you reconcile that?
MR WAGENER: No Mr Chairman, with respect, what was said by de Kock was that they in the Security Branch, they - I am looking for the correct word - it was something like he was abused by them in the Security Branch, in other words they misled him, Mr Chairman, that is my interpretation of what was said by Mr de Kock at the criminal trial and I think that is the passage that you refer to.
Mr Chairman, once again on the probabilities, we are now in July 1990, the Harms Commission is in the process of its hearings, certain members including Mr de Kock has been suspended from official duties in view of certain allegations made. Surely Mr Chairman, this must have been an extremely sensitive period in the history of the Security Branch. Against that backdrop Mr Chairman, the probabilities that the Commander of Mr de Kock, that is Brigadier or General, I think he was a Brigadier then, Brig van Rensburg, that he would command de Kock to go and kill one of his own members and that in the presence of a total outsider, a Detective like Engelbrecht, Mr Chairman, I would submit is totally improbable. Coupled to that, the further improbability that we dealt with at the Chand hearing, that Engelbrecht even volunteered, he, an old man, or much older than the others, not an operative ever in his life, that he volunteered to go along on this mission to Botswana.
Mr Chairman you have read the affidavit of Engelbrecht to that extent, this is absurd. Mr Chairman, also what I found very interesting was the evidence of Mr Pieter Botha. He gave evidence here that at the time, he did not really know where the instructions came from, but later, he heard in the grapevine, I cannot remember the exact Afrikaans words he used, but it was to that effect, the instructions came from van Rensburg. Mr Chairman, if there is any truth in the version of Mr de Kock, regarding Engelbrecht, the grapevine would have said "did you guys hear that an outsider, a Detective, not one of our trusted few, one Engelbrecht, he gave the instructions", surely Mr Chairman, that would have been the position. Mr Chairman, I have seen the affidavit of Gen van Rensburg denying that he gave the instructions, I cannot take that any further, I do not know, my client does not know what happened there, what we do know was that he was the line function commander of de Kock. It could have been him, I don't know. We have heard Mr de Kock testifying on more than one occasion here that there was this spirit of denial within the Security Branch Mr Chairman, I listened carefully to his evidence, within the Security Branch. For purposes of this argument, I am prepared to accept that, that there was this, there could have been this spirit within the Security Branch, once again, my client was not a member of the Security Branch.
Mr Chairman, you also heard Mr de Kock saying that he was involved in many incidents in his career, this all happened very long ago. His memory could fail him on small issues like this, I would argue Mr Chairman that he is making a mistake in putting my client at the scene of the instruction. I do not know what his motives are, but I would request you to make no finding in your end result whether amnesty is granted to Mr de Kock or not, that my client was involved in these instructions regarding the killing of Ngqulunga. Regarding the argument Mr Chairman, of the B-team, that is Mr Booyens, on behalf of Baker, Bellingan and Botha, I have no comment.
Regarding Mr Lamey, Mr Chairman, who represents Mr Nortje, Mr Nortje in cross-examination conceded he does not know a thing, he is making assumptions. As far as he can remember, this is what de Kock had said, according to my notes, he wasn't sure at all. Mr Chairman, I cannot see any corroboration in that so I will argue that you may disregard that part of Nortje's evidence. Unless there are any questions, Mr Chairman, I will conclude with this.
CHAIRPERSON: Thank you.
MR VAN DER WALT IN ARGUMENT: Thank you Mr Chairman, van der Walt for the record. Mr Chairman, despite Ms Ngqulunga's testimony yesterday that she is not currently in a position to forgive and forget, it has been my instructions and it still is, that in the spirit of reconciliation, if the applicants meet the requirements for amnesty, amnesty should be granted and therefore the family will abide by the decision of this Committee.
On that basis, my instructions were and still is to oppose the application on a two-fold basis. Firstly on the basis that there was not full disclosure of all relevant facts and secondly, on the basis that there is a lack of proportionality between the offence committed, that is the killing of Mr Ngqulunga and the political objective pursued.
On the first leg of the opposition then, namely that full disclosure has not been made, it should or the applicants should maybe be considered separately or in groups, Mr de Kock on the first hand, testified and it is his case that the reason for the incident was the fact that there was a suspicion that Mr Ngqulunga might have changed his allegiance. He is not at all supported by Mr Radebe on this point, and I would submit that Mr Radebe made no disclosure whatsoever. As far as Mr de Kock's disclosure is concerned, I submit that it is lacking in certain important aspects, in particular if regard is had to the evidence of Botha, in particular Bellingan, who made mention of certain real aspects and fears, which was the concern. I would submit that maybe the only applicant that comes close to a full disclosure, is Mr Nortje, who testified that there was reason for certain of the applicants to be involved in the matter, sort of to get a grip on them and to have a reason to keep them quiet.
On the basis, on the leg of a lack of proportionality, my submission is that it is not only or really the method used to eliminate Mr Ngqulunga that is relevant here, but was it at all necessary to eliminate him? My submission is no. In this regard we must once again remember that Mr de Kock testified there was a suspicion of a changing of allegiance, not foundation for that in his evidence.
CHAIRPERSON: Didn't he make it clear it was not a suspicion of his, that this was something he got from Van Rensburg, it was van Rensburg's suspicion and van Rensburg had accordingly come to the decision that the deceased should be eliminated?
MR VAN DER WALT: On that basis, he acted on instructions?
CHAIRPERSON: Yes.
MR VAN DER WALT: And therefore fall within the ambit of Section 20(2)(f), Mr Chairman? Mr Chairman, my submission would be that to be able to rely on the provisions of 20(2)(f), there must be reasonable grounds, there must have been some effort on the part of either de Kock or the other persons who acted on the instruction, to verify ...
CHAIRPERSON: Are you suggesting that when footsoldiers are given orders by people they know to be their Commanding Officer, that they should go and start making enquiries about it? Is that what you are saying, that was an onus on them otherwise they cannot get amnesty? Well, I am afraid there have been a number of decisions of this Committee, to the contrary.
MR VAN DER WALT: Mr Chairman, yes, my submission would be at least there is some duty to ascertain if it is a legal instruction.
CHAIRPERSON: If it comes from your Commanding Officer, it is a legal instruction, isn't it? It is not a question of a member of the public coming to you and telling you something and you say, "all right, I will accept it, I will do something." Here it comes down the chain of command, I am talking now of everybody apart from Mr de Kock, we have heard that he was a strict, respected Commander at Vlakplaas, he gave instructions, they were carried out. Do you say the people he gave instructions to should have said "stop, wait a bit, we are not prepared to do it, we want to go and make inquiries"?
MR VAN DER WALT: Mr Chairman, if it was not necessary for them to make inquiries, there is at least a certain suspicion regarding the way in which they carried out the instructions, especially afterwards having drinks, going to dinner, it appears to an ordinary member of the public, that this was done in cold-blood, and not as is purported.
CHAIRPERSON: Certainly all Vlakplaas matters were apparently done in cold-blood, they were the Operational Unit, they were called in, they killed people all over our country and across our borders.
MR VAN DER WALT: Yes Mr Chairman, I have not had the opportunity to have been in previous Vlakplaas hearings, but I will accept that. As I have stated before, if it is the Committee's finding that amnesty should be granted, it should be granted, I am acting on instructions of my clients and I have tried to convey the basis of the opposition of the application. There is maybe one aspect that is outstanding and that is the aspect of the clothes that the deceased was wearing, Mr Chairman was asking my learned friend, Mr Hattingh about. I would just like to remind the Committee that I rectified the statement that I made earlier yesterday. I first said that my instructions are that the deceased had on those clothes when he was identified and it was not damaged, I rectified it later on and said my instructions is that she was handed the clothes afterwards, but I don't think much turns on that.
CHAIRPERSON: If you look at the post-mortem report, there must have been a great deal of damage to the clothing?
MR VAN DER WALT: I won't take that point any further Mr Chairman. Mr Chairman, as I have indicated, the family is prepared to abide by the decision of the Committee and unless there is anything further, those are my submissions.
MR SIBANYONI: Mr van der Walt, your client's own response from questions by Mr Sandi, when she was asked what Mr Ngqulunga used to say about de Kock, your client said de Kock used to ill-treat askaris, as a result, Mr Ngqulunga asked for a transfer from Vlakplaas to the Head Office, a thing you know, which may cause some concern, but unfortunately we did not put it to Mr de Kock. Do you have any comment about your client's allegation that she was told by her husband that he had to ask for a transfer from Vlakplaas to Head Office because of ill-treatment?
MR VAN DER WALT: Mr Chairman, only on the basis that well, if that be the case that he was transferred and also asked for a transfer, he was out of, Vlakplaas was out of harm's way, he was no threat any more to Vlakplaas, so much more the reason for not having had to have killed him, to come back to the argument of a lack of proportionality between the offence committed and the object aimed to achieve.
ADV STEENKAMP: Nothing to add, Mr Chairman.
NO ARGUMENT BY ADV STEENKAMP
CHAIRPERSON: We thank you all gentlemen, we will take time to consider our decision. As I indicated I think yesterday, if you have any brainwaves before we give our decision, you can let us have them in writing, provided you also make them available to your colleagues. I don't know how many of you I am going to see next week in another city. Thank you all. That concludes the hearing at this centre, until we commence again on the 27th is it, we will have further hearings here.
HEARING ADJOURNS
