JAKOBUS KOK: (sworn states)
MR MALAN: Please be seated.
MR VAN DER MERWE: Chairperson, I also have a statement which was drawn up for Mr Kok, which is before you. This will be Exhibit J, if we skip I.
CHAIRPERSON: Why should we skip I, I've never understood the reason for skipping I. If you don't mind, let's just stick to I.
MR VAN DER MERWE: I have found the practice like that when I joined the legal fraternity, Chairperson.
CHAIRPERSON: I have found it like that, but I've never understood it. Since we both don't understand the reason, let's just proceed and chronologically number it as I.
EXAMINATION BY MR VAN DER MERWE: Exhibit I. As you please, Madam Chair.
Mr Kok, your amnesty application is embodied in bundle number 3, from pages 32 to page 49, is that correct?
MR J KOK: That is correct, Chairperson.
MR VAN DER MERWE: As the previous two applicants, you have already handed up this application in 1996, and you were not assisted by a legal advisor when you drew up this application, is that correct?
MR J KOK: That's correct, Chairperson.
MR VAN DER MERWE: You confirm the truth and the correctness of the contents of this application in bundle 3, from page 32 to page 49 and you request that this Committee considers it in the consideration of your amnesty application.
MR J KOK: That is correct, Chairperson.
MR VAN DER MERWE: And furthermore, an additional statement has been prepared which is Exhibit I before this Committee, is that correct?
MR J KOK: That is correct, Chairperson.
MR VAN DER MERWE: And you request similarly as the two previous applicants, that paragraph 7 of your application on page 32 of bundle 3, be amended to indicate that you were a supporter of the National Party and that the words "Not Applicable" be substituted with "National Party" and "Supporter".
MR J KOK: That's correct.
MR VAN DER MERWE: And you may continue ...(intervention)
MR MALAN: Mr van der Merwe, I beg your pardon, I don't think it is necessary. I have read it and except for the amendment of persons he's already confirmed it. I think we can just stand by that.
MR VAN DER MERWE: I am satisfied, Chairperson, I will leave it there.
You have nothing else to add, and you confirm that the additional statement is true and correct, is that correct?
MR J KOK: That is correct, Chairperson.
MR VAN DER MERWE: Thank you, Madam Chair, then I have no further evidence to lead.
CHAIRPERSON: Mr Visser?
MR VISSER: No questions, thank you, Chairperson.
NO QUESTIONS BY MR VISSER
CHAIRPERSON: Mr Loader?
MR LOADER: I have no questions.
NO QUESTIONS BY MR LOADER
CHAIRPERSON: Mr Lamey?
MR LAMEY: No questions, Chairperson.
CHAIRPERSON: Mr van Heerden?
MR VAN HEERDEN: No questions, Madam Chair.
NO QUESTIONS BY MR VAN HEERDEN
CHAIRPERSON: Mr Steenkamp?
ADV STEENKAMP: No questions, Madam Chair.
CHAIRPERSON: Mr Malan?
MR MALAN: I would just like to put the same question to this applicant, Chair.
Your brother has testified that you discussed the matter why it did not detonate, do you have any other explanation?
MR J KOK: Chairperson, the method which we used was infallible, I would say it was infallible. The possibility did exist that some of the switches which we had already "had made sure that they did not work", and it may have come about that we had adjusted the same switch to work immediately because once it has been rendered fallible, one could not see this because it was sealed, even we could not see it, unless we had taken the whole switch apart. So this is one possibility. The other possibility is that the detonator could have been dead because we did not provide the detonators for them, only the switch mechanism. It is difficult to surmise afterwards what had gone wrong with the mechanism, because we did not have access to the rest of the bomb.
MR MALAN: Did you not ask Mr Pretorius when he informed you that things had not gone off, to give it back to you so that you could find out where the fault had set in?
MR J KOK: I did not speak to Mr Pretorius about it. He did report to my brother, but to myself he did not report.
MR MALAN: Did you not have any need to find out why you were doing such "bad work"?
MR J KOK: It is difficult because when such an explosion takes place, one can find out what type of device was used, but the switch is usually blown apart.
MR MALAN: But this was not blown apart.
MR VAN DER MERWE: Chairperson, I beg your pardon, but the evidence which was led was that the two that did not explode were destroyed at the scene.
MR MALAN: Oh, I had forgotten about that. I have no further questions.
CHAIRPERSON: They were destroyed by Mr Steenberg.
MR J KOK: That's right, yes.
CHAIRPERSON: Is that all, Mr Malan?
MR MALAN: I have no more questions, Madam Chair.
CHAIRPERSON: Mr Motata?
MR MOTATA: I've got none, Chairperson, thank you.
CHAIRPERSON: Thank you, Mr Kok, you may step down as a witness.
MR J KOK: Thank you.
WITNESS EXCUSED
MR VAN DER MERWE: Madam Chair, that is the evidence on behalf of three applicants I'm appearing on behalf of. I would beg leave at this stage if they might be excused. They are available, I can contact them, but they unfortunately have some other economical commitments to meet and are not able to attend the hearing full-time at this stage.
CHAIRPERSON: Yes, they will be excused on condition that they understand if there is a need for them to be recalled, they will be immediately available.
MR VAN DER MERWE: Definitely, thank you very much, Madam Chair.
CHAIRPERSON: I suppose this concludes your applications, all of you. You don't intend to lead further witnesses in support of your respective clients.
MR VISSER: Madam Chair, Visser on record, we don't intend to lead any further evidence, thank you.
CHAIRPERSON: Yes. Is it the same with you, Mr van der Merwe?
MR VAN DER MERWE: The same, I don't intend leading any further evidence.
CHAIRPERSON: And Mr Loader?
MR LOADER: Likewise, Madam Chair.
CHAIRPERSON: Mr Lamey?
MR LAMEY: Also not in this case, Madam Chair.
CHAIRPERSON: We now come to Mr van Heerden. Mr van Heerden, what is the position with you?
MR VAN HEERDEN: Thank you, Madam Chair. I've been approached by the families of the three deceased and a representative of each family requests an opportunity to testify before this Committee. If I may proceed and then call Nokuthula Skhosana, the cousin of Mr Ngwenya.
CHAIRPERSON: Won't you spell that for us, Mr? The name?
MR VAN HEERDEN: Yes. The first name is N-o-k-u-t-h-u-l-a and the surname is S-k-h-o-s-a-n-a.
CHAIRPERSON: Yes. What language will she be using, Mr van der Merwe?
MACHINE SWITCHED OFF
CHAIRPERSON: Ms Skhosana, the way I understand you, you don't want to testify under oath, you merely want to speak on behalf of the family and share their sentiments insofar as this incident is concerned.
MS NOKUTHULA: Yes, and this TRC process.
CHAIRPERSON: Yes. We are going to afford you such an opportunity.
MS NOKUTHULA ADDRESSES COMMITTEE: Okay, thank you, Madam Chair.
As a representative that has been appointed by the Ngwenya family, I would like to say that the family feels that there are a
lot of things that they do not understand about this TRC process as has started yesterday. And the environment they said they have found to be very alienating and the procedures were not victim friendly, and as such they are happy as a family to be afforded this opportunity to appear before the TRC and to listen to the testimonies of the applicants, but this is not enough.
We as the family have heard everything that has been said thusfar, but the main concern of the family is that the remains should be brought back to the families and the matter cannot be closed until this is done, this goal is achieved. And for us as the family, the granting of amnesty to the perpetrators who are applicants today, should unequivocally rest on the remains being brought back to the families and verify that the remains are indeed those of Richard Ngwenya.
For the family, full disclosure of the truth upon which the granting of amnesty rests means that the correct remains are brought back to the family. And the family wishes to say that they are not satisfied about the applicants' alleged non-recollection of the exact spot where the bodies could be found, the bones could be found. And if it means that State resources or the perpetrators resources should be used to this end, then the Committee should make sure that this matter is pursued.
And the family regards this, not as a privilege but as a human right and justice being done to them as victims, who have thusfar not been taken very seriously. The TRC process has caused further trauma to the families, the families want to say that and would perhaps like some debriefing sessions to be arranged for them.
And the families would also like to be reassured that they will come to no harm by appearing before the perpetrators, who are applicants today. And it seems that for the applicants, everything is allegedly fuzzy and they claim that they cannot remember, but the families want to stress that as far as - and one applicant yesterday went as far as saying that all he wants to do is forget. For the families, the process of closure is very far and today's and yesterday's proceedings have sort of like brought everything to the fore afresh for them. And for the perpetrators everything is so long ago, but the pain and trauma for the family is still very acute and the Committee should bear this in mind as they make their decision on the granting or not granting of amnesty to the respective applicants. Thank you, Madam Chair.
CHAIRPERSON: Thank you, Ms Skhosana. We have noted the sentiments that you have expressed on behalf of the family. Insofar as the issue of the remains of the victims are concerned, as you yourself are aware, we have taken the matter up with the Attorney-General, Mr Liesk in particular and Mr Steenkamp has, without any waste of time, proceeded to act in accordance with the direction of this Committee. If that is not indicative enough of the compassion that this Committee, and in particular this Panel, has displayed insofar as the interest and the rights of the victims are concerned, I am afraid we can do no more. It is our function to be as compassionate to victims as we can and to that extent I, as a Chair, am convinced and am satisfied that I have discharged my duty in that regard to the best of my abilities, and so have been my fellow members that I'm sitting with.
As far as the applicants' rights are concerned, this is a quasi judicial process, we have to indicate fairness and justice which this process is all about. If the process of amnesty has not been fully explained to victims by the Truth and Reconciliation Commission, it is quite an unfortunate situation. To my mind and understanding, as a Commissioner of that Commission, the Commission has done its best to try and explain the process of amnesty to all and sundry. They've held workshops, I think amongst others, the Kulumani group has been quite pivotal amongst the workshops held by the Truth and Reconciliation Commission in trying to educate and trying to make the process of amnesty known to the victims.
I must concede in my capacity as a Commissioner, that the process of amnesty has never found acceptance amongst the victims. I think it will be foolhardy to expect that process to find easy acceptance. But we as a Committee, are governed by the Act and we as Members of that Committee, are acting in accordance with the powers that we have been given by the Act. Our conduct of these proceedings are done precisely within the four corners of that Act. Inasmuch as we do that, we go out of our way to show more than compassion to victims, to be as sensitive to the needs of the victims as possible. We nevertheless note your sentiments.
Mr van Heerden?
MR VAN HEERDEN: Thank you, Madam Chair. If you can grant me a moment, I just want to make sure if the representatives of the other two families also want to continue with ...
CHAIRPERSON: Yes.
MR VAN HEERDEN: Madam Chair, there's only one person who wants to speak, that is George Nhlapo. He's a representative of the Nceba family he's the grandfather of the deceased.
CHAIRPERSON: Will he also be expressing his sentiments without having to take an oath, Mr van Heerden?
MR VAN HEERDEN: Yes, Madam Chair.
CHAIRPERSON: Yes. Mr Nhlapo, would you then take this opportunity to express your feelings and direct yourself to the Committee in relation to the applications appearing before us.
MR NHLAPO ADDRESSES COMMITTEE: Thank you, Chairperson.
I am grateful to the Committee for informing us about our fellow family member who disappeared in 1989. We had no idea about his whereabouts until 1996, when three men came home to inform us that they were coming from the TRC. We were summoned to Braamfontein to meet our deceased, Nceba. We saw him. But then only Nceba was located, not the rest. They then informed us that Nceba was killed by a bomb in an explosion. To date we don't know where he disappeared to. And it is very much disturbing that these people are not coming out to indicate where he disappeared to. We need his remains. We are very much interested and would like to know where his remains are. We did not know anything about this at all until this surfaced. It is our humble appeal to these people to tell us where he disappeared to.
CHAIRPERSON: Are you through, Mr Nhlapo?
MR NHLAPO: Yes.
CHAIRPERSON: The most important question to you is to know as to what happened to Nceba.
MR NHLAPO: Yes, indeed, that's the prime concern.
CHAIRPERSON: In the testimony rendered before this Committee by Mr Pretorius yesterday, if I'm not mistaken, was such that Nceba ended up being buried as a pauper. I don't know whether you heard about this.
MR NHLAPO: Yes, I did hear about this, but we just wanted to verify or get some verification with reference to that information. We want to know where to get hold of him.
CHAIRPERSON: There is a member of the TRC in charge of such similar things and now that you have submitted your request to the effect that you want that if possible you be given the remains so that you can give these remains the proper burial, that is a request noted by the Committee, to go and exhume the body. There is a member of the TRC in charge of that aspect of responsibility. There is also another Committee, Rehabilitation and Reparations Committee. They will contact you so that the other Committee responsible for locating the bones, can help you out pertaining to that. However, what is important is that Mr Pretorius has pointed out already that Nceba had been buried, because had he not been buried we would not know whether the was buried or burnt or whatever. So members of our Investigative Unit will continue in pursuance of that matter. They will meet with you directly and take this matter up.
MR VAN HEERDEN: Thank you, Madam Chair, I've got nothing further.
CHAIRPERSON: Thank you. May I just, as a question of just rounding up - I have already I think stated what I would have wanted to state as a Member of the Committee and also as a Commissioner of the Commission, may I just express my gratitude to the families of Ngwenya, Khumalo and Nceba, for having attended these hearings. We always know when we conduct these hearings, that we open up wounds which people had thought they were already healing, but at least we hope in that so opening up these wounds we are promoting an even better and greater healing than one that would have taken place had it not been because of this process. Because if wounds heal without sufficient information having reached the ears of the victims' family about what happened to their loved ones, how their loved were killed, we feel as a Commission, that that's not sufficient.
We hope this process insomuch as it has opened up those wounds, will also contribute to a better healing, which will make us to be a better society. I thank the family for attending.
Mr van Heerden, you will express it better on my behalf.
Coming back to the matter at hand, are we in a position to present argument?
MR VISSER: Visser on record, Chairperson, I can address you straight away.
CHAIRPERSON: Yes, thank you, Mr Visser, you may proceed.
MR VISSER IN ARGUMENT: Chairperson, we know what this amnesty application is about. The applicants nor ourselves knew what the correct names of the victims were. We are in gratitude to having now discovered who they were and we would ask you to include those names if you should decide to grant amnesty, instead of the ones that had been mentioned by the applicants. I submit with respect that there can be no doubt as to the identity of the people we're talking about and that they are the same persons, although we don't know the real names of two of them.
Chairperson, I would like to start off by referring again to the written argument as to the background and other matters, legal matters which have been handed to you previously, and I would ask you without me referring to that in any detail at all, to bear that into consideration when considering the amnesty applications of the applicants before you here today.
Chairperson, the relevant facts in my submission, are the following. The year in which the incident took place saw increased political activity and violence, particularly as we heard, in the Soweto area, that there were various units and MK units operating in that area and those units were mentioned by Pretorius in Exhibit B, page 5, paragraph 18, where he set them out. He also referred to the position which I will refer to as the Nceba Unit, took up. He explained that according to information, the Nceba Unit was part of Mfomolo Agmed Cathrada zone, that they were responsible or contributed to creating no-go areas where policing couldn't take place, which resulted in heightened political and violent activity within the areas, where policemen could not attend to the violence, that information showed that they were in contact with MK units within the area, and that is paragraph 24 to 26, that they had previously committed attacks. And you will recall that Mr Nceba at some meetings where Lengene had attended, boasted about that and that they were keen to do so again. That all appears from paragraph 28 to 41 of Exhibit B. It also became clear as time went on, that they had previously received training in AK47s and handgrenades and that this unit was particularly militant. That was the evidence given and it was not disputed by anyone.
Chairperson, ...(intervention)
CHAIRPERSON: Who would have disputed that, Mr Visser?
MR VISSER: Well, Mr van Heerden on behalf of the families, Chairperson.
CHAIRPERSON: How would he have been in a position to dispute? The family never attended the meetings where this militancy was displayed by Mr Nceba, so he could have been in no position to dispute.
MR VISSER: Well the point is it stands undisputed before you, Chairperson.
CHAIRPERSON: Yes.
MR VISSER: That's the fact of the matter.
CHAIRPERSON: For a different reason than the one you are suggesting.
MR VISSER: For any reason will do, Chairperson, but it stands undisputed before you.
Chairperson, the situation as it pertained at the time, you heard Pretorius as well as Steenberg and Nienaber testify before you, brought about pressure to obtain information on MK units' activities and identities and whereabouts and that this brought about a false flag operation, as it is called, whereby Lengene infiltrated this particular unit. Pretorius also referred to four other units which are not relevant here, but Lengene infiltrated here, and he had specific instructions, which were set out at page 7, paragraph 30 of Pretorius' Exhibit B. And it is clear, Chairperson, that Lengene had to try to obtain information about the whereabouts and the identities of MK people.
CHAIRPERSON: Yes, whilst you are on that point, what are we to do with the evidence as given by the late Mr Lengene, that having been told that he must obtain information pertinently with regard to the names of the MK connected with the Nceba unit, as well as their addresses, what does he proceed to do? He proceeds to request Nceba to obtain information with regard to the -well, he recruits, he requests him to recruit police informers. He requests him to recruit - I just made a mental note, but there is nothing in his application which suggests that he really was interested in obtaining information about the addresses of the MK members or their identity.
MR VISSER: Yes, Chairperson, of course - and there are other issues. For example at page 233, paragraph 47 he talks about having trained his unit in AK47s, handgrenades and he even refers to limpet mines, which is in direct conflict with the evidence you've heard here.
Of course the problem is that Mr Lengene has since died and is not here to be cross-examined. And Chairperson, with great respect, we have seen often in this process, as we see often in Courts of law, that here's a witness giving slightly or even radically different evidence from what he has stated on paper previously and we saw it again in this hearing. We don't know if Mr Lengene was here and he was cross-examined and presented with proper legal advice, what he might have said. And without attempting at all to undermine the credibility of Mr Lengene, but for the mere objective fact that he is not here to come and repeat to you today what he remembers and perhaps make concessions etc., we submit that you will accept the evidence of Pretorius, or any other witness for that matter, who gainsays Mr Lengene.
CHAIRPERSON: Yes. But my problem appears on page 232, that's paragraph 46, where he talks about having advised or instructed Nceba to identify police informers, obtain safehouses, and recruit other people from his organisation. From his organisation. Not recruit MK members, just ordinary persons. And it was as a result of that recruitment that people like Richard Ngwenya and Mr Khumalo were recruited.
MR VISSER: Well Chairperson, yes of course, and it does create the, it creates an impression that all of this was part of a plan just to kill these people.
CHAIRPERSON: Yes.
MR VISSER: Well with respect, you have heard first of all, the evidence of the applicants, but secondly, Chairperson, quite clearly, and I didn't make much point of it, but quite clearly some of the issues raised by Mr Lengene are clearly wrong. For example, the training of these three for two weeks, it clearly is an incorrect statement. And again, it's just to show, Chairperson, that he may well have made mistakes. His attention might not have been directed by himself to certain issues. He certainly didn't have the evidence of Pretorius in front of him when he made his statement. There's no suggestion that that is so. And if you look at Mr Olifant's statement - you will recall my first question to him is really all that he knew he heard basically from Lengene prior to the incident, and he said yes, and if you look at his statement, it comes very close to what Pretorius says the intention with the false flag operation was. The same with Mr Moni. And a reading of their statements will show one thing and that is that whatever they heard from Lengene, went far beyond what Mr Lengene himself said in his statement. And again, Chairperson, I don't want to criticise Mr Lengene who's not here to defend himself, but in light of the unfortunate fact that he's not here, wherever his evidence is in conflict with viva voce evidence that you're heard, we respectfully submit that you're bound in the law of evidence to accept the viva voce evidence, unless of course it is so flawed with improbabilities, that you can't accept it. But we submit that that is not the case before you.
Chairperson, I don't want to waste too much of your time, I'm just wondering whether I can't put my fingers very quickly on precisely what I want to show you to support this submission of mine. If you look at page 65, where Moni has made his affidavit ...(intervention)
CHAIRPERSON: That's Olifant's.
MR VISSER: No, that's Moni, Chairperson.
CHAIRPERSON: Oh, this is Moni.
MR VISSER: Yes, Moni. I'm referring to bundle 2, I should have added. Bundle 1, I'm terribly sorry. Yes, Chairperson, I haven't prepared properly on all the details, but I can recall and I submit that if you read the statements of Olifant and all the statements of Moni, you will find a lot of information regarding to what pertained to this unit, which Mr Lengene did not mention. And it is from that point of view as well that we submit that the evidence given before you here yesterday and today ought to be accepted if there's a conflict.
Now Chairperson, as it happened the matter got out of hand. Thinking back in calm retrospect and using one's common sense, one can see why it happened. Clearly the Nceba group started expecting things from this man Lengene who presented himself as an MK cadre and the obvious things they would have expected would be training, would be weapons and would be training inside the country, weapons, and assistance to go outside the country to obtain military training and that's exactly what happened here. As Gen Nienaber said, at the end it turned out that they were busy with creating a monster. This in turn, because the information was not forthcoming as regards MK units, meant that Pretorius had to make more and more concessions in order to protect and for the upkeep of the credibility of Mr Lengene, he told you that first of all he gave him a Russian firearms, an AK47, handgrenades to go and show these people.
There was then promises made, if I remember his evidence correctly, about training and eventually when it came to the question of elimination, they demanded that they be sent out for training in a foreign country outside the borders of the RSA, as soon as the incident had been taken care of. So at the end of the day when matters started getting out of hand, because of demands, it was felt that Lengene who had not been exposed to the latest developments and ideas of MK, that somebody had to be brought in who had fresher knowledge of these issues and it was decided to bring in Moni and Monyane from Vlakplaas. And this happened about a month or so after the initial penetration, so the evidence was, of this group by Lengene. Moni also in fact supports that contention.
Moni comes in and he is now represented as an MK who has come in to deal with the Nceba Unit, and another false flag operation and he is also instructed to give them at one point - and by all accounts, Chairperson, this was very close to the actual incident. It must have been - Mr Moni in fact refers to it as the previous day, when he gave them instructions in the use of weapons.
CHAIRPERSON: He corrected himself, he conceded that he couldn't remember. If you read his affidavit it gives one an impression that there was only one training which lasted between two to three hours.
MR VISSER: Yes, but that might be two.
CHAIRPERSON: Yes, but then he corrected himself and he said it was over a two week period and the contact he made with them was only on two occasions, so he doesn't know when exactly.
MR VISSER: Yes, but the point I'm making is this. That whether it's one or two, after the last one, if I may then refer to it, it was very close, that must have been very close by all accounts, to the actual incident. And you will recall the evidence of Pretorius and confirmed by Moni, that what he learnt was that the group of Nceba had prior knowledge and had obviously had prior training in the use of AK47s and handgrenades and that he told Pretorius that.
CHAIRPERSON: That was my problem I must concede, Mr Visser, that was my problem because when you read Lengene's affidavit, one doesn't come out with an impression that these young persons were trained in any use of weapons. But I put the same question to Moni, how he came about to advise Pretorius of their training. He admitted that he advised Pretorius that his opinion or his impression of them was that they had already received training, but then he went on further, which actually sorted my problem and left me a little baffled, but then he confirmed Pretorius' version that Mr Nceba himself had told him ...(intervention)
MR VISSER: That's the point, yes.
CHAIRPERSON: Yes.
MR VISSER: Yes, that's precisely the point that I was coming to. In fact it was confirmed by them, Chairperson. Apart from the fact that Moni said he could see that they knew what it was about, Mr Nceba actually confirmed to him the ...(intervention)
CHAIRPERSON: Yes, he told him.
MR VISSER: He told him, yes.
So a situation had then developed. And these are all part of the material, or the relevant facts in my submission, had told them that and had started making demands which led up to this situation. No information was forthcoming, but one thing that appeared fairly clearly was that this group was waiting for weapons and if they had received the weapons, they would have, in all probability, gone over to attacks. There's no dispute about that before this Committee.
So Chairperson, then a decision is taken and you've heard very full evidence by Pretorius, confirmed by Nienaber, as to the fact that this was not a decision which was taken easily and on the spur of the moment, it was a matter which was based on information which had been brought by Lengene to Pretorius, and which he had told Nienaber about on an ongoing basis. And Chairperson, it is quite clear that this was not an easy decision, particularly for Nienaber. You will recall his evidence, that he found the whole thing so distasteful that afterwards he didn't even want to know what the details were. And I submit that that is typical of a man who came to a decision very hesitantly, but they discussed and they considered all possible alternatives. And we submit with respect, that if you analyse that evidence there is a very good reason why they could not do any of the things which they considered. And at the end of the day, bearing in mind the issues mentioned by Pretorius and confirmed by Steenberg and Nienaber, a decision was reached and that was that there's only one way out and that was to eliminate.
I want to make it clear, Chairperson, that the intention of setting in detail what considerations they considered, is not intended to be placed before you to show that they want to excuse themselves, or to want to show that they acted in self-defence or for any other excuse in law, but merely to make a full disclosure before you, in order to bring you into the picture of what tormented their minds at the time when this decision was made.
Chairperson, when the decision was made it was decided on the advice of Pretorius, that limpet mines that had been doctored be used. The reason for that were twofold, the one is that it would appear prima facie that here were activists that had blown themselves up with faulty ANC weaponry. And the second possible consequence that was foreseen was that it might stem violence because prospective activists wanting to use limpet mines, might be scared to do so in the future.
Chairperson, when the decision was taken ...(intervention)
CHAIRPERSON: May I just take you back.
MR VISSER: Yes.
CHAIRPERSON: Why should it have acted as a deterrent to other activists? Is it not conceivable that the other activists might have simply taken this as having been carried out, an operation carried out by people who were not properly trained?
MR VISSER: Well Chairperson, place yourself on the ground, in the position of an activist, how does he know? Does he take that chance? But in any event, this is what the applicants considered. Whether in fact it would have turned out that way, that's another matter. But they told you what they considered. And in the spirit of making full disclosure, we presented that to you, Chairperson.
So Chairperson, the fact is, and Pretorius sets this out in paragraph 43 of Exhibit B, the fact is that they knew or they seriously suspected that this group would go over to some attack or other. And as Pretorius put it, what they did was to use the limpet mine scheme to direct the aggression to a place where other people would not be injured or killed and where no great financial, economic damage would be done. And that was the signal boxes.
The members of the group were then informed, there was a recce, reconnoitre - I'm not sure how you pronounce it ...(intervention)
CHAIRPERSON: Reconnaissance.
MR VISSER: Reconnaissance, yes, ... done and Nceba and his comrades were obviously keen, as Mr Olifant said ...(intervention)
CHAIRPERSON: Well as you have also stated, you had created a monster.
MR VISSER: Yes, but a monster in the sense that I meant, not a monster in the sense that it was something that was created where there was nothing before. That's not my submission.
CHAIRPERSON: I'm not saying it is.
MR VISSER: No, I just want to make that distinction ...(intervention)
CHAIRPERSON: There was something, but then you created an even bigger monster by training the group in the use of limpet mines. Initially they didn't have that training.
MR VISSER: Chairperson, the evidence there is not what you're putting to me, with respect. The evidence is that they were never trained in the use of limpet mines until after the decision was taken to eliminate them. That was quite clearly their evidence. They had been trained before, and Lengene says in paragraph 47 that he had trained them. But that doesn't accord with Pretorius' evidence. Although, how do we know, it might be that Lengene trained them, that Pretorius didn't know of, but what he knows of is that Moni was sent to train them in AK47s and handgrenades, and at that stage it appeared that they had been trained before. But what was made quite clear and I made a point in re-examination of clarifying that again, was that the training in the limpet mines, such as it was, only took place after the decision had already been made for them to be eliminated. They were then given a limpet mine and they were told to place it on the signal box and to pull the pin.
CHAIRPERSON: And the modus operandi for the elimination had been taken.
MR VISSER: Yes, yes, indeed Chairperson, it was only after that.
MR MOTATA: And is it after that when they realise no further information could be gained from Nceba, who was a person who wouldn't volunteer that information, a decision was taken that the training was merely to keep confidence that they have contact with these people?
MR VISSER: No, Chairperson, as I understand the evidence, rightly or wrongly, it became apparent that Nceba was not going to give the information prior to the decision being taken. That was part of the consideration.
CHAIRPERSON: I understand that. What wasn't quite clear to me was when the modus operandi was taken with regard to the elimination.
MR VISSER: That was at the last discussion. We don't know how many discussions there were between Pretorius and Nienaber about the elimination, but Pretorius - or was it Nienaber, said there may have been one or two.
CHAIRPERSON: Well you heard there was more than one.
MR VISSER: There was more than one. I think we can with safety accept that. But it was on the last occasions and it was after the decision had been taken to eliminate, then Pretorius said alright now, the way in which we should do this I suggest, is by using limpet mines, I can get the fuses that have been reduced to a zero retardation, I think is the word, zero tolerance. And that only came after the decision was taken, as I understand the evidence, Chairperson.
Chairperson, we know, and I don't want to dwell on what happened, the evidence is pretty much the same from all the operatives, that what happened is they went out - we set out at page 13 of Exhibit B, who accompanied who, for easy reference, but it is clear that only one of the mines exploded, there's no dispute about that, and that Elias and Castro were then shot by Moni and Lengene respectively, with the AK47s which they had in their possession.
Thereafter, when this was reported at Gys Farm, there was some concern about the fact that the mines had not exploded, there was some concern that they had not made provision for the contingency that one or more of the mines would not explode, you heard the evidence of both Steenberg and Pretorius, and they immediately realised that they would have had to take further action in order to protect themselves if nothing else. They then went to collect the bodies. We know how. First it was Castro and he was left in a bluegum bush when they went to fetch Elias and Chairperson, they then picked up Castro, went back to Gys, picked up tyres and petrol and then they drove to a spot which they have described to you where the bodies were placed in the ditch and they were covered by petrol and oil and tyres and set alight and their bodies destroyed.
Chairperson, I may or may not have left out one or perhaps even more relevant facts, but those are the material facts in my submission, regarding this incident. And as far as that is concerned, it is my submission that the three applicants for whom I appear have gone out of their way to make a full disclosure to this Committee about precisely their part in this incident, they have held nothing back, they have conducted themselves, in my respectful submission, as one would expect from honest witnesses, they have made concessions where they thought they could make concessions, they have not adopted an attitude that they are right and anybody else is wrong, they have tendered their assistance in any way at all, in relieving the pain of the families. We hope that something might come of that, we don't know. I heard, and perhaps Mr van Heerden can elucidate on this point, but I heard for example, that apparently in relation to the bones that I asked Mr Olifant about, that certain DNA tests were done. I didn't know about that, but it's something you could take up perhaps with Liesk.
CHAIRPERSON: Yes, that will be taken up. I think we'll be able to get further elucidation from the A-G's office.
MR VISSER: Yes, Chairperson. And by and large Chairperson, with respect, we submit that there are no material differences on the relevant evidence concerning this incident, among any of the applicants. There are some differences and I'm going to refer to the immediately, but it is my submission that Mr Moni as well as Mr Olifant by and large, gave evidence which is comparable and which can fit in with the evidence of the three first applicants and vice versa.
Chairperson, coming then to what disputes there might be, I have submitted to you that in my submission they're not material. The one issue is whether or not they were ordered, should the mines not be set off, that the activists had to be shot. Very properly ...(intervention)
MR MALAN: But surely, Mr Visser, that's not in dispute after the concessions given.
MR VISSER: Well Chairperson, after cross-examination and the evidence of all the people, in fact there are very few points that remain an issue. I'm just lifting out the points on the papers, just to remind you what the issues were, but my submission is that basically there's nothing left in dispute apart perhaps from, not even Grobbelaar, but perhaps.
The issue of whether they were ordered to shoot, it's quite clear on the probabilities that at least Pretorius' body language must have told them that and they're given AK47s, on Pretorius' own version. I mean, to do what with? To shoot with, clearly. The issue which was mentioned of an order to shoot Moni, he himself has set that straight. When Elias died, Chairperson, it is the impression on all the evidence, with great respect, that he must have succumbed very soon after being placed in the red Husky. Even Olifant has conceded that he didn't inspect the body and as far as he's concerned, he may have been dead when they reached the farm. Pretorius says that it was a very short distance from where they picked up Olifant to where they Castro and it was a question of within minutes, and when they reached that point he had succumbed to his wounds.
Who had fetched Moni and Olifant, Chairperson, is really totally irrelevant basically. ...(intervention)
CHAIRPERSON: What? Come again, Mr Visser.
MR VISSER: The issue of who went to fetch Moni and Monyane from Vlakplaas on the first occasion, Pretorius has conceded it might have been him. He remembers it differently, but it ...(intervention)
CHAIRPERSON: It's not sufficiently relevant for us to decide.
MR VISSER: It takes the matter no further.
CHAIRPERSON: Yes.
MR VISSER: Whether only AKs, or two AKs and a Tokarev, or two AKs and a Makarov were given, Chairperson, these are the type of disputes or difference in evidence one would expect after 10 years. And clearly, for people who made their life, their livelihoods basically, at Vlakplaas and in the Police, by the use of what they used and that is firearms. It is so easy to understand that such a discrepancy could turn up.
CHAIRPERSON: In that case, Mr Visser, shouldn't we probably believe what Mr Moni and Olifant and Mr Lengene are saying, because they all seem to be saying Mr Monyane, for reasons of his youth or being younger than the others, the fact that he was younger than the other operatives, meaning Vlakplaas operatives, he was given something other than an AK47. The others are saying a Tokarev and one is saying a Makarov.
MR VISSER: Chairperson, I stand ...(intervention)
CHAIRPERSON: But clearly Mr Pretorius must be wrong in that regard.
MR VISSER: Well, except that at page 196 of bundle 1, Olifant supports Mr Pretorius, at the bottom of that page. I did not understand Mr Olifant to give evidence about anything but AK47s, but really it takes the matter absolutely no further, as you're already pointed out, Chairperson. So it's not even necessary for you to accept the one or the other's version really, with great respect.
Chairperson, unless you want to hear me on anything else that might be bothering you about those issues, I would like to come lastly and very briefly, to the issue of the implicated person, Mr Coetzee. We have heard, I've counted no less than six version given by Mr Olifant in this regard. As you from the Chair have pointed out, your failure to be able to understand, we have the same problem. We fail to understand if such a conversation took place, how it could ever have been related to this particular incident. We take it no further than that, Chairperson. If the Attorney-General decides that Mr Coetzee should be prosecuted, well we'll deal with that matter when the time comes. But at this stage, Chairperson, quite clearly there is garbled evidence before you about any part that he might have had in this situation and we find, and we must say this, we find it unfortunate, Chairperson. We agree with you in that regard, that such a matter had to be raised in such sensitive circumstances as the present one, where the bones of the deceased have not been found. We actually find that in bad taste.
As far as Grobbelaar is concerned, Chairperson, well whether there was or wasn't a telephone call is not really a problem, Pretorius conceded there may well have been. What was said in that conversation, Chairperson, is clearly in dispute. Not only is Mr Olifant's evidence that Grobbelaar was informed about the operation, disputed by Pretorius, but is also disputed by himself in his original amnesty application where he suggested that Grobbelaar had said to Pretorius "well go on with your work". So Chairperson, that takes the matter no further and again it's an issue to be decided by the Attorney-General, and if that should happen, well then we'll deal with it. But other than that, I don't believe that it is necessary for me to take up further time of yours with those issues.
In any event, as my attorney just correctly points out to me, is that for those incidents for which Coetzee and Grobbelaar, in which they took part, they have applied for amnesty, Chairperson, and that's on record in the records of the Amnesty Committee. It's most improbable that they would leave this out, where they are now being implicated.
Chairperson, with that, I submit with respect, you have heard on the evidence what these people might have made themselves guilty of and we would ask you to favourably consider, you and Your Honourable Committee, granting the amnesty as described by us on the cover sheet of Exhibit B and Exhibit C and D, between two lines on the first page. And Chairperson, in all the statements which are exhibits before you, all the witnesses have also stated, as they understand, the different offences for which they need to obtain amnesty and we would ask you to favourably consider and to grant such amnesty to the applicants. Thank you.
CHAIRPERSON: Thank you, Mr Visser. Mr van der Merwe, before I come back to you, I would like to start with Mr Loader first and then proceed to Mr Lamey, then I'll come back to you.
MR LOADER IN ARGUMENT: Thank you, Madam Chair. Madam Chair, my learned friend Mr Visser, has very correctly articulated what the central issues are in this matter and where he perceives the points of dispute to lie in and in that respect I'm in complete agreement with him, with respect. In fact I go so far as to suggest, as pointed out by you, Madam Chair, that in respect of my client, the applicant Mr Moni, and Mr Pretorius, there remain no points of dispute and there remain no material areas of their respective versions that are not reconcilable with one another.
At the outset of the application and on a cold clinical reading of the original statements as they stood, there appeared to be one or two aspects of variation and potential dispute and ...(intervention)
CHAIRPERSON: Inconsistencies.
MR LOADER: Inconsistencies. ... and that certain has been explained. And I don't believe, with respect, that I need to go back and highlight all of those aspects now, it's been dealt with. I'll certainly address specific aspects if you wish me so to do.
In respect of Mr Moni and his application, in broad terms he confirmed the contents of his original affidavit insofar as it related to all of the events leading up to the incident itself. And he dealt in detail as well as in broad terms, with his background, his training, his involvement with the African National Congress, his exile period out of the country, his reintroduction into the country, his arrest, his detention and the circumstances surrounding that detention. And I mention that because in my respectful submission, it's directly relevant to what governed his thought process throughout the period of time he was then and thereafter working and seconded to the, or incorporated within the ranks of the South African Police at that stage. He was then an operative and known as an askari at Vlakplaas, they worked under extraordinary circumstances, they were subjected to harsh regimens of discipline, they worked in circumstances where orders were never questioned, instructions were never questioned, insubordination was never tolerated, high standards of discipline were expected and maintained and exacted if necessary, by force.
CHAIRPERSON: But not when it comes to drinking.
MR LOADER: Well with respect, Madam Chair, when it came to drinking, when it came to drinking at Vlakplaas, those standards were still maintained. What he's articulated in his statement is that one of the central problems that the askaris in particular had, was an inclination to resort to the bottle when times were tough. And this was what invariably landed them on the wrong side of the disciplinary line when it came to the attitude adopted by Mr Eugene de Kock at that stage. And he's highlighted the incident that transpired and occurred at Vlakplaas at a particular point in time, which must have been a terrifying incident for him. And he highlights all of these to describe and convey what it meant to be an askari, a former ANC activist now working within the ranks of the South African Police. In essence, what's being conveyed is that one finds himself in no-mans land. And that was the situation that Mr Moni found himself in at that stage.
He's described how they were then seconded with Monyane, him and Monyane seconded across to Mr Pretorius' unit and operation and he describes then all points reconcilable with Mr Pretorius, how the incident occurred, how the introductions were made through Lengene to the three activists, how the training occurred. My learned friend, Mr Visser, has touched on the potential points of variation as to when and how and the nature of the type of training that was implemented with these particular three individuals and I submit with respect, those are the precise sort of details that might become clouded over this period of time. Mr Moni has articulated that the contact could have been over a two week period, there might have been two separate contacts, they may have trained them on two separate occasions. But the fact of the matter remains, and it isn't a point of dispute by any party here, is that training was afforded to them, albeit on crash course basis, and as a result of that training and as a result of that contact, the three individuals agreed to cooperate and participate in the planned operation, and that was to detonate these explosives at designated points in order to commit sabotage. Certainly that would have been their intention at the time and what they understood themselves to be embarking on.
It's been described to you in his evidence, how the incident occurred.
The central issue that required explaining by Mr Moni, and in my respectful submission that has now been explained, was why there is a discrepancy between his initial statement made at the time or in October of 1996, and why there was a subsequent change where in the initial statement he seemed to indicate that he was acting on self-defence or as a result of certainly, an initiated attack against him. He freely concedes and openly concedes that that was not the case, that when he shot he shot to kill, no-one shot at him. On a question from Mr Malan, he very properly indicated his intention was at all times to shoot to kill.
At no stage has he indicated viva voce or otherwise, that he saw sought to disassociate himself from the objectives of the mission. It was stated quite clearly from the beginning that the objectives were to eliminate the three individuals, he knew what his instructions were, or he certainly knew what he understood his instructions to be from Mr Pretorius in respect of, should anything go wrong, their weapons were to be used and he used his weapon.
CHAIRPERSON: But when he initially used the word "I deliberately shot him at the legs", it didn't amount to disassociating yourself.
MR LOADER: He explained that it could be perceived to be as such, and he was questioned at length in this regard. I refer to the line of questioning for clarification by your colleague, Mr Malan, in this regard and the situation and the scenario was put to him that he knew what his instructions were, that he was to shoot to kill, he did in fact fire his weapon, it was an automatic weapon, he then goes off looking for Mr Olifant, assuming that he hasn't in fact eliminated the activist, he subsequently discovers that the activist is indeed found still alive or still breathing. And this statement of course is put together after the fact and he describes it as having made certain assumptions about what had happened at the time. He stated on more than two occasions, when answering these questions, that his intention was always to shoot to kill. And he's not standing before this Committee at all and suggesting that he acted on any other basis.
CHAIRPERSON: You are submitting that we should accept his explanation and we should regard the use of the word "deliberate" as an unfortunate word to have been used in his affidavit.
MR LOADER: Precisely, Madam Chair, precisely, that is my respectful submission to you, and he suggested no otherwise when he gave his evidence before you.
CHAIRPERSON: Even though he was assisted by a legal representative?
MR LOADER: Indeed, Madam Chair, these affidavits I must emphasise, and I'm certainly not in any position to give evidence to you in this regard, but these affidavits were drawn up at a time long before the present legal representatives were ever mandated to act on his behalf. And one is often faced with difficulties of a like nature in circumstances like this where one is dealing with incidents that happened many, many years ago and one is called upon to properly articulate with accuracy what happened in circumstances where even he has freely admitted that on this occasion in particular they had been drinking to fortify themselves. One doesn't know to what extent this may cloud his recollection of the whole thing. He has never offered these as any excuses for what he did, not in the beginning in his affidavit, he's never suggested that he was never responsible for his actions. With respect, in my submission Madam Chair, the import of this disclosure from the outset has always been to say this was the mission, this was the operation, we were to eliminate the three activists, I was involved, I was armed, we were there, I fired my weapon, we eliminated them, we took the bodies and we dumped them, and that is what happened with respect, Madam Chair.
MR MALAN: Mr Loader, is that statement correct? His first application referring to paragraph 51 and also in his viva voce evidence here, it was clearly one painting a different picture in order to prevent, as he understood at the time, him being prosecuted. He said it was a downright lie.
MR LOADER: Insofar as the actual shooting incident goes? Yes indeed, Madam Chair, his ...(intervention)
INTERPRETER: The speaker's mike is not activated.
MR LOADER: ...(indistinct)
CHAIRPERSON: Yes, your microphone is not on, so we are not transcribing ...(intervention)
MR LOADER: I beg your pardon. Yes, he certainly admitted that, that that was a lie. The extent of my submission goes that aside from his description of the actual shooting incident itself, he's never sought to distance himself from the operation. He never then went on and said from that point on I disassociated myself with the consequences, he referred to the fact that even at that stage that on their return to the scene the victim was then still breathing and that he was thrown into the back of the van. There can be no other inference to be drawn from that, but that they all knew that this man wasn't going to survive and he had associated himself with that.
CHAIRPERSON: Yes, I think he has done so, it's just that it was a little problematic for us to understand the sequence in which he gave his evidence in his affidavit. But I will actually go with you on that one, because if one has recourse to page 31 and that's the second paragraph, he does state that though he was nervous he knew that all these young persons were going to die.
MR LOADER: Absolutely, Madam Chair.
CHAIRPERSON: And that's even before he has changed his affidavit.
MR LOADER: Perfectly correct in my submission, Madam Chair. He has from the outset described his culpability, not in the most articulate fashion and perhaps initially in order to be evasive, but it certainly comes out. And certainly as the evidence stands right now and on the disclosure that he's made, in my submission he's made a full and open disclosure to you in that regard.
CHAIRPERSON: Yes, one has to lay blame on the attorney who ultimately assisted him in drawing up these documents.
MR LOADER: I've no problem with that suggestion at all, Madam Chair.
In summary then, with respect, when one considers the provisions of Section 20 and its subsections, in my respectful submission, Mr Moni falls squarely within those subsections dealing with members of the Security Forces and acting with the avowed political objectives. And while he himself has not come forward and said he ascribes to the broad range application dealing with the political climate and motivation at the time, he falls within a particular category of operative and it's not expected of him to be as articulate in that regard, but he falls down the chain and he did the work so to speak, and he's described how that work was done.
In my respectful submission, Mr Moni is entitled to the amnesty which he seeks in respect of his criminal activities and a delictual basis in respect of these offences relating to the murders of all three of these activists. I'm prepared to address you on any additional aspect, Madam Chair, but save for that, that is my address on ...(inaudible)
CHAIRPERSON: Thank you. Mr Lamey?
MR LAMEY IN ARGUMENT: I thank you, Chairperson.
As Mr Visser has pointed out, it's also my submission that on the relevant facts of this matter that pertains to the element of full disclosure, I submit from the point of view of Mr Olifant, he has made a full disclosure of all the relevant facts before this Committee.
It's my submission that as far as the contentious issues which I submit revolve around the communication with Mr Coetzee - and I have noted with respect, Madam Chair's concerns and the lack of understand as to how Mr Olifant could have come to that conclusion, that he and Pretorius fetched the bones the next day. My submission in this regard is that it's clear in his evidence that he had this conversation and this joke with Coetzee, which led him to believe from that conversation, to draw that conclusion. Now that might be a totally unreasonable belief, but that is what his belief is, believed at the time. And the ...(intervention)
CHAIRPERSON: But you do concede that on the facts before us it's really ...(intervention)
MR LAMEY: He also conceded as far as that is concerned, that he could ...(intervention)
CHAIRPERSON: ... is unreasonable.
MR LAMEY: ... it could be an unreasonable mistaken belief, yes. He also conceded that he might be mistaken in his own evidence about his inference to this particular incident. The fact of the matter is that I don't think that this is a - and that is my submission, that there is not any deliberate attempt here to implicate Mr Coetzee. I think there's no evidence before the Committee that indicates any motive on his part to do that. And my submission is that if it's also viewed by the Committee to be a mistaken belief from that communication, then that would not affect the elements of giving him amnesty.
CHAIRPERSON: Yes, which is what I was going to ask you. Do you think it is relevant to the facts which we have to consider in deciding whether to grant him amnesty or not for the offences for which he seeks amnesty?
MR LAMEY: No, I don't think that is at all relevant to the aspect of full disclosure. I might just say this, that if Mr Olifant had that belief at the time from that conversation, although mistaken and unreasonable seen objectively, and he failed to disclose that, that could have been something else. That is all that I want to say on that point.
On the next aspect of Maj Grobbelaar, Mr Olifant was clear, in my submission, on the evidence that ...(intervention)
CHAIRPERSON: I'm sorry to have interrupted you whilst you are busy with your submission. You are now going through the implication of Mr Grobbelaar by Mr Olifant, which again I don't know if you want to address us extensively on. Is it relevant to the facts which we have to consider whether to grant him amnesty or not?
MR LAMEY: No, my submission is from the point of view of Mr Olifant's application, that is not relevant. May I just say this? As far it could be viewed as a deliberate attempt here to implicate a person and as far as it might affect the credibility, it's my submission that he was clear on this aspect and he overheard that conversation and that he merely stated to this Committee what he heard. and then he stated also about his suspicion. Now there are surrounding facts that led him to draw the inference with that conversation that he had ...(intervention)
MR MOTATA: Wouldn't we say it was a monologue and not describe it as a dialogue?
MR LAMEY: Yes, he could only hear one part of the conversation. And then my impression was because he was the officer on duty, that also led him to his suspicion which he stated in his - but those are all inferences and it affects a person which is not an applicant before this Committee, and I submit that it doesn't really affect Mr Olifant's application. We also don't have any gainsay evidence from Grobbelaar under oath in this regard, which could affect really the credibility of Mr Olifant in this regard.
Chairperson, then it's my submission that the aspect on the bonus has become common cause and is no longer my submission, point of dispute. Mr Olifant has ...(intervention)
CHAIRPERSON: He has conceded. ...(intervention)
MR MALAN: Mr Lamey ...
CHAIRPERSON: ... he has conceded on that point.
MR LAMEY: Chairperson, then as far as his political objective is concerned, in this regard he was a Constable at the time, as is the evidence before this Committee and he followed orders. He also stated what he knew about the political objective on page 199, and it's my submission that that is, although not as detailed as that of his Commanding Officer at the time, of which he hadn't had all the total knowledge which Pretorius had, it is not out of line and indeed in line with what Pretorius has stated. It's my submission, to summarise, that he has complied with the provisions of the Act and that he is entitled to amnesty for that reason. I may just want to point out that on page 194 it is stated that
"I'm applying for amnesty as an accomplice to murder or any other offence or delict."
It's my submission that it goes further than an accomplice in this regard because he was part of the briefing and he planned to eliminate them and he participated by forming ...(intervention)
MR MOTATA: That he formed common purpose with the rest.
MR LAMEY: Yes, indeed. I would submit that it goes further, that it forms a common purpose, it forms a conspiracy and as has been the argument earlier this week before you, Madam Chair, I would submit that what would be proper is to grant him amnesty for any offence or delict arising from his participation in the killing of the three victims in this instance. If it's necessary to specify any offence further, I would submit conspiracy to murder, or murder as such, or any lesser offence which could be a competent verdict on those charges.
CHAIRPERSON: Yes. Thank you, Mr Lamey.
MR LAMEY: As it please you, Chairperson.
CHAIRPERSON: I'm not going to be harsh on you, but as Mr Visser will know, because he has appeared before this Committee quite a number of times, we usually take a robust view when amendments with regard to acts for which amnesty is being sought, are not made right at the beginning of the hearing so that we can know which evidence is relevant for this Committee to consider and what aspects of issues must be allowed to be canvassed by other legal representatives. We don't want these matters to be raised during legal argument.
MR LAMEY: Chairperson, are you referring to this specific paragraph?
CHAIRPERSON: I am referring to your intimation that you now seek to amend paragraph 9(a) as appearing on page 194.
MR LAMEY: Chairperson, may I just say what - I know with regard to factual matters, but my experience before the Amnesty Committee - I take note of the sentiments of this Panel, has been a request by the legal representatives to deal with this during submission stage and it is for that reason. I have, initially when we started with this, indicated that I will, at the beginning of Mr Olifant's evidence, address you further on this.
CHAIRPERSON: Yes.
MR LAMEY: But if it is required in future that we make a formal amendment under oath in this regard - I apologise that I haven't done it, I will see to it that it's done.
CHAIRPERSON: You don't even have to make any formal amendments under oath, you need to mention right at the beginning that you intend to amend, so that we can know what issues to ventilate properly for purposes of deciding whether to grant amnesty in relation to what you would have amended. Because if these issues are not brought right at the beginning of these proceedings, then we would be sitting here just going through the evidence not knowing which facts we have to consider as evidence progresses during the proceedings.
MR LAMEY: As it pleases you, Chairperson.
CHAIRPERSON: Thank you. Mr van Heerden.
MR VAN HEERDEN: Thank you, Madam Chair. Madam Chair, I ...(intervention)
CHAIRPERSON: Oh sorry, I am doing it for the second time. Mr van der Merwe, my humblest apologies.
MR VAN DER MERWE: I enjoy it when people ignore me, Madam Chair, I usually make too much of a noise.
CHAIRPERSON: I wish I could say I ignored you.
MR VAN DER MERWE IN ARGUMENT: No, no, not - or forgot about me.
I'm going to be brief. I think the three clients that I've represented, fall in a slightly different category to the rest of the applicants before the Committee. In this regard I would submit to the Committee that they were in the unfortunate situation where they, although they had a political motive, had a political motive of a bit of a different type of political motive. They were never put in any position where they were able to do a proper target evaluation or decide upon the merits of this operation. They were in the unfortunate situation where they received orders to supply or assist in an operation and where they had to rely on the operators on the ground and the people who gave the instructions for this operation, on their perspective and on their authority, or shall I say rather on their target evaluation, for them to have a political motive. In this instance it is clear that they would probably fall under Section 20(2)(f) of the Amnesty Act, in that they were persons who on reasonable grounds, believed that they were acting in the course and scope of their duties and within the scope of their express or implied authority. It is quite clear that when they were approached they were informed that authority for this operation had been granted at a higher level already and they therefore saw this as they have indicated in their amnesty applications, all three of them, that they were participating in this war against the freedom movements who were opposing the government of the day and who were trying to oust the government of the day at that stage. I don't think I'm going to take it any further than that.
I would also submit that they further comply with all the relevant regulations of the Act, they did not perform this for any personal gain, there was no personal malice, ill will or spite.
The only aspect which I think needs to be covered in short is that they did apply for amnesty, all of them, initially in 1996. As a result of the difficult position they found themselves in, they could not always assist the TRC and submit full facts at the initial stages regarding all the operations they were involved with because of the simple fact, as the Committee has heard, that they were not always aware where these apparatus or goods that they were making were being used and if they were used and if they were used successfully.
I would submit that there is nothing to contradict the fact that my clients made an honest and open confession as to their role in this operation and as such there should be nothing that stands in the way of this Committee granting them amnesty as they requested for their conspiracy to murder and murder and also any other crime which could follow from the facts that are before this Committee, lesser crime.
I don't know if there's any other aspect that you wish me to address you on, Madam Chair.
CHAIRPERSON: Thank you, Mr van der Merwe. Mr van Heerden.
MR VAN HEERDEN ADDRESSES: Thank you, Madam Chair. Madam Chair, I received no specific instructions to oppose any of the applications before this Committee. I don't think I can take the facts any further, I think I will leave it at that. Thank you.
CHAIRPERSON: Yes, you leave it in the hands of the Committee. Mr Steenkamp?
ADV STEENKAMP ADDRESSES: Madam Chair, I don't have any comment except to say that as far as the requirements of the Act goes, all the details of the victims were already submitted to the R&R Committee for processing. And maybe just for record purposes, in the application of Mr Lengene, I've spoken to his wife, Mrs Cynthia Lengene, and explained the position regarding this and she informed me that the estate of her late husband is being resolved, there's nothing outstanding and she's fully aware of the applications being heard and wishes that the application be dealt with on the papers as it stands. Thank you, Madam Chair.
CHAIRPERSON: Yes. Well this brings the applications of the applicants that we have considered yesterday and today, to a close. We are going to reserve our judgment in respect of these applications and undertake to be in a position to pronounce our decision in respect of all these applications, in due course. We thank you for attending.
COMMITTEE ADJOURNS
