MR MALAN: Mr Olifant, in what language will you be giving your evidence?
MR OLIFANT: English.
M A OLIFANT: (sworn states)
MR MALAN: Thank you, you may be seated.
EXAMINATION BY MR LAMEY: Thank you Chairperson. Just before I proceed, there is in the Bundle 1, on page 146 to 152, an application dated in December, 11 December 1996. To this application, there is an annexure listing incidents. My instructions are that incident number 14 from Mr Olifant relates to this specific incident, on page 152. Then Chairperson, there is then another form, amnesty application form, on page 154, which has also then a typed annexure to it and this specific incident is dealt with at paragraph 18 which runs over from page 165 to 166. And then the supplementary statement has been completed in order just to take it all together. Thank you Chairperson.
CHAIRPERSON: For purposes of this incident, we can concentrate on ...
MR LAMEY: Annexure H.
CHAIRPERSON: Annexure H?
MR LAMEY: Yes, may I proceed on that basis Chairperson?
CHAIRPERSON: You may proceed.
MR LAMEY: Mr Olifant, you in 1987, you were attached to the Intelligence Unit of the Soweto Security Branch and your superiors were you co-applicants who have appeared also here before the Committee, is that correct?
MR OLIFANT: That is correct.
MR LAMEY: You had the rank of Constable, is that correct?
MR OLIFANT: That is correct.
MR LAMEY: You were also involved as a co-handler with the agent SWT180, is that correct?
MR OLIFANT: That is correct.
MR LAMEY: You have - a supplementary statement has been typed which you have signed this morning, is that correct?
MR OLIFANT: That is correct.
MR LAMEY: You have read through it and you confirm the contents thereof here under oath which is to the best of your knowledge true and correct, is that correct?
MR OLIFANT: That is correct.
MR LAMEY: Chairperson, unless there is anything else, there are no further evidence relating to this incident, thank you.
NO FURTHER QUESTIONS BY MR LAMEY
CHAIRPERSON: Thank you Mr Lamey. Mr Visser, do you wish to put any questions to Mr Olifant?
CROSS-EXAMINATION BY MR VISSER: Perhaps just for clarity sake Chairperson. Mr Olifant, at the bottom of Exhibit H, page 1, I am fascinated by this question of the false passport. You had a photo with certain information which was false on your passport and apparently SWT180 had the same information, which was also false, but the same false information. What I wanted to know from you is, did he have his own photograph on his passport or did he have your photograph on his passport?
MR OLIFANT: Yes, he had a different photograph.
MR VISSER: His own photograph?
MR OLIFANT: That is right.
MR VISSER: Perhaps on a more serious note, Col Coetzee says that he was the one through which the communication was run from Botswana by both you and SWT180 to Soweto and then from him back to Nietverdiend in the Western Transvaal, because of telephone problems and exchange problems which they had. Could that be correct?
MR OLIFANT: I would say no, that is not correct. What happened is we had a problem with communication, yes, that I believe, but what happened is Col Pretorius requested Peter Lingeni to be at a farm, that was a safehouse in Westonaria so that he could have direct contact with me, because the telephone number which was given by Col Pretorius which it was somewhere in Zeerust, I don't know, it was at a farm, it was a telephone number of a farm, a safehouse in Zeerust, it could not go directly from Botswana so therefore I had to use the telephone number of Westonaria.
MR VISSER: Yes, that is exactly correct. That is why the communication link had to go through ...
MR OLIFANT: Yes, but I had no communication with Col Coetzee.
MR VISSER: I see. Well, when he says that he thinks that he was the one that had communication with you, are you saying it is not possible or are you saying it is possible ...
MR OLIFANT: At no stage I spoke to Col Coetzee in Botswana.
MR VISSER: Pardon?
MR OLIFANT: At no stage I spoke to him when I was in Botswana.
MR VISSER: All right, okay. And the last aspect is that Coetzee and Pretorius seem to recall that only one of the two rooms was charged with demolition explosives. You say in your statement both the rooms were charged with explosives?
MR OLIFANT: Yes, both room, both rooms were ...
MR VISSER: Well, they weren't there, so you obviously have to know better. Thank you very much. Thank you Chairperson.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Thank you Mr Visser. Mr Steenkamp, do you have any questions to put to Mr Olifant?
ADV STEENKAMP: No questions, thank you Madam Chair.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Mr Malan?
MR MALAN: I have no questions, thank you Chair.
CHAIRPERSON: Mr Motata?
ADV MOTATA: I've got none, Madam Chair, thank you.
CHAIRPERSON: Thank you Mr Olifant, you are excused as a witness.
MR OLIFANT: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Visser, what is the position now that we have concluded evidence of all the applicants applying for amnesty in respect of this matter, are we in a position to argue?
MR VISSER: I am certainly prepared to argue immediately Chairperson.
CHAIRPERSON: I think this Committee would appreciate an immediate argument. Mr Lamey is that the position, similar, that you are prepared, ready to argue?
MR LAMEY: I am ready to proceed, thank you.
CHAIRPERSON: Yes, maybe we should start with Mr Visser. Mr Visser, are you in a position to make your submissions?
MR VISSER IN ARGUMENT: Yes Chairperson. Yes. Yes, I can start Chairperson. Chairperson, I refer again to the shortened, the abbreviated Heads of Argument which have been handed up to Committees previously. We will certainly make sure that we give Commissioner Motata a copy thereof. We again rely on those submissions Chairperson. What I must draw your attention to is that the last issue if I may call it that, that was presented to you, was overtaken by two further events or developments if I may call it that. The one Chairperson, relates to the Stopforth decision by the highest Court of Appeal considering the powers of the Amnesty Committee in granting amnesty for offences committed outside the borders of the Republic of South Africa. That is the one issue.
CHAIRPERSON: Yes.
MR VISSER: The other issue Chairperson, which has been argued very lately by us before Amnesty Committees before whom we have appeared, concerns the issue of precisely what is expected by the legislature and therefore by the TRC Act of the Amnesty Committee in regard to the specifying of offences for which amnesty is granted. Chairperson, in both these respects, we can either fully or very briefly address you. At this stage, we believe with respect, that it is not necessary to take up too much of your time, if we may just make our submission very briefly in regard to both these issues.
Chairperson, on the issue of the Stopforth case, we say with respect that it is clear that the Appellate Division where they deal with the apparent non-empowerment of the Amnesty Committee, deal with amnesty for offences committed in a foreign country, is clearly distinguishable from all the amnesty applications that we know of that have come before you and again is before you today because of the following facts, Chairperson - one is the Appellate Division dealt with offences only, not with delicts, not with anything else. They dealt with offences that were committed wholly and completely from beginning to end in the foreign country, whereas amnesty applications which come before you all commenced and the one here today before you again, commenced in the Republic, where certain acts were taken, certain conduct of criminal nature was conducted by the applicants. It was partly within and partly outside. Now Chairperson, I have the greatest respect for Justice Olivier, him having lectured to Commissioner Malan and myself in the early 1960's and far be it from me to take it upon myself to tell you that he was wrong. I will settle Chairperson by saying that the judgment is clearly distinguishable because in point of fact, what Justice Olivier was not informed by counsel of, clearly, is that even in a case where an offence or an act by a policeman is committed in its entirety in a foreign country, it is deemed to be committed in South Africa for purposes of jurisdiction of our Courts. And that Chairperson, if you wish the reference, is an amendment to the Police Act which was in force at the time when all these acts were committed. It was an amendment to the Police Act brought in by the Police Amendment Act, 68 of 1984 which provided Chairperson, and I read the words of the heading to you "to provide that acts or offences committed outside the Republic by members of the Force, that means the Police Force, shall be deemed to have been committed inside the Republic for purposes of ...".
The simple submission which I make Chairperson is that the Amnesty Committee has full authority in our submission to deal with the evidence concerning not only what happened inside the Republic but also the evidence as to what happened outside. We say Chairperson, that gives meaning to the words of the Act which says that the Amnesty Committee shall consider acts and offences committed both within and outside the Republic.
CHAIRPERSON: Yes.
MR VISSER: Because if you don't do that, you just have to ignore those words and we know that you can't, you've got to give consequence to those words.
CHAIRPERSON: And what do you say also to the fact that the definition of what constitutes an act associated with a political objective, includes an act planned, directed, commanded or ordered within or outside the Republic of South Africa during the period under investigation by this process?
MR VISSER: That is precisely the point Chairperson.
CHAIRPERSON: Which will be Section 20(2) of the Act?
MR VISSER: That is precisely the point, yes, Chairperson. It is again repeated in Section 20 which is the section which deals with amnesties Chairperson, within or without.
CHAIRPERSON: Yes.
MR VISSER: Chairperson, as far as the question of specifying is concerned, and again I don't want to present a long argument, but we have grappled Chairperson for a long time with the difference in wording in Section 20 between (1) and (2), where what the Amnesty Committee is supposed to be dealing with, is supposed to be, because (1) speaks of an act, omission or offence in (b) and in (2) it says that an offence must be an offence, if you read it according to the literal meaning of the words. Then (2) goes on to say that that act, omission or offence must be an offence or delict and at the end of the day Chairperson, what occurred to us with great respect is that the answer was there all the time. It means that act or omission in (1), means no more than a delict. Once you realise that, the whole jigsaw puzzle seems to fall together and what that means is this, it is our submission that the legislature did not expect and does not expect in terms of the wording of this Act, for the Amnesty Committee to specify what offences it is giving amnesty for, as long as it specifies that it is any offence or delict committed within the ambit of the incident, properly specified by date and by names, etc, so that an applicant cannot later turn around and say, when he is charged for something else, "I've got amnesty", when it was never intended by the Amnesty Committee. Chairperson, with respect, this point has been taken by Justice Wilson sitting in an Amnesty Committee hearing, we have not had a decision in this regard. We submit with respect that it is correct to say for an applicant, that what I had in mind was murder or assault or whatever the case may be, but at the end of the day Chairperson, it is our submission that if amnesty is granted for any offence or delict committed, within that incident by the applicant, that is sufficient Chairperson, because of the problem that if one starts specifying, we have gone through amnesty decisions handed down by the original Amnesty Committee and we have found to our horror, that by specifying certain acts or offences which have been committed on their own evidence, by applicants, were not specified in the amnesty decision and therefore they might now have, fall prey to being prosecuted on the basis of inclusio unius est exclusio alterius and it is just perhaps to prevent that problem from arising later, to say all acts and offences - may I give you the following example? In the zero-handgrenades, Brig Jack Cronje was given amnesty in regard to the use of explosives and a whole number of Acts and subsections of Acts were mentioned and Chairperson, the problem with that is, he's now got amnesty for those sections, but if you sat down for half an hour, you could think of a whole number of other offences which he had committed, for which he now by necessary implication, does not have amnesty. That problem was solved in the case of Roelf Venter, who was given amnesty in exactly the same incident, but his amnesty reads "for all offences or delicts", so he is covered. The field is covered in his case.
Here you have a situation in the same incident where one man has not got full amnesty, and the other has, on the same evidence. That is to solve or try to avoid that situation from arising, that we say it is important that an amnesty decision must contain the words, if amnesty is to be granted by the Amnesty Committee, "all offences and delicts". Chairperson, if I may return to the matter of Stopforth, I am not sure whether the decision in the London bomb amnesty application has been brought to your attention. We have three copies here, perhaps we could hand it to you. In the London bomb decision Chairperson, the Amnesty Committee under Chairmanship of Justice Wilson has supported or confirmed most of what I have told you here today, submitted here today in regard to extra-territorial offences, and perhaps we could hand that up to you and with the final submission that we rely fully on what is stated here, subject to the additions which I made in regard to the Police Amendment Act and the few submissions which I made to you today.
CHAIRPERSON: Yes.
MR VISSER: Chairperson, apart from that, in the law, as far as the legal position is concerned, it would be presumptuous of me at this stage, to repeat the arguments which you have heard so often in the past and I don't intend to do so. As far as the facts are concerned of the present case, the only discrepancy in the evidence which we were able to pick up, was between Mr Olifant and Coetzee in regard to who actually conveyed the instructions to Olifant from the West Rand while he was in Botswana.
Chairperson, we submit that is not necessary for you to choose between those two versions. The fact of the matter is that there was this laborious method of communications because of the fact that at that time there were no cellphones obviously and they couldn't phone from Botswana to Nietverdiend, but they had to go through Soweto to be able to phone from Soweto to Nietverdiend, there is no argument about that. I submit with great respect Chairperson, that it is not a material dispute and one which you can ignore.
CHAIRPERSON: To what would you ascribe its existence, to faulty recollection?
MR VISSER: Chairperson, we are talking about something which has happened more than 10 years ago, 1987, 12 years ago. It is possible that either Coetzee or Olifant might be mistaken. Coetzee gives the explanation, he says that it was very important that the instructions had to be carried, conveyed correctly to Olifant and that is why he was specifically placed at Soweto and not in the Western Transvaal himself, for that specific reason, to make absolutely certain that the information was conveyed correctly and one has sympathy with that point of view, because remember Chairperson, the idea was that SWT180 had to lure these people as it were, into a room, and he had to go out and then laboriously through this communications channel, inform Coetzee who had to inform Pretorius, who had to inform Special Forces "the people are in the room", and one obviously couldn't wait too long with that kind of information, and you had to be quite certain of your information. So there is some support on the probabilities that Coetzee might be right and Olifant might be wrong, but really it does not take the matter any further, one way or the other Chairperson.
As long as we know what the main moments and features of the operation were, and those were that all these applicants who appeared before you, were there in a supporting capacity. Really one would always be tempted to think that if it hadn't been for SWT180, they wouldn't have been involved at all, but that is just an inference one can draw. The fact of the matter is SWT180 had penetrated this MK structure, he had met these people as set out by Pretorius and by Coetzee in their evidence, in their evidence, written evidence before you, and he was supposed to arrange for a meeting, both at the Lion Park and at the Oasis Motel, both times it was abortive, because these people did not arrive. In the end Chairperson, although no person was injured or killed, we know that in terms of the definition of the TRC Act, a gross violation of human rights, refers to killing, abduction and torture, severe ill-treatment and also to any attempt or conspiracy.
CHAIRPERSON: We are familiar with that, Mr Visser.
MR VISSER: So that is the reason why we are before you Chairperson, and we would ask you with respect for you to accept the evidence of these applicants, to accept that they have made full disclosure, to accept that and to be satisfied that these were actions that took place within the conflict of the past, with a political objective Chairperson, and that it was proportional to the end which they wished to achieve, namely an extension of a violent military offensive, as it were, which was to be extended to the labour field. It is interesting just in that sense, what the idea was. The idea was that while there would be marches etc, by people in the labour field, there would be military attacks elsewhere to as it were, divide the forces of the Security Police, in order to be more effective with the marches, etc, which was actually quite a good strategy if one thinks about it. That is just from a point of interest, Chairperson.
CHAIRPERSON: Yes.
MR VISSER: I have nothing to add, apart from asking you then to grant amnesty to the applicants Chairperson in regard to either conspiracy and or the attempt, on both these occasions and both these occasions were in fact set out in the amnesty application, so it is not as if it is now being sought to extend the application. They were both mentioned, the Lion Park as well as - they were really two incidents. One has to say either there were two incidents, or there was an attempt which took place on two occasions, whichever way one wants to approach the matter, and as well as for any other offence or delict committed by the applicants in this incident. Thank you Chairperson.
CHAIRPERSON: As a matter of interest Mr Visser, hasn't the identity of SWT180 already been revealed in one of our hearings?
MR VISSER: Chairperson, no, the reason for that is that SWT180 has family members who may be compromised, if his name were to be released. There was mention of a first name of SWT180, somewhere in the papers now before you in fact, but not his surname.
CHAIRPERSON: Yes, no, I am aware of that.
MR VISSER: Yes.
CHAIRPERSON: But I just thought that in one of the hearings wherein you were involved, his name might have been revealed?
MR VISSER: No, very pertinently not. The information which we got at the time was that there was some concern about family members of SWT180, yes Chairperson.
CHAIRPERSON: Yes, it is probably a different matter, but it might be the same where the kombi, there was something wrong with the motor vehicle ...
MR VISSER: I wasn't involved in that. If SWT180's identity was revealed there, then I certainly don't know anything about that.
CHAIRPERSON: Yes. I was just raising it as a question of interest. Mr Lamey?
MR LAMEY IN ARGUMENT: Thank you Chairperson. On this aspect of specifying aspects, I had a little while ago the benefit of also hearing the elaborate argument of my learned friend, Mr Visser, before His Lordship, Mr Justice Wilson in Pietermaritzburg if I recall. I must say that considering that argument, I am inclined to agree with Mr Visser. I say that also for the reason that the applicants' legal representatives have been called upon in the past, to provide a list of offences and so forth, and that has placed some, quite an onerous duty on the legal representatives, and one - it might just happen that one could miss something or that the Attorney-General as my learned friend has pointed out, could think out something which have not been specified, and from the applicants' point of view, that might not have legal representation, that could even be a more onerous duty. That coupled with the argument and the reasons which Mr Visser has advanced, I am inclined to agree with him that it was merely the intention of the legislature to grant a pardon which amnesty is actually about, for any offence, act or omission related or inferred from the facts pertaining to a particular incident. It is for that reason also that in this case, I have also in paragraph 16
when I assisted Mr Manual Olifant in drafting his application, worded it in that fashion, that he wishes to apply for any offence or delict which are to be inferred from his participation in the operation. It is very difficult if one also looks at all the elements of a particular offence, mens rea, etc, etc, to determine beforehand whether all those elements are present in order to come to a conclusion that an offence has been committed by a particular applicant or an offence which he could be convicted from. I think I must agree with Mr Visser in this regard.
CHAIRPERSON: May I just interrupt. I am now on the same page with your argument, in so far as I also have my own opinion about the matter.
MR VISSER: Which argument, Madam Chair?
CHAIRPERSON: The one that you have already presented, with regard to having to specify.
MR VISSER: Oh yes, yes.
CHAIRPERSON: Yes, Mr Lamey?
MR VISSER: I may add that, as you can well imagine, both Exhibit A as well as the written argument, are both documents which keep on developing as matters turn up. What I will do Chairperson, is, I will present you with an addition to that written argument very briefly setting out my arguments which I presented to you today, so that you have it in paper in front of you.
CHAIRPERSON: We don't need that, Mr Visser.
MR VISSER: You don't need that?
CHAIRPERSON: We have already applied our minds in respect of this particular matter, but then it was not pointedly with regard to having to specify the offence or the delict, it was in relation to a matter, but it tangentially, but very fundamentally, touched upon the argument you presented to us today. Mr Lamey?
MR LAMEY: Thank you Chairperson. Then regarding the other argument on the Stopforth decision, I must say I haven't had the opportunity of studying that decision in detail. I do not want to make any, I cannot make any substantiated submissions in that regard.
CHAIRPERSON: You are not expected to.
MR LAMEY: Yes, but I want to say this from what I have gathered, I think the intention of the legislature in the Amnesty Act is quite clear, and from what my learned friend has also referred to in the Police Act, one may add in my respectful submission, that the legislature had the Police Act also in mind, when it drafted this particular legislation as I am sure it was foreseen that many policemen would be forthcoming, or would apply for amnesty during the negotiation process which preceded this Act.
CHAIRPERSON: So it is your submission that these applications are properly before this Amnesty Committee?
MR LAMEY: I think in terms of the Act, yes, and that is my submission.
CHAIRPERSON: Yes.
MR LAMEY: Chairperson, then as far as Mr Olifant is concerned, my submission is he was one of the, I think in this whole operation, the lowest ranking person. He did not have the broader picture of the whole political motivation as outlined by the other applicants, but in the same breath, he doesn't dispute it, and I think as far as that is concerned, I think it should also be considered in his favour, the whole political background to the rational for this operation. He acted on orders in this instance, and he also states on the last page, as a member of the unit he also acted against known political liberation movements and he also believed at the time, that the instructions that he received, were given for the purposes of combating activists or insurgents aimed against the South African government at the time.
Chairperson, it is my submission that Mr Olifant's application complies with the requirements of the Act. As far as the difference is concerned, I also wish to submit that it is not important to make any finding as to whether he received his instructions from Coetzee at the time. I think both of them, it is a situation here of bona fide recollection, which could be mistaken one way or the other. If one considers it further, neither of them Coetzee on the one hand, places himself in a position where he gives that instruction towards his detriment, on the other hand, it could have been more advantageous for Olifant to say "I received these instructions from Coetzee", which is a higher ranking officer than Pretorius or Lingeni. I think this is a situation, looked at it from both points of view, which are not intentionally, which shouldn't be really an important aspect and it has no bearing really on the element of full disclosure.
CHAIRPERSON: Yes.
MR LAMEY: As it pleases you Chairperson.
CHAIRPERSON: So it is your submission that Gen Coetzee could have actually underplayed his involvement by simply not saying "I gave instructions to Mr Olifant directly"?
MR LAMEY: Yes, he also conceded that it is possible that it went via Lingeni, that he also conceded. Olifant's recollection is that it went through via Lingeni. He did not have contact with Coetzee. I don't think that any version is really a relevant aspect to the elements of amnesty.
CHAIRPERSON: Yes, the material facts that we have to decide upon?
MR LAMEY: Yes.
CHAIRPERSON: Thank you. Mr Steenkamp?
ADV STEENKAMP: I have no argument, thank you Madam Chair.
CHAIRPERSON: Yes. Do you think this Committee should take the view of granting amnesty or denying amnesty to the applicants?
ADV STEENKAMP: Madam Chair, there is no opposition to any of the amnesty applications.
CHAIRPERSON: Yes.
ADV STEENKAMP: Looking at the matter itself, it is clear that the matter was basically conducted with political motive and objective. It was, there was full disclosure as far as I can see regarding the specific requirements of the Act and specifically Section 20 and maybe I can just mention, regarding Section 19(4) reasonable steps were taken to identify and locate the victims. In this matter specifically, a person was mentioned, Mr Shope, as far as our information, he died recently. We don't have any further information, but in that regard as well, I think the requirements of the Act were also met in the circumstances.
CHAIRPERSON: Yes.
ADV STEENKAMP: Thank you Madam Chair.
CHAIRPERSON: Well, this brings the hearing of the Oasis incident, it has been termed as if it was only one incident, but we do understand the facts involved in these applications, this brings to a close the evidence with regard to the incident referred to in our documents as the Oasis Motel incident. This being the case, we now have to pronounce our decision in respect of the applications before us. We are going to pronounce such a decision before the end of next week. Once we do that, Mr Visser, we will communicate our decision to you through your instructing attorney, Mr Wagener and we will do the same to Mr Lamey and Mr Steenkamp will assist us in that regard, so as to ensure that our decisions in respect of all these applications, can be communicated without any delay to all the applicants in this matter. I thank you for the assistance you rendered to us. We can now go home.
MR VISSER: Good idea, thank you Madam Chair.
COMMITTEE ADJOURNS
