CHAIRPERSON: I would like to say that I am sorry to hear what happened to the two of you or to your property last night.
MR STEENKAMP: ...(indistinct - microphone not on).
CHAIRPERSON: Oh not your private property?
MR STEENKAMP: ...(indistinct - microphone not on).
CHAIRPERSON: I think it's one of the things that we must beware of in the present time, that nothing is safe.
Shall we continue.
FINIAS MOSHUALIBA: (s.u.o.)
MR VAN HEERDEN: Thank you, Mr Chairman. Mr Chairman, I had a lengthy consultation with the family of Thabo Mohale yesterday. Certain information came to light which corroborated parts of the evidence of this witness, Moshualiba. This is information relating to the leadership role Thabo Mohale had in the organisation known as Sansco For this reason I'm instructed not to cross-examine this witness.
NO CROSS-EXAMINATION BY MR VAN HEERDEN
CHAIRPERSON: As I understand it you only represent that family.
MR VAN HEERDEN: Yes, Mr Chairman.
CHAIRPERSON: Mr Steenkamp.
MR STEENKAMP: I have no questions thank you Mr Chairman.
NO CROSS-EXAMINATION BY MR STEENKAMP
MR SIBANYONI: Thank you Mr Chairperson. Mr Moshualiba, you were a police officer or you were employed as a police officer, am I correct?
MR MOSHUALIBA: That is correct, Chairperson.
MR SIBANYONI: And your income, how was it structured, were you earning a fixed salary or were you paid on a commission basis, whenever you've given some intelligence or some report, then you would get paid for that?
MR MOSHUALIBA: I was receiving a normal income like any other policeman.
MR SIBANYONI: And then for how long had you known Mohale before this incident took place?
MR MOSHUALIBA: I'm not sure about the duration, but I think it was somewhere at the end of 1988, towards the beginning of 1989.
CHAIRPERSON: Was that when you met him?
MR MOSHUALIBA: That is correct, Chairperson.
MR SIBANYONI: So you knew him for a short while?
MR MOSHUALIBA: I'd say so, Chairperson, that I knew him for a short period.
MR SIBANYONI: And then I heard you saying in your evidence that you first registered at a college and then thereafter at Vista University at Sebokeng.
MR MOSHUALIBA: That is correct Chairperson.
MR SIBANYONI: Did you have matric before?
MR MOSHUALIBA: That is correct, I had matric when I went to college.
MR SIBANYONI: These other two people who had accompanied Mohale, I understood you to say you were not sure, you didn't know them, am I correct?
MR MOSHUALIBA: That is correct, Chairperson, I did not know them.
MR SIBANYONI: You only assumed they were also members of SANSCO, you did not have any direct knowledge about that?
MR MOSHUALIBA: That is correct, Chairperson, because the information I received I only received it from Mr Mohale. He told me that those were the people who would accompany him to Swaziland.
CHAIRPERSON: Is that all he told you about them?
MR MOSHUALIBA: Yes that is all about the information I received about these two people, that he was going to be accompanied by other people to Swaziland.
MR SIBANYONI: I asked this question to Mr Botha, maybe I should also ask you. It would sound as if these people were set up, in other words they were enticed to go to Swaziland. What would you say about that?
MR MOSHUALIBA: In terms of my observation, I would not say that they were set up or they were tricked to go to Swaziland. I don't believe that.
MR SIBANYONI: Did they meet the ANC people in Swaziland?
MR MOSHUALIBA: According to the information I received from Mohale when he phoned me initially, he said that he met some people but I did not follow that up, so I would not say that he met people from Swaziland, or not.
CHAIRPERSON: You can't say if Mohale met people in Swaziland, is that what you are saying?
MR MOSHUALIBA: I was answering the question as to whether he met ANC people in Swaziland or not.
CHAIRPERSON: The question as I understood it was whether the other two people met ANC people in Swaziland, wasn't it? Did all of them meet? You don't know, was that the answer?
MR MOSHUALIBA: My answer is that I would not be able to say as to whether they met people in Swaziland or not.
ADV SANDI: Yes, but before they, sorry, before they left or at the time they left South Africa for Swaziland, your understanding was that they were going to be meeting the people you had arranged that they meet in Swaziland, not so?
MR MOSHUALIBA: Yes, that's the impression I gave them because of the instructions from Willem Coetzee, that I should tell them that they would meet people, or a person in Swaziland.
ADV SANDI: Yes, but before they left, did they say to you other than these people you had arranged that they meet, they were going to meet any other person, did they say that to you?
MR MOSHUALIBA: They did not state that as to whether they would meet other people except those people we've arranged.
ADV SANDI: As I understand all this, Mohale expressed a desire to you that himself and his colleagues go to Swaziland to receive military training, not so?
MR MOSHUALIBA: That is correct, Chairperson.
ADV SANDI: Then did he say he had a problem in that he did not know how to go about doing that or who to contact in Swaziland?
MR MOSHUALIBA: Yes, that is correct, he explained to me that they were going to have problems to meet ANC people in Swaziland.
ADV SANDI: In other words they did not know who to meet in Swaziland?
MR MOSHUALIBA: I would not say that he did not know, but he told me that he would not be able to meet ANC people in Swaziland.
ADV SANDI: Then you said to him: "I can solve your problem for you and arrange that you meet people in Swaziland", not so?
MR MOSHUALIBA: That is correct, Chairperson, I said that.
ADV SANDI: Thank you. Thank you.
MR SIBANYONI: Therefore you engineered, you arranged this trip to Swaziland, is that so?
MR MOSHUALIBA: Yes, that is correct Chairperson, I helped him to arrange to meet those people in Swaziland.
QUESTION: And the people you arranged that he should meet in Swaziland, are they two askaris at Manzini Post Office, is that correct?
MR MOSHUALIBA: I would not know as to whether they were askaris or not because I did not know their arrangements as to who they are going to meet in Swaziland.
CHAIRPERSON: Was that arranged by Mr Coetzee, is that why you didn't know?
MR MOSHUALIBA: That is correct, Chairperson.
MR SIBANYONI: No further questions, Chairperson.
ADV SANDI: Now when he phoned you from Swaziland, as I understand it, he expressed an interest to meet the people you had arranged, not so?
MR MOSHUALIBA: When he phoned me he said they arrived late and they were not able to find those people to the place which has been arranged. Then I requested him to return back to the arranged place.
ADV SANDI: Yes. What I'm trying to say is that, I want to ensure that I follow you correctly. In spite of the fact that he had met these other people you did not know about, he was still interested to meet the people with whom you had arranged that they meet in Swaziland?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Well had he met anyone when he phoned you, had he met anyone at that stage?
MR MOSHUALIBA: That is correct, Chairperson, he told me that he met other people before, then they arranged that they would meet again on Sunday.
CHAIRPERSON: And did you - were you interested in finding out who those people were?
MR MOSHUALIBA: I did not want to ask him, because we agreed that we should not have a long discussion on the phone.
CHAIRPERSON: But these may have been important ANC people whom your Security Police would want to know about.
MR MOSHUALIBA: That could happen, I agree with you Chairperson. I agree with you.
ADV SANDI: Can you try and remember everything he told you about these other people he had met in Swaziland?
MR MOSHUALIBA: I remember Chairperson he did not say much about those people, but he told me that he met those people on Saturday, then they agreed that they would meet on Sunday, then that is all we discussed about that issue.
ADV SANDI: What were they going to be meeting about, on Sunday?
MR MOSHUALIBA: I did not know, Chairperson, as I've already said that I did not ask any questions in that regard.
ADV SANDI: Before you met Mr Mohale, had his name been mentioned to you by anyone?
MR MOSHUALIBA: I would not remember, Chairperson, because I knew many people. It may happen that whilst we had discussions together with other students, his name surfaced, but I don't remember.
ADV SANDI: Had any one of your colleagues in the Security Police ever mentioned the name of Mohale and his activities?
MR MOSHUALIBA: I don't remember having a discussion with any person about Mohale.
ADV SANDI: Were you aware of any involvement by Mohale in MK underground activities or anything of that sort?
MR MOSHUALIBA: I was not aware as to whether he had underground activities or associations with MK except his desire to have a contact with MK or ANC in Swaziland.
ADV SANDI: Yes, but he had a problem because he didn't know who to contact in the ANC in Swaziland. Correct?
MR MOSHUALIBA: I agree with you Chairperson.
ADV SANDI: These SANSCO meetings, did Mohale ever speak at these meetings?
MR MOSHUALIBA: That is Correct, Chairperson.
ADV SANDI: I take it from your answer that you also attended those meetings?
MR MOSHUALIBA: That is correct, Chairperson.
ADV SANDI: What did he say at these meetings which would have been of interest to you as a police agent?
MR MOSHUALIBA: Except about enlarging the movement and attracting new members and that universities meet, should combine under the SANSCO umbrella. In those meetings there was nothing which was of secret concern.
ADV SANDI: Would I be correct to understand that to mean that he did not say anything that could have exposed him to a criminal prosecution in terms of the security laws of the country. MR MOSHUALIBA: In open meetings Chairperson I would not say that issues like that of security concern were raised by him.
ADV SANDI: By the way, how did you classify him, as a student, or activist?
MR MOSHUALIBA: People who occupied a leadership role among student activities, those people used to attend meetings regularly, those are the people we used to observe.
ADV SANDI: I'm not sure if I follow you. Would you have classified him as radical, or militant, or a student? How would you have classified him, as an activist?
MR MOSHUALIBA: In terms of my observation, I would classify him as ...(no sound)
INTERPRETER: ...repeat your answer Sir.
CHAIRPERSON: He wants you to repeat your answer.
MR MOSHUALIBA: I said, in terms of my observation, I would classify him the way you have explained, Chairperson.
ADV SANDI: What made you come to that conclusion about him?
MR MOSHUALIBA: I say it because of his involvement in the positions that the student organisations should be mobilised and then again in terms of discussions I had with him.
ADV SANDI: Your reports to Mr Coetzee about Mohale, were they in writing or were these just all round reports?
MR MOSHUALIBA: All my reports which I tendered to Mr Coetzee were written.
ADV SANDI: Can you try and give us a picture in mind of what would be contained in those reports?
MR MOSHUALIBA: Most of my reports would contain the discussions I had with him and then what he usually said which he desired to happen within the movement.
CHAIRPERSON: The movement is SANSCO, is it?
MR MOSHUALIBA: That is correct.
ADV SANDI: In those reports would you, in addition to the facts you had reported on, occurrences and incidents you were observing amongst the SANSCO activists, did you, in addition to that, make comments and recommendations?
MR MOSHUALIBA: No, Chairperson, I did not make any recommendations, I would just state the facts as they were.
ADV SANDI: This man you got to know quite well?
MR MOSHUALIBA: In terms of our meetings, I would say I knew him, I was satisfied that I knew him.
ADV SANDI: I understood you to say, that was yesterday in your evidence in chief, you had never been to his place where he used to stay, you had never visited him?
MR MOSHUALIBA: That is correct, Chairperson, I said that.
ADV SANDI: Had he ever been to your place of abode?
MR MOSHUALIBA: No, Chairperson, he did not visit my place.
ADV SANDI: Did you socialise with him socially, attending parties, or anything of that sort together?
MR MOSHUALIBA: No, Chairperson, except that we used to meet in town and go for lunch or dinner at a certain restaurant, or restaurants. Other than that, I did not go to parties with him.
ADV SANDI: In your dealings with him, did he ever ask you to render any assistance to him in furtherance of SANSCO objectives?
MR MOSHUALIBA: Chairperson, that is correct, because there was that objectives that students should help each other at various universities, mainly and especially at Vista University, because it was just started to exist.
ADV SANDI: What assistance did you render?
MR MOSHUALIBA: It was about discussions and to advise each other as to whether, what methods should be used, that these two universities, how can they have contact and co-operate in sports, and about catering at these two universities.
ADV SANDI: At those SANSCO meetings, did you also stand up and speak there?
MR MOSHUALIBA: That is correct, Chairperson, I was able to voice my opinion.
ADV SANDI: On what sort of matters would you have voiced your opinions?
MR MOSHUALIBA: About the contribution which we were supposed to make, about how can sports be used as a front to consolidate that unity of the students among various tertiary institutions.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: Now I've got a few questions. Do I understand that you had known this man for a couple of months as an active member of SANSCO?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: And all the discussions you had with him were how students could co-operate with one another?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: And the other aspect was that he told you that he wanted to go to Swaziland to meet ANC people, but that he didn't know anybody?
MR MOSHUALIBA: That is correct, Chairperson. I would not say he did not know a person, but he just wanted, he told me that he had a problem how he would be able to meet ANC people in Swaziland.
CHAIRPERSON: Yes. So you said you could fix it up, you could arrange for him to meet people?
MR MOSHUALIBA: That is correct, Chairperson, I told him that after I had a discussion with Mr Coetzee about that issue.
CHAIRPERSON: So it would appear that he had no direct contacts in Swaziland, you were going to provide them.
MR MOSHUALIBA: That is correct, Chairperson.
ADV SANDI: Did any one of your superiors, say for example Mr Coetzee, give you any task to try and win the confidence of this man?
MR MOSHUALIBA: I believed that because of the work I used to do, namely it was my task that those people who are above board in politics, I should try to win their confidence. So that was part of my work, to win the confidence of those people who are in the leadership positions.
CHAIRPERSON: As I understand it, your work was to associate with students who were active in student politics and find out what you could about them?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: This was student politics, co-operating with one another at different colleges and universities?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: And you didn't know the other two people at all, who you saw, who went to Swaziland with him?
MR MOSHUALIBA: That is correct, Chairperson, I saw them for the first time at that time.
CHAIRPERSON: And you knew nothing about them?
MR MOSHUALIBA: That is correct, Chairperson, I did not know anything about them.
ADV SANDI: Yes, but did Mr Coetzee give you any reaction as to the reports you were giving him about Mohale? Did he give you any assignment to say, "Look, the next stage now should be x, y, z, do this and that", did that sort of thing ever happen?
MR MOSHUALIBA: Yes, during our discussions, he would encourage that I should continue to gather more information which Mohale would be able to provide about their activities.
CHAIRPERSON: Now going back to what I was asking you about, you had never seen these people at any of the meetings you attended, the other two, is that correct?
MR MOSHUALIBA: That is correct.
CHAIRPERSON: And when they left on that morning, did you tell Mr Coetzee that Mohale had gone to Swaziland with two people you didn't know, a man and a woman?
MR MOSHUALIBA: I remember as to whether I told him that I did not know those people, but I told him that he went with two people.
CHAIRPERSON: But surely he would want to know who were those people?
MR MOSHUALIBA: I agree with you, Chairperson.
CHAIRPERSON: And if he'd asked you, you'd have said: "I don't know."
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Because one takes it, I assume he would have made inquiries.
MR MOSHUALIBA: I agree with you Chairperson.
CHAIRPERSON: And this car that you provided, did you say yesterday it was registered in your name?
MR MOSHUALIBA: I said so, Chairperson.
CHAIRPERSON: That was, you took out, you licensed the car, did you? Is that what you mean? Or it was licensed in your name, when you say registered?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: So if anybody had found the car and looked at the number plates and checked up, they would have been told you were the owner?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: And he had told you before they left on that Saturday morning that he had problems who they would meet, so you had made arrangements through Mr Coetzee for them to meet somebody there?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Now you told us you knew that the man was from Bloemfontein and the woman was from Kangwane, is that correct?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: How did you know that, if you didn't know the people?
MR MOSHUALIBA: Mohale explained that to me, Chairperson.
CHAIRPERSON: So they weren't even from his district?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: And you don't know the connections between them and Mohale?
MR MOSHUALIBA: I did not discuss that with Mr Mohale, Chairperson.
CHAIRPERSON: He didn't tell you?
MR MOSHUALIBA: He did not tell me, he only told me that they were other members of SANSCO who came from different areas.
CHAIRPERSON: And when he phoned you, he told you that he had met some people who he was going to see again the next day, but you didn't ask him who they were or what it was about?
MR MOSHUALIBA: No, Chairperson, I did not ask him.
CHAIRPERSON: What made you think that night that they might be directed to an ambush and be eliminated?
MR MOSHUALIBA: Will you please repeat the question, Sir?
CHAIRPERSON: What made you think on that Saturday night, that these people might be driven into an ambush, directed to an ambush and that they might be eliminated?
MR MOSHUALIBA: It is when a certain phone call was received and then a certain white person was speaking on the phone, then I learned that something wrong may happen.
CHAIRPERSON: But you didn't know what the conversation was about, you told us. You weren't concerned about it.
MR MOSHUALIBA: It's not that I was not concerned about the discussion, but what has been said thereafter in the room in the safe-house, I learned that those were the people who were supposed to meet Mr Louis Mohale and company.
CHAIRPERSON: At the post office?
MR MOSHUALIBA: Yes, that is correct, Chairperson, as we had arranged.
CHAIRPERSON: Well, were they told that you had just spoken to Mohale and told him to go back to the post office?
MR MOSHUALIBA: I thought maybe Mr Mohale, Mr Coetzee told him that because they had a discussion with him again.
CHAIRPERSON: Thank you.
ADV SANDI: Thank you, Mr Chairman. Is it the position here that when you mentioned the name of Mohale to Mr Coetzee for the first time, Mr Coetzee had not known anything about Mohale? In other words, it was a new name to him?
MR MOSHUALIBA: Chairperson, I would not testify to that regard, as to whether he knew that for the first time when I reported to him for the first time about Mr Mohale. I did not know as to whether he knew him before or not.
ADV SANDI: Yes, I'm asking this question because of what you seem to say at page 196, 4th paragraph where you say, I think I'll have to read this word for word in Afrikaans
"In this regard I wish to point out that I was one of two agents, myself and Joseph Peter, who were tasked by Lieut Col Coetzee to infiltrate Louis Mohale's group, under the order of Brig A Oosthuizen in order to monitor their MK underground activities on the tertiary level."
MR MOSHUALIBA: I agree with you, Chairperson.
CHAIRPERSON: Did that happen?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Well that is not what you have told us in your evidence here. You have not told us that you were directed by Col Coetzee, in connection with Brig Oosthuizen, to infiltrate Louis Mohale's group. You have told us that you were supposed to infiltrate student organisations to find out what they were doing.
MR MOSHUALIBA: Maybe the problem is that I don't understand the questions. When I started to infiltrate student organisations, that is how I was able to infiltrate Mohale and his group, that's how I knew him.
CHAIRPERSON: A moment ago you told us, as I understand, that you had not discussed Mohale with anyone before.
MR VISSER: Mr Chairman, I don't want to interrupt unnecessarily, but the way I understood the question, to which he made the reply, was that Coetzee did not hear about Mohale from him. There may be a confusion there and I may be wrong, but that's how I understood the question, Mr Chairman and the answer.
CHAIRPERSON: He said he didn't remember any discussions about Mohale. "I don't remember if Mohale's name was mentioned before, I don't remember any discussions about Mohale." Do you remember saying that?
MR MOSHUALIBA: I remember saying that Chairperson, but ...(intervention)
CHAIRPERSON: Now you're saying Coetzee told you to infiltrate Mohale, mentioning his name?
MR MOSHUALIBA: May I please try to clarify that point, Chairperson?
CHAIRPERSON: Do so.
MR MOSHUALIBA: My understanding is that when this statement was written, it's then that, after I've explained to Mr Coetzee that there are these kinds of people, then from there he instructed me to do what is written in the statement.
CHAIRPERSON: So what you meant to say was it was after you had reported to Coetzee that you had met these sort of people, he said: "Infiltrate them, keep in contact with them".
MR MOSHUALIBA: That is what I wanted to explain, Chairperson.
CHAIRPERSON: So he didn't direct you to go and do it?
MR MOSHUALIBA: No, Chairperson, he gave me instructions after I've reported to him about this group, all about Mohale.
ADV SANDI: Yes, but at that stage, they had no contact with MK, you had to assist them to make the contact.
MR MOSHUALIBA: I agree, Chairperson, because I did not know that they had any contact with MK at that particular point.
ADV SANDI: Yes so that means you could never have said to Mr Coetzee, these people were an MK cell? You could never have said that at that stage.
MR MOSHUALIBA: Initially I did not say that. It happened within a process, after I knew that they had an interest to have a contact with MK.
CHAIRPERSON: But they had not made contact with MK, had they? They said they wanted to go to Swaziland to do it, they hadn't done so, they said they didn't know how to do it.
MR MOSHUALIBA: Chairperson, that is how it happened.
CHAIRPERSON: Re-examination?
MR VISSER: May it please you, Mr Chairman.
RE-EXAMINATION BY MR VISSER: Mr Moshualiba, as I understand your evidence, your instructions were to infiltrate students' organisations to establish and report on matters which would be of security interest, is that correct?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Mr Visser, you led him a great deal in his evidence in chief, you're doing it again now. He didn't say anything about a security interest.
MR VISSER: Mr Chairman, this is directly flowing from questions put by members of the Committee to him, Mr Chairman and with respect, I'm entitled to clarify.
CHAIRPERSON: You are re-examining your own witness now.
MR VISSER: Yes.
CHAIRPERSON: Bear that in mind.
MR VISSER: I'm not leading him in chief, Mr Chairman, with great respect.
CHAIRPERSON: You say you didn't lead him in chief? Read a copy of the evidence, Mr Visser.
MR VISSER: Mr Chairman, we're at cross-purposes here. I'm just dealing with matters which have been raised by the Committee.
CHAIRPERSON: Put to him what he has said, don't add bits.
MR VISSER: At the time you told this Committee that there was unrest and there was violence and that the students participated in that, is that correct?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: During your reporting over a period of time, as you've told us, it became plain to you that Mr Mohale wanted to put his plan into action to go to Swaziland, is that correct?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: You've also told us that he expressed concern that he did not know how to contact ANC people in Swaziland?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: From what you knew of people who left the country, the Republic of South Africa, to go abroad, to receive military training, was it your opinion that they would not have been able to contact people of MK or ANC in Swaziland, or was it your opinion that when they did go to Swaziland, the chances were that they would in fact be able to contact such people?
MR MOSHUALIBA: Chairperson, I had a belief that even if they would go on their own, they would have that opportunity to meet such people in Swaziland.
MR VISSER: There would at least have been a very real risk that if they had gone, that they would have met people of the ANC in Swaziland?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: And if they did so and they explained to the people of the ANC in Swaziland that they intended establishing an MK cell within SANSCO, do you think, what did you think would have happened?
MR MOSHUALIBA: Such a thing could have happened, they could have been trained fully, then from there establish an MK cell.
MR VISSER: To put it bluntly, there would not have been a resistance by the ANC in Swaziland if people presented themselves to be willing to fight in the struggle, to train them, would there?
MR MOSHUALIBA: That is correct Chairperson, they could have been allowed to and accepted.
CHAIRPERSON: They were just going for the weekend, weren't they? They borrowed your car for the weekend, isn't that the position?
MR MOSHUALIBA: That is correct, they took my car.
CHAIRPERSON: Yes, they were going to come back after the weekend, they were just going to Swaziland for the weekend, isn't that the position?
MR MOSHUALIBA: I would not say they were going for a weekend, they went for the purpose which I've explained earlier.
CHAIRPERSON: Of meeting people?
MR MOSHUALIBA: It was their intention to meet ANC people.
CHAIRPERSON: And they were still attending university and were active in SANSCO at their universities?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: But you also told us in your evidence in chief that the purpose was not only to meet people, it was also to receive a crash-course in military training and to try to obtain weapons, wasn't it?
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: And as far as you were concerned, there was a very real chance that they would be able to succeed in doing so?
MR MOSHUALIBA: That is correct, Chairperson, it was possible for them to achieve those things.
MR VISSER: If you have to speculate, why do you think were two people from different regions taken by Louis Mohale with him to Swaziland, if you were to speculate about that?
MR MOSHUALIBA: I would say that it is to try that those ideas would be able to spread within the country, in various institutions within various provinces, so that when these people come back, they'll be able to carry out the objectives of SANSCO at various national institutions.
MR VISSER: And the idea...
ADV SANDI: Sorry, Mr Visser, before you come in just on that, do you mind if I can just come in? Whilst you're busy speculating Mr Moshualiba, is it not also possible that this woman may have been Mohale's girlfriend, whom he was just taking out for the weekend? Isn't that also one of the possibilities?
MR MOSHUALIBA: I would not dispute that, because I did not have an established proof about their relationship, it may be so.
CHAIRPERSON: Did you say anything in your evidence in chief about them wanting to do a crash course and to obtain weapons?
MR MOSHUALIBA: That is correct, Chairperson, I said that yesterday.
CHAIRPERSON: Did you? We'll check on that.
MR MOSHUALIBA: That is correct, Chairperson.
MR VISSER: That was the evidence, yes, Mr Chairman.
CHAIRPERSON: Who did it come from Mr Visser?
MR VISSER: It was led in his evidence in chief, Mr Chairman.
CHAIRPERSON: Yes, by you. He didn't say it, did he? But we can check that.
MR VISSER: Well, Mr Chairman, we try to assist in speeding up the process, Mr Chairman and we have been led to believe that we can lead witnesses up to a certain point ...(intervention)
CHAIRPERSON: Where they have made statements, yes. Where they've made affidavits, but carry on Mr Visser, let's get finished with this.
MR VISSER: Yes. You say that you met Mr Mohale in 1988 and you knew him for a short while, but you were satisfied, as I understand you, that you got to know him well, over the period of time, is that what you're saying?
MR MOSHUALIBA: That is correct, I was satisfied.
MR VISSER: And what did you think would happen if Mr Mohale and members of his group were to be allowed to put their plans into action? Go to Swaziland, meet ANC people, perhaps receive military training and perhaps bringing weapons back into the Republic? How would that have affected the situation in the country at the time?
MR MOSHUALIBA: There would be a spread of activities of Umkhonto weSizwe within the country. Then police would have more problems than they had at that particular time, then many people would have been injured.
MR VISSER: Would it, in your opinion, have encouraged and helped along one of the pillars of the struggle, the establishment of underground structures?
MR MOSHUALIBA: Yes, they were intending to form an underground structure of MK.
MR VISSER: The intention with suggesting to Mr Mohale that you would arrange for someone of MK to meet with them, what was the purpose of that exercise?
MR MOSHUALIBA: According to my understanding of the instructions I received from Mr Willem Coetzee, the intention was that, I would say genuine members of the ANC, that they should be directed to meet disguised ANC members who were informers of the South African who were established in Swaziland.
MR VISSER: Yes and these people of the South African police, would they have given them military training and provided them with weapons?
MR MOSHUALIBA: I hoped that they would do as they were instructed which would not help in any way the objectives of Mohale and his group.
MR VISSER: Yes. So that the whole purpose was to retain some control in order to avoid them meeting the people they wanted to go and meet?
MR MOSHUALIBA: I agree with you, Chairperson, it's that they had to be controlled and to see as to whether, what they were doing.
MR VISSER: Was it your purpose at any time, through these arrangements, or did you understand that to be an enticement of this group to go to Swaziland?
MR MOSHUALIBA: Not at all, Chairperson, that was not my understanding, because I did not encourage or entice those people to go to Swaziland, but it happened from their side.
MR VISSER: Yes, they decided they were now going?
MR MOSHUALIBA: That is correct, Chairperson.
CHAIRPERSON: Did you ever offer to go with them to Swaziland to introduce them to these people?
MR MOSHUALIBA: No, Chairperson.
CHAIRPERSON: That would have been the safest way of keeping control of them, wouldn't it?
MR MOSHUALIBA: I agree with you, Chairperson.
MR VISSER: But that wasn't your call, that was Mr Coetzee's call, wasn't it?
MR MOSHUALIBA: As I've already said, Chairperson, that I followed instructions from my seniors.
MR VISSER: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR VISSER
ADV SANDI: Just one last question, Mr Chairman. Mr Moshualiba, if those people, on their return from Swaziland had been arrested for undergoing military training outside the country and joining a banned organisation, what would have been your attitude to appearing in court as a state witness
MR MOSHUALIBA: If I did not, if I had a choice of not following the instructions, it would be a great risk, not only for my life but to the lives of people whom I was working with, within - those people who were working in covert operations.
ADV SANDI: Did you at any stage before, appear in court as a state witness in relation to the security related matters you were investigating and monitoring?
MR MOSHUALIBA: Yes, something like that happened, Chairperson.
ADV SANDI: How many times did that happen?
MR MOSHUALIBA: Once, Chairperson.
ADV SANDI: Did you suffer any harm as a result of your having appeared in court as a state witness in that matter you're talking about?
MR MOSHUALIBA: Yes, there were threats, then from there I moved from that particular place to another place.
ADV SANDI: Did you have to appear as a Mister X in court?
MR MOSHUALIBA: That is correct, Chairperson.
ADV SANDI: Did you also have to wear a balaclava?
MR MOSHUALIBA: No, Chairperson, I did not wear a balaclava in that particular instance.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: Thank you. Is there any further evidence to be led?
MR VISSER: Mr Chairman, going from and as a result of some questions put by the Panel this morning, may I ask for a short adjournment in order to discuss with my attorney whether further evidence should now be presented to you? I need about 5 to 10 minutes, if would please you, Mr Chairman.
CHAIRPERSON: Very well.
COMMITTEE ADJOURNS
ON RESUMPTION
MR VISSER: Mr Chairman, thank you for the indulgence. My attorney and myself have discussed the situation, which has arisen as a result of questions being put by the Committee this morning. It's clear to us Mr Chairman, that there may be a misunderstanding on our part, or perhaps on the part, with respect, of the Committee as to the evidence that had been given. At this point in time, Mr Chairman, we find ourselves unable to address the issues without having a record before us, to know exactly what the evidence was. Mr Chairman, in the light of what has transpired, we will not lead any further evidence at this time, Mr Chairman, but we will request you to allow us to request a record and to address the issues that have been muted this morning by members of the Committee, point for point, on the record and to present argument to you either in writing later, Chairperson, or orally as you might decide to instruct, but we will not be able, Mr Chairman, in view of what has transpired, to sensibly argue, because our notes are too cryptic for that, Mr Chairman, and it may be that we are wrong, we believe, with respect, that the Committee is incorrect in it's assumption of what the evidence was or the lack of the evidence was and that is our position at the moment, Mr Chairman.
CHAIRPERSON: Mr Visser, we don't want to delay the whole of this hearing, proceedings. Subject to what may be said by anybody, it is our impression that the evidence of the last applicant, if it is accepted, would only affect the application of Mr Coetzee. There is no suggestion from that evidence that any of the other applicants were aware of the precise nature of the report made, or anything of that nature, they would have relied on what they were told, so it would seem to me, subject to what anyone may have to say, that you can reserve you position as regards Mr Coetzee and put up written heads later when you've had a chance of seeing the evidence, but as for the rest, we should proceed on the basis of the other evidence that we heard, that decisions were taken at a certain level and went down from there on the basis of the information they say they were supplied with.
MR VISSER: We're in agreement with that Mr Chairman, except that it may also affect the application of Mr Moshualiba.
CHAIRPERSON: Oh yes. There's nothing to suggest that any of the others were aware of this, it's not been - no suggestion that they attended meetings or discussed it, or anything of that nature, so I think, if you agree, we can dispose of the argument in respect of the rest of them.
MR VISSER: We're in agreement with that Mr Chairman.
MR HATTINGH IN ARGUMENT:
Thank you Mr Chairman. My learned friend, Mr Booyens and I had a discussion on this topic, Mr Chairman, and we were going to request you to allow us to address you because we, with respect, agree with you that the evidence and the problem which arose this morning, doesn't affect our clients.
We submit that as far as Mr de Kock is concerned, Mr Chairman, a very clear case has been made out, he's complied with the provisions of the Act. He was a member of the Security Forces who received instructions, which he had to carry out. In addition he was given a reason as to why it was necessary for these people to be eliminated.
The information that he was given came from the head of the Intelligence Section of the South African Police, Gen Erasmus, Mr Chairman and there's no reason whatsoever why he should not have accepted the correctness and the reliability of such information. He testified that he did so. We submit that he was perfectly entitled to accept that the evidence was correct and reliable and he formed his own opinion that it was in the interests of the police and the government of the day that these people should be eliminated and therefore he decided to carry out his instructions, which he did, Mr Chairman.
CHAIRPERSON: This isn't perhaps one of the most important points, with respect to him and the other persons engaged, the visitors who came to see them off on the morning?
MR HATTINGH: Indeed Mr Chairman, he's a direct Commander. Brig Schoon and then Gen Erasmus came to the farm and discussed the matter with him, which confirmed that the instructions emanated from them, Mr Chairman. We submit that there's no doubt whatsoever that Mr de Kock qualifies for amnesty in respect of this particular incident and we will submit to you, as you've requested Mr Chairman, a list of the offences.
At this stage may I just say that we're seeking amnesty for conspiracy to commit murder, for contraventions of the Firearms and Ammunition Act relating to the illegal possession of AKs and ammunition. Contraventions of any legislation relating to the crossing of international borders, the crime of defeating the ends of justice and amnesty against any claims based on any delict committed by Mr De Kock as a result of his involvement in this particular incident. Thank you Mr Chairman.
ADV BOOYENS IN ARGUMENT: Mr Chairman, I agree with everything my learned friend Mr Hattingh has said. Our respectful submission is that as far as you've already pointed out, it matters not for the foot soldiers that I represent, the four of them, whether or not the information on which they acted was correct. They had every reason to bona fide believe that it was correct and they're also in a position to see the more senior ranks of the police force on the day that they departed and unless there's something specifically on which you would like to hear me as far as this is concerned, I do not think it is necessary to address you comprehensively on that. They acted under orders. I hope that my learned friend Mr Visser, Mr Hattingh claimed that he practised in Johannesburg, he can't get to his library, so I hope my learned friend Mr Visser has got the relevant contraventions, but I would also ask for conspiracy.
CHAIRPERSON: Well, there's going to be some, we are waiting for Mr Visser's written argument so in that time you will have time to have access to a library yourself and can submit us...
ADV BOOYENS: In which event I'll do that Mr Chairman. Mr Chairman, I'm also in a position having considered the Appellate Division Decision that we referred to the other day. It is clear to me that the Appellate Division has stated the obvious in so far as the power of this Committee is concerned to give amnesty for an offence committed in another country, not triable in South Africa, so the high water mark is obviously conspiracy, together with such Statutory offences, which are also involved in here Mr Chairman. I would ask that all four the applicants I represent be granted amnesty in respect of those offences. Unless there is something specific, those are my submissions. Thank you.
CHAIRPERSON: This has suddenly come to my mind, I haven't had a chance to consider it, so I'm throwing it at you. As one of the minor matters is the disposal of the motor vehicle perhaps an offence as well? Perhaps you could think about it and if you think it is if you could...
ADV BOOYENS: Yes, I'll have to look at that. Of course the question of the delict also, but ...
CHAIRPERSON: But this was a, I haven't looked at regulation 80, whatever it is.
ADV BOOYENS: Regulation 80 is a regulation that says if a motor vehicle is forfeited for the State, that the police may then take it on stock and the State may use it.
CHAIRPERSON: Well they were using, just if you'd like to think about it and if any of you want to raise it.
ADV BOOYENS: I will think about it, Mr Chairman. As far as the delict is concerned, of course why we ask for delict is although those persons were killed in Swaziland we do not know if they had dependants, we are not in a position, but even they being under the - live in within South Africa, can of course be pursued here, it seems to me, in any delictual claim, so that's why we've got to put that in.
MR SIBANYONI: Maybe just one question, if it was registered in Moshualiba's name, how was it possible for the Swazi police to trace it back to the S A Police?
ADV BOOYENS: Mr Chairman, if my learned friends undertaken not to cross-examine me, I will try to - as I understand it, how that works is that the motor vehicle that has now been stolen, for example, they would give it new numbers and it would be, the owners would be registered, but it will be registered as far as the municipal authority is concerned, I didn't know about, my impression was that it will have an ordinary say Transvaal registration number in those days, but it would in fact be, as far as the registration authorities, the owner would be shown as being South African police. I didn't think it was important as far as Moshualiba is concerned, but I would - the way most police cars work, it will never be registered in the policeman's name, it will be issued to him and it may have a civilian registration number, but that's the way I understand it, I don't know whether ...(intervention)
CHAIRPERSON: Well isn't it possible it could be the other way around? That they give him the license, the registration in his name, but in their records he is recorded as representing the South African police?
ADV BOOYENS: Yes, that could also be so, Mr Chairman. I must confess I don't know and I'm not prepared to be cross-examined on that one.
MR CORNELIUS IN ARGUMENT: Thank you Mr Chairman, Cornelius on behalf of Snyman, Flores, Britz and Vermeulen. I think the argument's like the command structure, it gets easier on the way down.
I obviously agree with Adv Hattingh and Adv Booyens with their submissions made to the Committee. As far as the applicant - implicated party N J Vermeulen is concerned, both the applicants who are implicated him, testified and said that they obviously made a mistake and that N J Vermeulen wasn't present, so I didn't think it was necessary to present further affidavits or anything from Vermeulen who is a bit difficult to get hold of as he's in Boswan in Sodwana. I ask the Committee to make a finding that he was not involved in this incident at all.
As far as the initially implicated party D J Britz is concerned, I successfully traced his application and tabled as Annexure N all the documentation before the Committee and I ask that he obviously be grated amnesty as pleaded in his documents. The same for Snyman and Flores. They were the foot soldiers carrying out instructions and I really don't think I need to elaborate more than this.
I ask then and I'll also present to the Committee a complete list, but obviously for conspiracy, amnesty for conspiracy, possession of firearms in terms of Firearms and Ammunition Act, the crossing of borders, illegal crossing of borders, defeating the ends of justice and any delicts that might have been committed. I don't think there's any further aspect the Committee wants to hear me on. I don't want to labour you with an elaborate legal argument at this stage.
CHAIRPERSON: I think that what you have said is, this is a case, one of the few perhaps, where the command structure from the top down, has come forward and said yes, that's what we believe, those are the instructions we gave and ...(indistinct)
MR CORNELIUS: Yes, yes, Mr Chairman, I think it's very similar to the Cosatu/Khotso House bomb. We've got the same
type of structure, so I rely on all the decisions he referred to there as well. Thank you Mr Chairman.
MR NEL IN ARGUMENT: Thank you Mr Chairman. Christo Nel on behalf of the applicant Larry Hanton. I have drawn up heads of argument which deals with the general aspects in the Act and the political motivations which I've made available to your secretary. I don't think she's handed it to you, but nevertheless.
CHAIRPERSON: She said she was going to put it here, but I don't think she has.
MR NEL: It's everything that my colleagues have said is just contained in the document and as I represent Larry Hanton, who was directly under the command of Col de Kock, I don't think he's got a problem in that he believed he was following an order that emanated from higher authority and he was, as my colleague Mr Cornelius said, one of the foot soldiers and it's on that basis that I also apply for or ask that his amnesty application be favourably granted. In the heads which I've given to your secretary, I did not elaborate on specific offences. I, at that stage, just asked for the amnesty for murder which is obviously now conspiracy in the light of the Appellate Decision, which I had not seen at the time, but I endeavour also to then supply the Committee with a full list as requested. Thank you, Mr Chairman.
CHAIRPERSON: Thank you.
MR ROSSOUW IN ARGUMENT: Thank you Mr Chairman. Rossouw on behalf of applicant Willemse. Mr Chairman, in the light of what has already been said by my colleagues, I fully agree with them and I think that Mr Willemse who was, I believe, the most junior ranking person involved in the execution of the operation, he was a sergeant at the time at Vlakplaas, the same applies as far as he's a foot soldier is concerned, Mr Chairman. I therefore submit, Mr Chairman, that this Committee can be satisfied as stipulated in the Act, that he has complied with all the requirements of the Act as far as the formal requirements are concerned. His application, that he was in fact a person as set out in Section 20 (2) (b), read with sub-section (f) of the Act and that he has made a full disclosure of the facts relevant to this incident. Mr Chairman, I would then ask the Committee to grant him amnesty in respect of the conspiracy to commit murder, I will also furnish the Committee with a complete list as far as the other incidents are concerned. Thank you Mr Chairman.
MR BOTHA IN ARGUMENT: Thank you Mr Chairman, Botha on behalf of the applicant, P C Snyders. I have prepared written heads of argument. I haven't had time to hand it to my learned colleagues as well as the Committee. I've got it in my possession. I don't know whether the Committee wishes me to hand it up now or during an adjournment. That will be my argument. It is
basically in accordance with what was said now by my learned colleagues.
CHAIRPERSON: As long as it doesn't contain anything that can adversely affect any of your colleagues, I don't think they would object to your handing it in afterwards, would you gentlemen?
MR BOTHA: Not at all, Mr Chairman.
CHAIRPERSON: Right.
MR VISSER: Is it my turn, Mr Chairman?
CHAIRPERSON: Yes.
MR VISSER IN ARGUMENT: My Chairman, it is our submission that on any view of the evidence that you have heard in this amnesty application, this was a case where supporters of a publicly known political organisation, or a liberation movement was targeted by members of the previous State, Mr Chairman, in terms of Section 20 (2) (a) and in terms of Section 20 (2) (b) by members of the Security branch in the course and scope of their duties and within the scope of their express or implied authority, directed against a publicly known political organisation, namely the ANC or liberation movement, namely the ANC, engaged in the political struggle against the State, or a former State, well that doesn't apply, or against members or supporters of such organisation or movement, bona fide with the object of countering or resisting the struggle.
CHAIRPERSON: You're now addressing us on behalf of du Plessis, Els and Erasmus, are you?
MR VISSER: Yes, Chairman, well we appear for a number of others as well, Oosthuizen, Schoon, Erasmus.
CHAIRPERSON: Put it the other way, you're addressing us for everybody except Coetzee and Moshualiba?
MR VISSER: Yes, Chairperson.
CHAIRPERSON: Right, thank you.
MR VISSER: But of necessity the position of Moshualiba and Coetzee will also become relevant because that forms part of the whole incident.
Mr Chairperson, why I started off by saying that is with reference to the evidence of Mr Moshualiba and Mr Coetzee, where they made it clear that Moshualiba was infiltrated and that clearly nothing happened until and up to the stage where it became clear that Mr Mohale was going to put his plans into action.
CHAIRPERSON: Yes, but the difficulty that arises is on Mr Moshualiba's evidence, at the time they left to go to Swaziland, he believed they were going to contact the people appointed by Coetzee and that they didn't know anyone else.
MR VISSER: Yes, Mr Chairman.
CHAIRPERSON: And it was on that basis that Coetzee told de Kock to eliminate them.
MR VISSER: Well Mr Chairman, we will ...(intervention)
CHAIRPERSON: That's the problem you have to deal with.
MR VISSER: At this stage, Mr Chairman, with respect, on the objective facts, if it were so that these people wanted to go to Swaziland for the purposes set out, then we say, Mr Chairman, the conduct of Coetzee, even Coetzee and certainly the rest, would have been under the circumstances of the time, a conduct to counter a revolutionary onslaught or ...(intervention)
CHAIRPERSON: Not if he thought they were only going to contact the people nominated by him, Mr Visser.
MR VISSER: Mr Chairman, we submit that that is not what the evidence indicated.
CHAIRPERSON: That is what you will have to deal with when you have seen the evidence, so let's leave that side.
MR VISSER: I want to go on from there Mr Chairman. Mr Chairman, we respectfully submit, in line with what our learned friends have submitted to you, that from Oosthuizen upwards, there can be no reason to doubt that they acted bona fide and in the belief that on the evidence presented to them, that they were entitled or they were mandated in terms of their position as policemen, to act in the way they did and Mr Chairman, there is very little that we wish to add to what our learned friends have said in that regard.
CHAIRPERSON: On the evidence led with regard to them it appears they were given information from someone they thought they were entitled to rely on and they did and one cannot hold that against them.
MR VISSER: If you're prepared to accept that, then Mr Chairman, the question then, there are two questions remaining. The one, Mr Chairman, deals with the Stopforth Appeal decision and the other deals with the question of the specifying of offences.
Mr Chairman, last week in Pietermaritzburg, where we appeared before yourself and Mr Sibanyoni, where Mr Sandi was not present, we presented a brief argument to you in order to try to indicate that, to make sense of the wording of act, omission or offence, in sub-section 20 (2) (a), sorry 20 (1) (a) and delict or offence in (b), may I just get the Act in front of myself? Yes, 20 (1) (a) and 20 (1) (b), one has to read into 20 (1) (b), for act or omission, one has to read delict, to make sense of 20 (2) which deals with acts associated with a political objective and this leads simply to this submission, Mr Chairman, that the Act does not require the Committee, the Amnesty Committee to specify what the offence was that the applicant may have committed. The amnesty in terms of the judgment of the Constitutional Court by Justice Mohammed is that amnesty must be granted in the widest sense of the word and that means this, Mr Chairman and that is how we have phrased the amnesty applications of all the applicants for whom we appear, is that it means any offence or delict, Mr Chairman, which may have been committed during the course of that incident. Now again here today, we see the problem, if one does not follow that line of thinking, Mr Chairman, because there are all sorts of regulations, statutory provisions, which one might not think about and going to a library, Mr Chairman, is not going to help.
CHAIRPERSON: Mr Visser, I think one must go beyond merely saying the one offence, murder, because there may have been no evidence led before us about crossing the border with false passports. We may not have applied our mind to it at all. You can't later come forward and say: "Oh, well this was all part of that", so I think one has to say "act, or omission or offence arising out of this, or the crossing of the border, or the use and transportation of an unlicensed firearm."
MR VISSER: Yes. You will recall that the submission we made in that regard, Mr Chairman, last week was that one must qualify it. Firstly, by virtue of the date etc, etc, but also by virtue of such amnesty which is supported by the facts and the evidence, that is the main qualifying factor and you will recall, Chairperson that I said that at that stage that it would normally not present a problem because if an applicant who has received amnesty in a particular incident, is later charged, it will be for him to show that he has amnesty and he will have to show that on the evidence the Amnesty Committee considered that part of which he is now charged for, in order for him to convince the Court that he's got amnesty for that.
CHAIRPERSON: Shouldn't one set it out, Mr Visser, to prevent that problem arising?
MR VISSER: Mr Chairman ...(intervention)
CHAIRPERSON: Just in general. I agree with entirely about the general terms, that one doesn't have to specify each offence arising from it, but merely, as I said, general terms as it extends not only to the murder but to the border crossings and the firearms.
MR VISSER: One has no problem in doing that Mr Chairman, as long as it is not considered later by a court of law as being an exhaustive list. That is the big problem. My learned friend Mr Hattingh, has a problem now today for example, because he hasn't asked you for amnesty for any delict committed by his client. No, he didn't, he didn't, but he did so in his evidence Mr Chairman, when he led the witness, so he's covered, but the point we're trying to make is, if one has to, but I think we're not at cross purposes with each other Mr Chairman.
CHAIRPERSON: I think you have to put Section 36 (1) (b) or something...(intervention)
MR VISSER: Correct, because the moment you start doing that, you exclude the others. So, ...(intervention)
CHAIRPERSON: You put it in the widest terms of what the various acts or omissions are.
MR VISSER: Yes, in that sense, Mr Chairman, what we will be asking for and what we've asked for amnesty is, obviously for conspiracy to murder these particular people on this specific date or any other offence or delict connected to this incident, Mr Chairman, which is supported by the evidence and the evidence was that some of, Mr du Plessis is my client, he crossed the border illegally on false papers, so that would be very easy for him if he's ever charged, for that offence to go to the Attorney-General and say "But I've got amnesty for that, here is the record, there's my evidence."
CHAIRPERSON: As I understand the evidence, somewhere or in one of the affidavits annexed to the applications, they said everybody was issued with false passports, it was one of the things that made them convinced that they were acting in the course and scope of their duty, that Headquarters had issued the documents.
MR VISSER: Precisely Mr Chairman. Mr Chairman and the second point is the Stopforth Judgment. My learned friend, Mr Booyens, has in our respectful submission correctly summed it up. That judgment is nothing new. All that it states, Mr Chairman, is it states crisply what this Committee is not entitled to do and with great respect Mr Chairman, we know that no decision of this Committee can in law, bind any foreign State and the qualification of Justice Olivier is the one that we believe is the correct one and that is that, and you will recall there was an argument earlier during the process of amnesty Mr Chairman, as to parts of the offences committed within and parts of the offences committed outside the borders of the country etc and how far must one go, etc. Justice Olivier, with respect, the decision on saying only that which is triable within the jurisdiction of a court in South Africa is what you are allowed to give amnesty for, is precisely correct, the only point about the Stopforth Judgment, Mr Chairman, which we wish to emphasise, is that the court did not direct its attention in that case to delicts, it was concerned with offences only and therefore, Mr Chairman, we submit that when we have a situation such as the present one, where part of the offence was committed outside the country, which could also lead to delictual liability, the Amnesty Committee must hear that evidence in order to grant amnesty for delictual liability for what happened in the other country and Mr Chairman, you were in the Chair in a case precisely in point, Marius Schoon.
You will remember that Marius Schoon instituted action against Craig Williamson for delictual liability for the killing of Jeanette and Katryn Schoon in Botswana, in Angola in fact, in Angola. So the point is, Mr Chairman, first of all it means necessarily that you'll have to hear that evidence about what happened in Angola and that must be what the Legislature intended when it said that you must investigate gross human rights violations committed within or outside the country. That must be to cover that situation where you, where the Committee will have to consider those issues in order to decide, Mr Chairman, whether to grant amnesty as far as delictual liability is concerned as well.
And then there's another reason Mr Chairman, which may not be all that relevant but very often one would assume where, as in the present case, applicants come before you and they ask for amnesty for conspiracy to commit a murder, the evidence of what happened in the other country, may well be conclusive as to whether you might decide that he's entitled to his amnesty for what he's asking for or not. One could think of a ridiculous example, Mr Chairman, if these applicants told you that their intention was to eliminate these three people and they went to Swaziland and you're not hearing the evidence of what happened, but it turned out that in objective fact they went and they murdered 30 Swazi citizens. Clearly that would affect their amnesty application for that part of the offence which took place in South Africa. So, there are good reasons Mr Chairman why the Amnesty Committee must hear the evidence of what happened in the foreign country and thirdly Mr Chairman, there is nothing ...(intervention)
CHAIRPERSON: Because it could also, could it not, affect the question of proportionality?
MR VISSER: It could affect all sorts of things, Mr Chairman. Full disclosure for example, more particularly and Mr Chairman, on that basis, lastly, it is my submission that there is nothing in the Stopforth Judgment that prohibits the Amnesty Committee from hearing that evidence, certainly not from the extract which we've got in front of us, Mr Chairman. We'll get the full Judgment and study it, but certainly there's nothing in that Judgment that prohibits you from doing that, so it was quite correct for you to have allowed the evidence about what happened in Swaziland in this incident during this hearing.
Mr Chairman, those are the submissions which we wish to make. We will have to deal with the other issue that has arisen as far as Moshualiba and Coetzee are concerned and we beg leave and your indulgence to do so in writing Mr Chairman, as soon as we obtain the record of the proceedings.
We would then ask, Mr Chairman, for amnesty to be granted as we have stated, Mr Chairman, in argument now for their parts in conspiracy to murder and any other offence or delict committed by them in respect of this incident Chairperson and as you may find is supported by the evidence. Thank you, Mr Chairman.
MR VAN HEERDEN IN ARGUMENT: Mr Chairman, as I said out at the start of these proceedings, the family of Thabo Mohale has no problem with amnesty provided there is full disclosure and that a political motive is established. I have been informed by them this morning that they will abide by the decision of this Committee. Thank you, Mr Chairman.
CHAIRPERSON: I gather there is no dispute, that he was a member of SANSCO and a prominent member?
MR VAN HEERDEN: Yes, Mr Chairman, that is correct.
MR STEENKAMP: I have no comments thank you Mr Chairman.
NO ARGUMENT BY MR STEENKAMP
CHAIRPERSON: The Committee reserves its decision. We'll take time and await with interest the written argument from Mr Visser. We would request please, that those responsible for the preparing of the transcript of the evidence led, do so and notify Mr Wagener when a copy is available for him and also make copies available to the members of the Committee.
MR VISSER: We're indebted to you, Mr Chairman.
CHAIRPERSON: Perhaps it would be as well, in view of the fact that we're going to get further argument from Mr Visser, if they also transcribe Mr Visser's argument today, but I don't think, in the light of the concessions made by everyone else, I don't think it's necessary to transcribe all of the argument and I will also await with interest the precise details from all the representatives of what they're hoping to get.
That concludes this week's hearing, does it?
MR STEENKAMP: Yes, Mr Chairman, that concludes this week's Hearings.
CHAIRPERSON: We'll adjourn to Monday morning. I suppose we'd better say 10 o'clock. It's the usual starting time.
MR STEENKAMP: Yes, thank you Sir.
CHAIRPERSON: Which matter is the first matter we're dealing with next week?
MR STEENKAMP: Mr Chairman, there is only one matter on the roll next week, it's commonly know as the matter called Pantsu Smith, the Pantsu Smith matter for next week.
CHAIRPERSON: What about the Ngomezulu matter?
MR STEENKAMP: Sir the Ngomezulu matter because of practical difficulties, was withdrawn from the roll. It will be enrolled in the second cluster of the de Kock cluster, Ngomezulu matter.
CHAIRPERSON: In the what?
MR STEENKAMP: In the next cluster, for the next amnesty cluster, it will be enrolled in the next cluster, Mr Chairman.
COMMITTEE ADJOURNS
