CHAIRPERSON: Thank you, I'll ask Mr Malan to administer the oath.
JOSEPHUS DANIEL LOURENS COETSER: (sworn states)
CHAIRPERSON: You may proceed, Mr Lamey.
MR LAMEY: Chairperson, before I commence with the evidence, you will see that the applicant's application is embodied from page 45, or at least the extract of his application which is of bearing to this application, is up to page 57. You will see that it has been signed by the applicant on the 12th of February 1998. As with other applicants and their applications in which our firm has received instructions, the applicants were referred to us via the office of the Attorney-General and it is also my instruction that there was an initial application which the applicant undersigned. At the moment I do not have that document in my possession, I can bring it along tomorrow morning if you so desire. The understanding was that the initial application, although it lacked the details and the particulars, would be accepted with the understanding that it could be supplemented at a later date. Therefore what you have before you is indeed the supplementary statement of Mr Coetser with regard to all the incidents for which he has applied for amnesty.
CHAIRPERSON: Is it going to - this further particulars which appear on this application, going to enable you to be able to lead the applicant?
MR LAMEY: Yes no, this we regard, this supplementary as his recollection at the time of signing it of the events, Chairperson, and he will further orally then explain further.
MR MALAN: Mr Chairman, you may know that in many of these instances the applicant simply applied saying as per the statement in possession of the Attorney-General, and then this followed through but in the administration and at our office we accepted this as the application which is before us. It has it's number and it's validly before the Committee, in terms at least of the decision of the office, and as far as I'm concerned we can proceed with this and dispense with the original which is in our possession.
CHAIRPERSON: Thank you. You can accept that we do have the original which as scanty information in our possession. You may proceed.
EXAMINATION BY MR LAMEY: Thank you, Chairperson.
Mr Coetser, I would like to go immediately to page 45, 46 and 47, which is your application form, and this has been signed by you before a Commissioner of Oaths, and with regard to various questions such as 9 to 10 and 11 and further on, you refer to Annexure A of which an extract has been made from your original application which is contained in the bundle from page 51 and further.
MR COETSER: That is correct.
MR LAMEY: Very well. Just with regard to the following, you confirm the correctness of the information with regard to your service in the South African Police, as embodied on page 46 under paragraph 8(b).
MR COETSER: Yes, that is correct.
MR LAMEY: Just to supplement that, is it also correct that you are no longer in service to the South African Police, and that you retired due to medical problems?
MR COETSER: Yes, that is correct.
MR LAMEY: And if necessary, if it is relevant at a later stage we can discuss this, but you are experiencing medical problems, is that correct?
MR COETSER: Yes, that is correct.
MR LAMEY: And then can we just come to your background which has been set out from page 51 to 52. You have had the opportunity to study this once again and is it correct that you confirm what is embodied on those pages?
MR COETSER: Yes, that is correct.
MR LAMEY: Then there is one aspect which has been introduced during this hearing pertaining to the meeting that you deal with in paragraph 1.7 and 1.8 on page 52, where you state that everything began on a particular day early in 1986, when Capt Hechter informed you that you were to go to the Security Head Office where Brig Viktor wanted to see you.
MR COETSER: Yes, that is correct.
MR LAMEY: And at that stage you were a member of the B Section of the Security Branch of Northern Transvaal.
MR COETSER: That is correct.
MR LAMEY: Is it also correct that at that time Capt Hechter told you that he was a Lieutenant? Do you accept this?
MR COETSER: Yes, I accept this.
MR LAMEY: And later he became a Captain.
MR COETSER: Yes, that is correct.
MR LAMEY: You worked in the same section of the Security Branch as he, the B Section and in the rank order you fell under his command.
MR COETSER: That is correct.
MR LAMEY: The Commander of that section was Col Loots, is that correct? Is the rank correct?
MR COETSER: Yes, it is Col Loots.
MR LAMEY: And then there was also Capt van Jaarsveld.
MR COETSER: Yes, that is correct, at that stage he was a Lieutenant however.
MR LAMEY: And your rank at that stage was Sergeant.
MR COETSER: That is correct.
MR LAMEY: In terms of your position, particularly in regard to 1986, you state that you also had informers and so forth that you were handling, was it also your impression at that stage that there was a revolutionary climate in South Africa, as well as a climate of unrest which was at the order of the day in the areas for which the Northern Transvaal Security Branch was responsible?
MR COETSER: That is correct.
MR LAMEY: Then if we can return to this meeting at the Security Head Office, could you explain to the Committee what your recollection was pertaining to the discussion during that meeting in Brig Viktor's office.
MR COETSER: The Brigadier informed us that we had to eliminate black political activists. That was my inference from the discussion.
MR MALAN: Please be specific, did you say that he told you, but then you say that you inferred? Those are two different statements.
MR COETSER: From the discussion I inferred that that was what it boiled down to.
MR LAMEY: Very well. During the period of February to March you were also involved in certain incidents during which petrol bombs were launched on the homes of activists and you were also involved in an incident in Ekangala, is that correct?
MR COETSER: That is correct.
MR LAMEY: And the incident at Ekangala, is it correct that an explosive device was also used during this incident?
MR COETSER: That is correct.
MR LAMEY: And these are the only four incidents in which you were involved, unlawful incidents for which you have also requested amnesty.
MR COETSER: That is correct.
MR LAMEY: The one that we are dealing with currently is the death of Esther Masuku and then also the attack on the home of Oupa Masuku, was that the last incident in which you were involved?
MR COETSER: Yes, it was the last incident.
MR LAMEY: Can you recall before this event occurred, from whom you received the instruction and how long after the incident or how long before the incident did the instruction come?
MR COETSER: Could you repeat that please.
MR LAMEY: With regard to this incident specifically, the attack on the home of the Masukus, did you receive any instruction from anybody to become involved?
MR COETSER: Yes, Lieut Hechter.
MR LAMEY: Can you recall how long before the incident took place you became involved?
MR COETSER: We were instructed on the day to meet at the office that evening, I cannot say precisely what time, but the incident took place at night.
MR LAMEY: And what were you supposed to do?
MR COETSER: I drove the minibus.
MR LAMEY: And when you departed, can you recall whether at that stage you knew where you were going and what you were supposed to do?
MR COETSER: I cannot recall precisely whether or not I knew, but Lieut Hechter informed me that we had to drive in the direction of Atteridgeville.
MR LAMEY: And you then drove the minibus in that direction.
MR COETSER: Yes, that is correct.
MR LAMEY: Tell the Committee, from that point onwards what you can recall, what else happened.
MR COETSER: We moved into Atteridgeville, Lieut Hechter explained to me which route to take and where I was supposed to stop ...(intervention)
MR LAMEY: May I ask you, were you aware as you were driving that there was some or other device that accompanied you?
MR COETSER: Yes, there was a manufactured explosive device in the back of the vehicle.
We stopped and at this point Lieut Hechter and the then Maj Viktor, disembarked from the vehicle. Lieut Hechter took the explosive device and went to the back of the vehicle among the houses.
MR LAMEY: What did you do?
MR COETSER: I remained in the vehicle and waited for them. A few moments later the two came running up to the minibus, they climbed back in and we departed. There was a tremendous blow and there was a white flash of light behind the vehicle. We returned to the Security Branch Northern Transvaal and from that point onwards we all went home.
MR LAMEY: And subsequently were there any aspects that came to your knowledge?
MR COETSER: That morning we returned to work at the usual time, 7 o'clock for seven thirty, once we arrived at the office we resumed our normal duties. I heard, I think it was Col Loots my immediate Commander or Lieut Hechter, told me that a black woman had died. I was very unhappy about the matter.
MR LAMEY: Did her name come to your knowledge?
MR COETSER: No, I did not know her name.
MR LAMEY: Not at that stage?
MR COETSER: No.
MR LAMEY: Very well.
MR COETSER: I went down to Brig Cronje, the overall Commander of the Northern Transvaal Security Branch, and I asked him whether or not I could withdraw from these activities and return to my normal duties and he gave me the permission to do so.
CHAIRPERSON: And when you drove to Atteridgeville, did you know which house was targeted? Did you bear information?
MR COETSER: Could you repeat that please, Chairperson.
CHAIRPERSON: I say when you were instructed by Hechter and directed to Atteridgeville and where you stopped and waited for them to come back, did you know the purpose of that visitation to Atteridgeville, which house was targeted?
MR COETSER: At that stage I cannot recall whether I found out subsequently or whether I knew prior to the incident, but it emerged somewhere that it was Oupa Masuku's house.
CHAIRPERSON: Thank you, you may continue Mr Lamey.
MR LAMEY: Thank you, Chairperson.
Very well. And did you then go to Brig Cronje the next day?
MR COETSER: That is correct.
MR LAMEY: And can you recall what you told him?
MR COETSER: I simply requested him, I told him "please, this isn't my sort of work, could I return to my normal security duties"?
MR LAMEY: Why did you put in this request?
MR COETSER: I did not join the South African Police to do this sort of work, that isn't my sort of work Mr Chairperson.
MR LAMEY: Very well. And at that stage did you think that the woman who had died during the explosion was innocent?
MR COETSER: I assumed so, Chairperson, because in the black community the mother of the family was usually the breadwinner, the one who held the family together and I did not associate her with a political movement or organisation or anything unlawful.
MR LAMEY: You have already responded to a question put by the Chairperson, that you cannot recall when but the name of Oupa Masuku came forward, you cannot recall whether this was prior to the incident or subsequent to the incident. You mention this in paragraph 5 of your written affidavit.
MR COETSER: Yes, I have stated this, but I cannot recall the precise time when they told me that it was his house.
MR LAMEY: Is it also correct that you also hoped that Mr Hechter and Mr Viktor would be able to cast more light on the matter, but that it appears that their recollection about his is also very vague? You also mention this in your amnesty application pertaining to the precise information and so forth regarding Oupa Masuku the activist.
MR COETSER: I had hoped that they would have been able to cast more light on what exactly took place at that stage.
MR LAMEY: Very well. May I then ask you whether or not in the course of your work before you became involved in the incident, had ever heard the name of Oupa Masuku and what he was involved with?
MR COETSER: I had heard of Oupa Masuku, I knew that he was involved with some or other political organisation or political activities, but I didn't know precisely what because I never worked with his file.
MR LAMEY: And when you received the instruction did you accept that Capt Hechter or someone else would have possessed all the necessary information regarding Oupa Masuku which then led to this incident?
MR COETSER: At that stage I believed that Lieut Hechter and other officers would most probably have conducted the necessary research regarding Oupa Masuku, in order to go over to this type of deed.
MR LAMEY: Very well. And when did you determine that the person who had died, this woman, was indeed Esther Masuku?
MR COETSER: In 1996 after Maj de Lange from the A-G offices contacted me.
MR LAMEY: Did you understand either before or after the time, that Oupa Masuku was the target or would be the target of this operation?
MR COETSER: Yes, that is correct, Chairperson.
MR LAMEY: You do not have any personal knowledge regarding the instruction which Hechter received before this operation was launched?
MR COETSER: That is correct, Chairperson.
MR LAMEY: Is it also correct, and I fixed your attention on this during the adjournment with regard to a paragraph on page 56 where you state that you were only aware that the action would be taken to eliminate Oupa Masuku. As you have already stated you did not have any personal knowledge of what the specific operation on that evening involved.
MR COETSER: No, I didn't know.
MR LAMEY: But you knew that an explosive device would be used and you foresaw that it would be used at a house.
MR COETSER: Yes, that is correct.
MR LAMEY: Is it also correct that you foresaw that a person or persons could be killed?
MR COETSER: Yes, that is correct.
MR LAMEY: May I just ask you this, when you compiled your amnesty application you stated that you were aware that the objective of the operation would be to eliminate Oupa Masuku who was a prominent activist, is it correct that you knew at least at that stage that Oupa Masuku was an activist and a target?
MR COETSER: That is correct.
MR MALAN: Mr Lamey, that is very unclear, what kind of target was he, a target for elimination?
MR LAMEY: I will clarify that shortly.
MR MALAN: Well then please do this directly, please don't take us around the bend.
MR LAMEY: I will.
That which you have stated here, how would you describe it today? Did you indeed have personal knowledge that the objective was to eliminate him, or how would you describe it? Is that an inference that you drew or is it something that you foresaw at that stage perhaps?
MR COETSER: I would say that at the time of my submission of this application I was under tremendous pressure and as a result of a condition of illness I may have expressed myself incorrectly. As it was clarified earlier, the objective of the attack on the home of Oupa Masuku was to do so by means of a manufactured explosive device.
MR MALAN: I beg your pardon, Mr Lamey.
Can you recall, at the time of the compilation of this application, whether or not you were in possession of your original statement that you gave to the Attorney-General?
MR COETSER: No, I don't believe so.
MR MALAN: Can you recall whether or not this statement was compiled by whoever took it down from you at the legal representatives and were you instructed regarding this statement?
MR COETSER: Yes, before I signed the document.
MR MALAN: And was any interview conducted with you before your affidavit was compiled, or was there an initial statement when you arrived there?
MR COETSER: I think there was an initial draft statement.
MR MALAN: Is a copy of that affidavit available? This is the same path that we have walked with previous situations.
MR LAMEY: I do not recall that I have any signed affidavit by Mr Coetser from the A-G's office with regard to this incident, I will have to go back and have a look. At times we have had a draft version, sometimes we have a computer printout thereof. I will have to return to my office to find it. Unfortunately I do not have it here with me.
MR MALAN: Never mind, we won't take it any further than that.
MR LAMEY: Mr Coetser, you indeed foresaw that when your amnesty application was compiled you knew that Oupa Masuku was the focal point of the operation.
MR COETSER: Is that when I compiled my application?
MR LAMEY: Yes, his activities.
MR COETSER: Maj de Lange from the A-G's office informed me that Oupa Masuku was the focal point of this.
MR LAMEY: Then may I ask you, in paragraph 5 of your statement you say
"At a certain stage I heard that Oupa Masuku lived in the house which was attacked. He was a political activists. I don't know whether or not this was before or after the incident."
What I want to know is whether or not at that stage in 1986, whether it was the evening before the incident or subsequent to the incident, what is your recollection?
MR COETSER: I cannot recall whether or not it was before or after.
MR LAMEY: But you did not come to hear of this for the first time in Maj de Lange's office?
MR COETSER: No, I knew about this prior to that meeting.
MR LAMEY: Due to the fact that you foresaw that somebody could be killed due to the explosive device and given the idea that Masuku was the prominent focal point, did you infer from that that he had to be eliminated, is that why you have stated it as such in your application?
MR COETSER: Yes, that is correct.
MR MALAN: Mr Lamey, he has just stated that he doesn't know why he said it and that he was under pressure and now you have stated something contradictory to this and he has confirmed it, could you please clarify your position?
MR LAMEY: As it pleases you, I will do so.
If you could just look at this paragraph, the choice of words there about being aware, how would you describe that choice of words?
MR COETSER: I would describe it as incorrect, Chairperson.
MR LAMEY: And is it correct that ...(end of side B of tape) ... choice of words was not immediately noticed by you when you signed your affidavit for the purposes of your amnesty application.
MR COETSER: Yes, that is correct.
MR MALAN: I beg your pardon, Mr Lamey, just for my information - Mr Coetser, what I have inferred from your evidence is that what you can really recall, what you are certain of in your evidence before us, is that you received an order during the course of the day from Hechter, to arrive at the office that evening.
MR COETSER: That is correct.
MR MALAN: Hechter gave you the order to drive the minibus and he gave you directions according to the route and where you were to stop, and you knew that there was a bomb in the car.
MR COETSER: That is correct.
MR MALAN: And you knew that an attack would be launched with this bomb on a house in the vicinity of the place where you stopped.
MR COETSER: That is correct.
MR MALAN: Hechter and Viktor went in and returned momentarily or very swiftly thereafter, jumped back into the kombi, you drove away, you heard a blow and saw a white flash of light in the night sky.
MR COETSER: That is correct.
MR MALAN: Then you found out that Esther had died.
MR COETSER: That is correct.
MR MALAN: And on the basis thereof ...(intervention)
MR COETSER: I found out subsequently that a black woman had died.
MR MALAN: Very well. And on the basis thereof you requested to be withdrawn from these responsibilities and to be returned to your former duties.
MR COETSER: That is correct.
MR MALAN: You did not testify to us that Hechter told you who you were going to be targeting that evening, or did Hechter tell you?
MR COETSER: I cannot recall.
MR MALAN: You cannot recall. It wasn't said to you that the man would be eliminated or that the house would be bombed or that the man would be present or anything like that, you weren't given any information, you were only the driver of the vehicle.
MR COETSER: Yes.
MR MALAN: So what else do you know, without going to the affidavit, emanating from your own knowledge of this incident?
MR COETSER: Nothing more, Chairperson.
MR MALAN: Mr Lamey, you may continue.
MR LAMEY: Thank you, Chairperson.
Then could you look at page 57, this is the section pertaining to the order or approval. Upon the question of whether or not you enjoyed approval for this order, your answer is "yes", and then you state -
"The order originated from Brig Viktor from the Security Branch Headquarters, Pretoria."
You do not say that he gave the orders specifically for this operation, you are just relaying it back to that original discussion.
MR COETSER: That is correct.
MR LAMEY: And then you state that with regard to the execution of the incident, your orders came from Capt Hechter.
MR COETSER: That is correct.
MR LAMEY: And then you also accept that Brig Cronje who was the overall Commander of the Security Branch, Northern Transvaal, also knew about the incident and that it took place with his knowledge and approval.
MR COETSER: That is correct.
MR LAMEY: May I then ask you whether at any stage that you know of, you or Hechter or anybody else were reprimanded by somebody of a higher rank, due to the fact that somebody was killed during this incident?
MR COETSER: I don't know about anything like that.
MR MALAN: Mr Lamey, is there any other relevant matter that you must lead or is that the end of the evidence-in-chief?
MR LAMEY: That was the final matter or relevance. Thank you, Chairperson.
NO FURTHER QUESTIONS BY MR LAMEY
CHAIRPERSON: Thank you, Mr Lamey. Mr Roux, any cross-examination?
CROSS-EXAMINATION BY MR ROUX: There is only one aspect, Chairperson.
Mr Coetser, upon a question put by Mr Malan, you have conceded that with the exception of this specific incident and the fact that you were instructed to drive the minibus vehicle, you don't really possess any other information. In other words, and this is my question by inference, that you did not have any information pertaining to Oupa Masuku and Esther Masuku's involvement in the black liberation movements. Is that correct?
MR COETSER: That is correct with regard to Esther, that I had heard of Oupa Masuku previously, I cannot say which specific political organisation he belonged to.
MR ROUX: So then I can also infer, paragraph 7, page 54, where you say
"When I heard that an innocent black woman ..."
... that this use of the word "innocent" is your subjective inference when subsequently you heard that a black person had died.
MR COETSER: Yes, that is correct.
MR ROUX: Thank you, Chairperson, nothing further.
NO FURTHER QUESTIONS BY MR ROUX
CHAIRPERSON: Thank you, Mr Roux. Mr Visser.
MR VISSER: I have no questions, thank you Chairperson.
NO QUESTIONS BY MR VISSER
CHAIRPERSON: Mr Toefy?
CROSS-EXAMINATION BY MR TOEFY: I do have a few, yes. Thank you, Mr Chairperson.
Mr Coetser, you say in your application that this was a real turning point for you and this incident caused you to go to Brig Cronje and ask that you be relieved from these duties.
MR COETSER: Yes, that is correct.
MR TOEFY: Can you - you also said in your evidence-in-chief that what you told Brig Cronje at that stage was that you - or at least, can you please refresh my memory, what exactly did you tell Brig Cronje, as to why you want to be relieved from your duties?
MR MALAN: His evidence was that he said to Cronje that this was not his type of work and he wanted to return to his normal security duties.
MR TOEFY: Was that all that you said?
MR COETSER: Yes, that is correct, Chairperson.
MR TOEFY: So you didn't have to motivate any further in that the death of someone who was not the target you found unacceptable?
MR COETSER: No, nothing, the Brigadier just accepted it as that and sent me back to my regular duties.
MR TOEFY: Can you remember how long after the incident this meeting took place?
MR COETSER: The next day.
MR TOEFY: The very next day?
MR COETSER: Yes, that is correct.
MR TOEFY: Can I then ask you, you say that you accepted that people might have been killed as a result of your actions.
MR COETSER: That is correct.
MR TOEFY: Now if you accepted it then, then why did you find it unacceptable when somebody in fact died as a result of your actions?
MR COETSER: Could you repeat that please.
MR TOEFY: You accepted that someone might die as a result of your actions, is that correct?
MR COETSER: Yes, that is correct.
MR TOEFY: Then you partake in this particular action which results in the death of someone, why then do you find it unacceptable afterwards, when beforehand you partook willingly in this exercise, knowing full well that someone might die.
MR COETSER: I was a Sergeant during the incident, I had a Lieutenant above me, a Major and a Brigadier as well, and I had tremendous respect for all three these persons, if they gave an order I would carry it out. It was my dream to be in the Security Police, due to the fact that the Security Police was regarded as the cream of the South African Police staff, and I was afraid that if I decided beforehand that I wasn't willing to participate they would chase me back to the uniform branch or somewhere out there.
After the incident I decided that I wouldn't be continuing with this work and that they could chase me away if they wanted to and I asked the Brigadier to excuse me, that this wasn't my sort of work, that I did not become a member of the SAP to kill people, I was there to protect them.
MR TOEFY: Can I then ask you, Mr Coetser, had Oupa Masuku in fact died and not Esther Masuku, would you have found it equally unacceptable?
MR COETSER: Yes, exactly the same thing would have happened.
MR TOEFY: You would have applied or at least ...(intervention)
MR COETSER: I would have left, Chairperson, I would not have continued with that sort of work.
MR TOEFY: Thank you. Mr Coetser, are you remorseful for your participation in this act?
MR COETSER: Will you repeat that please.
MR TOEFY: Are you remorseful for your participation in this act?
MR COETSER: Yes, that is correct, for the last 14 years I have not slept through one single night.
MR TOEFY: Sir, then let me ask the question, in retrospect, was it a reasonable act to participate in? Bearing in mind the political motives, bearing in mind the situation at the time, do you think it was reasonable act to in fact perpetrate?
MR COETSER: I cannot speak on behalf of others, only for myself. It was not acceptable to me.
MR TOEFY: Are you saying that some other act could have been embarked upon in order to achieve the aims that were being sought?
MR COETSER: I didn't know what to suggest at that stage, they also wouldn't have listened to me, I was a Sergeant, not an officer.
MR TOEFY: I thank you, Mr Coetser. I have no further questions.
NO FURTHER QUESTIONS BY MR TOEFY
CHAIRPERSON: Thank you, Mr Toefy. Mr Steenkamp?
ADV STEENKAMP: No questions, thank you Honourable Chairperson.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Mr Lamey, would you accept that we follow the procedure we have followed, that you would re-examine after all questions have been asked, even by the Panel? Adv Sandi?
ADV SANDI: Thank you, Chair, I don't have a question to ask.
CHAIRPERSON: Thank you, Mr Sandi. Mr Malan?
MR MALAN: No questions, thank you.
CHAIRPERSON: Any re-examination, Mr Lamey?
RE-EXAMINATION BY MR LAMEY: Mr Coetser, from the response that you provided to the question which was put by the legal representative of the families as to whether or not you thought that your action was reasonable, you said that you had orders to carry out and you said that the consideration of the reason behind this action was left to your Commanders and that stage.
MR COETSER: I cannot recall whether or not I even thought about it.
MR LAMEY: Very well, just another final aspect. The other incidents in which you were involved before this one, did they also bother you, and was this particular incident the turning point at which you couldn't bear it any longer?
MR COETSER: Every incident bothered me, but particularly the last one, it was the final straw, I didn't want to continue with this any longer.
MR MALAN: Now that Mr Lamey has opened this point, I don't wish to follow on cross-examination, but with your permission, was any person killed in any of the other three incidents, that you were aware of?
MR COETSER: Not that I was aware of, Chairperson.
MR MALAN: Thank you. Mr Lamey.
MR LAMEY: I have nothing further.
NO FURTHER QUESTIONS BY MR LAMEY
CHAIRPERSON: Thank you, Mr Coetser, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Mr Toefy, are you leading any evidence?
MR TOEFY: No I'm not, Mr Chairperson.
CHAIRPERSON: You're not calling any witness?
MR TOEFY: No I'm not, Mr Chairperson.
CHAIRPERSON: Thank you. Gentlemen, I notice it's just past five and I was of the view that we could have short argument in this matter. I shall start with Mr Roux.
MR ROUX IN ARGUMENT: As it pleases you, Chairperson.
I'm appearing on behalf of two applicants. I submit with respect regarding Mr Cronje's application, that his knowledge - and he goes as far as the general instruction which was given against the background of which everyone was aware and of which much evidence has been given, and that is why I submit with respect that pertaining to Cronje amnesty be granted. I just want to be certain of what the relevant list of offences ought to be.
MR MALAN: Mr Roux, I think that you can leave that aside.
MR ROUX: I beg your pardon, Chairperson, because I've seen that with the affidavit there is not a specific application embodied in the bundle, but I will leave that with the rest of the applicants and the offences for which they have applied and allow it to resort under that, so that we do not waster any further time.
Pertaining to the application of Jacques Hechter and particularly his evidence, taking into consideration the evidence regarding his medical condition, which I handed up to you and regarding which evidence has been presented on a previous occasion, I submit with respect, that inasfar as it was within his knowledge he has given a full disclosure of relevant facts according to his recollection, from which various inferences based upon modus operandi and the general actions during this period in time, can be read in the light of the specific circumstances which he has confirmed from page 1 to 19, there has then been a full disclosure of relevant facts. I submit with respect that with regard to Sections 19 and particular 20 of the Act, that he has fulfilled with the requirements of both these acts and their sub-sections and sub-sub-sections, that the prerequisites regarding proportionality and the disclosure of relevant facts - I've already addressed you regarding the latter, with regard to proportionality, I submit with respect, that the test which is applied with Section 20(3)(f), is an overall subjective test. This has been argued previously by du Plessis, my learned leader, and has been accepted according to various principles, among others the Norgard Principles.
CHAIRPERSON: But he never argued that before me and he's not your leader today.
MR ROUX: As it pleases you, I do not wish to waste your time unnecessarily. My submission then is that Section 20(3)(f) should be interpreted according to a subjective test. This subjective test has been expressed in the Norgard Principles, which appear in the book by Rautenbach
"Namibia: The Release of Political Prisoners - Revisited 1989/1990 SAYEL 148."
At page 152 to 158 thereof.
Where this specific subjective test is applied, I would submit that the subjective test within the mind read against the background of this specific applicant, indicates that there was war in this country, that fire had to be fought with fire and that his action against Oupa Masuku, or the residence of Oupa Masuku, was accompanied by intimidation. In his own mind and bearing in mind the subjective test, it is connected with the deeds and the activistic activities of Oupa Masuku, and it must also be borne in mind what Oupa Masuku had to say about himself and what Hechter attached to this. Within the legal context, this person was involved - if I may refer you specifically to his affidavit from 1977 already, in activism. Under Section 22 of the Terrorism Act, he was arrested and later in terms of Section 6, also with regard to public violence. And in 1978 he was in jail, in 1979 he was in jail, in 1980 he was arrested under way to Swaziland.
Hechter elaborated on the fact that despite all these legal actions it was clear that Masuku, in terms of his modus operandi of which information was obtained by a network of informers, did not cease his activities. And it also clear from the article in the Sowetan of the 6th of March 1986, that Masuku, Oupa Masuku specifically, was involved in the Saulsville/Atteridgeville Youth Organisation, the youth organiser of the South African Council of Churches. This appears specifically from this article in the Sowetan. That where Hechter believed subjectively that he targeted a specific activist who refused to cease his activities, this action was beyond the parameters of the law but fell into the context within which Hechter operated at that stage.
Therefore I submit that opposition had to fall in this case and that Hechter like Cronje, ought to receive amnesty for this specific deed. And then also with regard to the list of offences which has been mentioned - I do not wish to refer you to it specifically, but it appears on page 26 of his application, and I would also propose that page 26 under the (i) under 9(a), would also embody the deeds for which Jack Cronje ought to receive amnesty.
CHAIRPERSON: Wouldn't it probably with Jack Cronje, encompass because of the general instructions, murder and attempted murder and not unlawful possession, and probably thirdly, any act or delict flowing from the two? Not necessarily the list which Mr Hechter would, if we give amnesty, get.
MR ROUX: I would propose that that would be the best solution. I hear of any delictual action which might emanate from this, I think that I added this during the initial stages of Hechter's evidence and that shall be added to the list of offences for Jack Cronje. But I would propose that that would be the applicable manner to deal with it.
"In ieder geval, as ek u net daarop kan toespreek, waar hierdie dade voorsien is, uit hoofde van 'n algemene opdrag, dan sou die voorsienbaarheid toets ook van toepassing vind by Jack Cronje, met betrekking tot die gebruikmaking van toestelle en/of ammunisie, en dit sou seersekerlik daaronder tuisgebring kon word. Maar indien u dit so stel, moord, poging tot moord en enige ander handelinge voortvloeiend daaruit, dan behoort dit dit te omvang. Soos dit u behaag."
CHAIRPERSON: Thank you, Mr Roux. Mr Visser.
MR VISSER IN ARGUMENT: Thank you, Chairperson and Members of the Committee.
Mr Chairman, the invidious situation which we all find ourselves in this particular incident, is the lack of the ability to remember the detail, and a question which will certainly exercise your mind is one which has been put by Mr Toefy, and that boils down to this, in how far can the lack of memory eventually be said to be a lack of full disclosure? Chairperson, that in my submission, must be the single most important issue in the present applications. My submission to that is that if one views the requirements of the Act in Section 20, it blandly states that an applicant for amnesty must make full disclosure of all relevant facts, in order to obtain amnesty.
We submit however, that on that objective reading of the Act, one must add qualifications. And the first qualification is clearly that there is no indication in the Act, that a lack of memory for whatever reason, as long as it's a genuine and bona fide lack of memory, is not a bar to amnesty. And so much the more I would argue to you, that must be the case, in view of the epilogue in the Interim Constitution, read together with the foreword in the TRC Act, which is quite clear that the legislature intended amnesty to be granted in the widest possible meaning of the word. And you are well aware of the AZAPO case, AZAPO vs STATE PRESIDENT, where His Lordship, then Constitutional Judge Mohammed, said exactly the same thing. If one takes that as a reading together, Chairperson, I submit that it justifies the submission that the mere fact that a man is unable to remember, is not by itself a bar to his receiving amnesty.
If I am right so far, then one has to put a qualification on that again, and that is to say that that lack of memory mustn't be manufactured, it must appear to the Committee to be a genuine lack of memory. Now it can be because by reason of the fact of post-traumatic stress syndrome, as you've heard here today in the case of both Hechter and Viktor, or it could be other factors, or it could be a combination, Chairperson, but you must be satisfied that it is genuine.
I want to submit to you, Chairperson, that in the case of Viktor, it was genuine. When he drew his amnesty application he told his attorney "I really can't remember, but I want to apply for amnesty for what I did wrong." And you would have noticed, Chairperson, that he refers to some 40 incidents and in spite of having said that in his amnesty application, today he can remember only five. And he's made an affidavit to tell you that, and I've referred you to Exhibit D. Now that is not the actions of a man who is not genuine in his attempt to remember. If you look at Exhibit D, he has made attempts at remembering an incident by virtue of something that stuck in his memory. In the one case he said he remembers in Mamelodi, that when they were on their way there it started pouring with rain and they were all sopping wet. That's something that stuck in his memory, and he now knows that he was involved in an incident in Mamelodi.
In this particular case, Chairperson, he seems to remember dogs barking, which has now been established to be corroborated, and a remembers a person looking through a window. Now in the normal course of events, those are not terribly important, but it is important to show here is a man who by two facts that he can remember, plus the fact that Coetser recalls that he was there, comes to you and says "I'm applying for amnesty because I am absolutely certain that this is one of the incidents in which I must have been involved."
Chairperson, the applicants - none of the applicants have anything to gain by hiding any of the facts which they might remember, from you, they only stand to gain by remember(sic) facts. And it is my submission to you that it stands their credibility in good stead that they did not come and attempt to fabricate evidence before you of what they remember, they were quite willing and courageous enough to testify that although they were advised that there may be a problem with full disclosure, they came to you and told you exactly what they remembered. And I'm talking about Hechter and about Mr Viktor. Chairperson, the matter of full disclosure I can't take much further than that. To summarise, the important point to remember is in terms of the Act, the mere loss of memory is not a bar to amnesty. And for that reason I would ask you to find that there was a full disclosure by Viktor in the present case.
Chairperson, there seems to have been some doubt cast upon how serious the conflict of the past was. I am not going to take up your time, the Amnesty Decisions are full of reference to that. The Human Rights Violations Committee heard evidence for weeks on end from all sides of the conflict, and it's quite clear that we were in a gruesome war. It's true that many people in this country didn't know about it, but that doesn't take away the fact that we were in a gruesome war where people were killed. And the question of proportionality in terms of a proper interpretation of Section 20, must be adjudicated upon against the background of that war. And what is the test that the Act places on proportionality? It is something that was done during the conflict of the past, directed against the other side. I'm just broadly speaking of the other side, the Act is more precise.
"Members or supporters of a known political organisation or liberation movement ..."
That is the context, Chairperson.
Now I find myself in disagreement with my learned friend, that the question of proportionality is a subjective test, because with respect, I believe that the submission should be that that is an object of test. What is true however, is that the question of political objective is a subjective test and that that may have relevance in regard to an adjudication on proportionality. That is true. But the Norgard Principles are applicable to political objective, not the way I read the law, vice versa.
So as far as political objective, Chairperson, is concerned, we say the test is subjective, but it is also in a sense objective. It's much like a ...(indistinct) man test, it's not entirely subjective, it can also be objective. And one knows that by a reading of (3) of Section 20. There are subjective elements but there are also objective elements. And the objective element is the proportionality. It is certainly for the Committee, objectively, to determine whether an act, omission or offence is so disproportionate to the purpose which it was intended for, that you can say, objectively this is disproportionate. The question is, is that the case here before you? And we would submit it isn't. We would submit, Chairperson, bearing in mind the conflict of the past, bearing in mind the well known fact that 1986 was the worst year as far as the conflict was concerned. There was a build-up since 1979, but it certainly reached a pinnacle in 1986.
Bearing in mind the fact that people's lives were at stake, bearing in mind the fact that the police considered it their duty and it was in fact their duty to maintain internal security, which includes the protection of the population, we say, Chairperson, that the intent of scarring somebody off, to commit acts of violence and sabotage and intimidation by placing a bomb at his home, can not be said to be so disproportionate to the aim that they wish to achieve, so as to refuse amnesty for that reason alone.
Now Chairperson, in that respect it is significant, with great respect, if one looks at page 58 of bundle 1, to what Oupa Masuku says about himself. And please bear in mind, Chairperson, and I'll ask you to draw an inference from this, that Oupa Masuku has been here, he's heard the allegations made by Hechter and he has chosen not to give evidence to contradict it. And I would ask you, Chairperson, to accept what Hechter has said has now been established by virtue of it not being contradicted.
If you look at paragraph 1 at page 58, a picture evolves that from 1977, this man, Oupa Masuku, became involved in what is termed "participated in a liberation struggle". And it is clear that this went on until 1979, and I'm asking you to draw an inference that in the middle of that paragraph where 1979 is referred to, it refers to an arrest by him, together with nine others - I'm sorry, 1980, not 1979, 1980, he was intercepted and arrested on his way to Swaziland -
"At or near Piet Retief we were 10"
And I want you to draw the inference, Chairperson, as a reasonable inference, that he was on his way out to receive armed training. For what other reason would that have been? And then over the page, Chairperson, it appears in paragraph 4, that during the inquest in 1986, resulting from this attack, he was again detained under the State of Emergency. The State of Emergency came in on the 12th of June 1986, you will recall, Chairperson. And then he says most of his life, he says in paragraph 5 -
"I have been an activist"
And then he explains why he says so.
Chairperson, but another significant fact that appears from this in our submission, is that since 1986, according to himself, apparently he didn't come into conflict with the law again. One would imagine if he had he would have mentioned it. And again we would ask you to draw an inference from that, and the inference is that the bomb scare worked. It worked in his case.
Chairperson, it only remains, unless there are matters which you wish me to deal with, with one other aspect and that is the issue of innocent bystanders. Now Chairperson, that is a topic that you have heard me debate with Mr Aboobaker Ismail at length, and my learned friend, Mr Trengove(?) as well - I don't want to rehash all of that, but we know of the Kabwe Conference in 1985, we know of the ANC decision, we know of the press statement that Mr Oliver Tambo made thereafter, to say that the time has come where the ANC cadres cannot shy away from targets merely because innocent bystanders might be affected. You have heard -we have all heard of many instances of incidents where members of the Security Forces went in to hit a target, particularly in a house, where innocent people were affected. We know that. We know that the only times on record up till now, where amnesties have been refused, were in cases where they knew or had to know for certain that there were little children in the house or people entirely innocent and they went ahead nonetheless. But in a genuine case of caught in the crossfire, as we submit this one is, even assuming that Esther Masuku was an innocent bystander, we would say, Chairperson, that it falls within the ambit of a war situation as explained by the ANC to the Human Rights Violations Committee, as explained in their written presentations. I believe it was at page 85 of the August 1996 presentation, where they dealt with Kabwe and the killing and injuring of innocent people.
Chairperson, let nothing that I am saying now be taken to be justification, all that I'm saying, Chairperson, is that this is what happens in a war, people get killed and injured, and perhaps more innocent people get killed and injured than the fighting people. But those are the facts of life.
Chairperson, as far as Mrs Esther Masuku is concerned however, we submit Chairperson, that - bearing in mind what is at page 98, and one would have expected that if it's untrue, that Mr Masuku would have come to the witness stand and denied it, and it was put by Commissioner Sandi, the second, the third paragraph -
"Mrs Esther (I can't read that, my page is clipped off) Masuku of Mashifane Street, and her sons Oupa, Thabo and Ndumisi - all political activists - were attacked about 1 a.m."
And Chairperson, with respect, one must bear in mind the circumstances in which the happened. The evidence on paper in bundle one is - Oupa Masuku slept in an outside room next to the stoep. Apparently the bomb, according to Crafford, must have been placed on the windowsill, or it may have been Dos Santos that said that, Chairperson, and I probably am referring to page 62 - yes, the bottom of page 62 he says - his finding is in his opinion a manufactured explosive was used -
"wat vermoedelik in die vensterbank van die sitkamer geplaas is en wat gedetoneer is."
And the reason why he finds that, Chairperson, is that he found what he calls shrapnel, both inside and outside the house. In fact, there was damage to the wall on the outside, which does appear to support Dos Santos' finding that the bomb was placed on the outside.
But the point I'm leading up to is this, that they heard a sound like an aerosol can going off, and we know, we've heard some evidence about this kind of thing, is that that was the fuse, the fuse makes a "shew" noise, and apparently that, or the footsteps or the dogs or a combination of all of those, and the crying out of Oupa, who called "Thambo, Thambo, Thambo", according to Simon's affidavit, brought three people into the lounge who wouldn't have been there under any other circumstances, they were already asleep, and that's where they got hurt, Chairperson. So on the facts as we know it from the Masukus, it was fortuitous that they were there at the moment when the bomb went off. And I want you to please bear that in mind, because it certainly does not indicate an intention to kill people in that house. And that is corroboration for both the evidence of Hechter and Viktor, that the prime - and as it turns out, of Coetser as well, as his evidence has turned out, that the prime reason for the attack was not the elimination of anybody.
Chairperson, we can spend a lot of time on these subjects which I've covered, but you did preface your invitation to argument by the qualification "short", I heard quite clearly. I'm ...(intervention)
MR MALAN: We're just not sure that you heard us, Mr Visser.
MR VISSER: I've already been - I was just going to say, in the view of Commissioner Malan I've probably exceeded my short time that you've allotted to me. If there's anything that you wish us to address, we would certainly do that. My attorney's just found the reference to the Kabwe Conference, it's not 85, it's page 51 and onwards, where a full statement about innocent civilians have been made, with which we have found ourselves in agreement because of the practicalities of a war situation. And Justice Motata who was sitting in that case, will probably remember we taking that point of view in not criticising the ANC because of that, all that we ask is don't criticise the applicants before you because of that. Thank you, Chairperson.
CHAIRPERSON: Thank you, Mr Visser, for having been short. Mr Lamey, would you also take the queue and be short?
MR LAMEY IN ARGUMENT: Thank you, Chairperson, I will be very brief.
Chairperson, my submission and my request to this Committee is that to place yourself in the position of the lower-ranking officers at the time, who had neither - who were not in a position to question orders - and this is confirmed also in submissions that have been made which you probably will find in the general background, Exhibit A, where the position of the lower-ranking security policemen is dealt with there. Chairperson, where they were not in a position to verify always information that led to a decision to attack or ...(end of side A of tape) ... or a targeted house. Chairperson, so as far as the factor of proportionality is concerned, that factor lies within the powers of the decision makers at the time. Now unfortunately Mr Coetser also came to this Committee in the hope that Mr Hechter or Mr Viktor, as he states in his political objective, would have been in the position to give more detail to the Committee, unfortunately they were not in the position to do so regarding the specific information that they had, the target selection that was made, precautionary measures etcetera. So to a large extent, Coetser was in the hands of his superiors on which he relied upon their judgement and their decisions and carried out orders in this regard.
Chairperson, that also being the position of the footsoldiers, if I can call them that, they also don't have the benefit of all the knowledge which we find in the general submissions, such as Exhibit A before this Committee, as well as other submissions like de Kock in his general background as to the broader political perspective. Chairperson, and as far as that could be taken in favour of also lower-ranking officers like Coetser, I would request you to do so.
Without unnecessarily ponder on this aspect, I just want to point out that in this submission of Gen van der Merwe, which is referred to by reference in Exhibit A, there is the statistics, and you will find that 1986 in comparison to all the other years, was one prominent years of political violence in the country.
Chairperson, my request is similar to the list that has been provided to you in the application of Viktor, that amnesty also be granted to Mr Coetser. Chairperson, in his written application he states -
"I apply for amnesty for conspiracy to murder, murder, attempted murder, arson, or any other unlawful deed which can be emanated from these facts."
More specifically I would wish to add here in my submission, malicious damage to property and also offences in terms of the Explosives Act, which is also referred to here in the application of Viktor.
ADV SANDI: Whilst you're dealing with offences, what about defeating the ends of justice, because he knew about this and he did not report it. He didn't do a thing, but he knew that a crime had been committed.
MR LAMEY: Chairperson yes, it may possibly also extend that far. He as a policeman strictly speaking - I didn't think of that for the moment, but strictly legally speaking as a policeman he should have been in a position to report unlawful acts by superiors. Chairperson, in that regard as far as that is concerned, that could also be a possible offence that could be formulated, Chairperson, but on the other hand there is no evidence that he had specific knowledge of the investigating team and Dos Santos, like Hechter perhaps who was involved with the investigations. We didn't deal with that in the evidence of Coetzer but being also - well there's no evidence by Coetzer that he was aware of an investigation done by some of his fellow colleagues at the Security Branch on the probabilities, being also an unrest sort of related type of offence that was committed, it could be argued that, on the probabilities, he must have foreseen also that some investigation would be done by the Security Branch and he didn't really do anything about that. Yes, Chairperson I would request that that then also be extended as far as he is concerned.
Chairperson I don't know whether there is anything else regarding his specific application, that you would like me to address you on. I think here is a case of, also in the case of Coetzer, a subjective understanding that what ultimately happened, well that he, well he testified that he foresaw a possibility that people could be killed in the process of using the explosive device. At some stage, either prior or after that, he learnt that Oupa Masuku was the specific activist here. The fact that a person died here, I've listened to the submissions of my learned friend, Mr Visser, I don't have anything to add thereto and I submit that that argument does have merit, but as far as the subjective belief of Mr Coetzer is concerned, I submit you must also take into consideration that he understood from that meeting in the office of Viktor, that people could be eliminated. Whether that was in fact so said, he's not certain today, but that was the subjective belief that he had at the time, Chairperson and that is why he made the connection in his amnesty application regarding this specific instant, also to the broader instruction that emanated from Viktor. The fact that Hechter himself foresaw also the possibility of death, Chairperson, also I think points out that as far as Coetzer is concerned, he had the implied, at least the implied authority to participate in this act, where it was foreseen that people could be killed during this attack.
As it pleases you Chairperson.
CHAIRPERSON: Thank you Mr Lamey. Mr Toefy.
MR VISSER: Mr Chairman, I'm finding myself in a personal difficulty the later it gets. I didn't anticipate that we would sit after 4 o'clock. Is there a reason why we can't just continue tomorrow?
CHAIRPERSON: It has just come to our attention that, because of the pre-hearing conference, matters were loaded because certain agreements were reached there that incidents would be dealt with speedily and we are running against schedule and I must apologise, but Mr Visser, if you are not going to make any further submissions or reply, I would release you.
MR VISSER: I would rather not run that risk. I'd then rather do my explanation elsewhere and stay, Chairperson.
MR TOEFY IN ARGUMENT: Mr Chairperson, the applicant - the Masuku family opposes the application for amnesty of all four applicants on the following basis. We oppose the application of Mr Cronje, Mr Hechter and Mr Viktor to the extent - in that they have not made full disclosure in terms of Section 20(1)(c) and we oppose the application of all four applicants on the basis that they do not, on the basis of Section 20(3)(f) in that the proportionality of the act was not warranted by the aims sought to be gained.
If I can just very briefly start with Mr Cronje. All that we have before us is this affidavit and as I said earlier, to my mind it appears as if an inference can be made from documents before us in the bundle, that Mr Cronje did in fact have personal knowledge of this particular incident and for him to make the statement in his paragraph 7 that:
"Ek bevestig dat ek geen kennis dra van die handelinge nie"
we find unacceptable, Mr Chairperson. If we look at pages 94 to 97, we'll see two documents that are drafted by himself and signed by himself which sets out the entire, which sets out the happenings on that night. I understand that these documents were drafted the day after the incident and I understand it may have been in the normal course of events that he in fact drafted these documents as part of his task, but for him to say that he doesn't have any knowledge of it, is very different from saying that he cannot remember.
A further point that I wish to draw to the Committee's attention, is that Mr Coetzer went to him and told him after the incident that: "I need to withdraw from these activities", based on the Masuku incident. Again a particular relation to the Masuku incident. Under those circumstances we find that he does have knowledge of these incidents and that his application should at least correspond to those allegations which he had made in these, or at least the points which he has made in the two documents that I draw the Committee's attention to and also besides these issues, besides the - based on the evidence that I've raised, we too still find that he, in any event, has not complied with providing relevant facts of the incident for which he is applying.
As far as Mr Hechter and Mr Viktor are concerned, with the non-disclosure of relevant facts, we accept that they make certain, or that Mr Viktor was able to remember certain issues, in fact two little issues of the incident, but again we find it to be inconceivable that those are the only two little factors of that incident that he's able to remember and we feel that he has not made full disclosure in that regard as well.
The exact same points are tendered in support of our opposition of Mr Hechter's application with regard to non-disclosure.
I think I just briefly now want to just talk to, if the Committee will allow me, talk to the inferences which Mr Visser has suggested that the Committee should make on various documents, especially with regard to the statement by Mr Masuku. The fact that he was arrested whilst on his way to Swaziland with 10 other people, it really is - it would really be a far stretch of the imagination for the Committee simply to accept that the reason why they were going there was simply to get military training. We don't know who those 10 people were, it could have been 10 children, it could have been 10 females who are not ordinarily going over the border for MK training, so on that basis I feel that for the Committee - I feel that the Committee should not make such an inference as suggested by Mr Visser.
The next point I wish to raise, which Mr Visser has raised, with regard to inferences is that after 1996, you hear nothing about Mr Masuku with regard to his run-in with the law and here I assume we're talking about the ordinary course of the law and not the law which, the actions of police officers which was really outside of the framework of the law, but Mr Chairperson, the fact that he was not apprehended again after that does not mean that he therefore ceased his activities. It does not mean that he has ceased his support for the struggle, that he has ceased to be a youth organiser. It simply means that the police did not apprehend him after that again. That's all that it means. It means that either they didn't seek to arrest them anymore because it was not helpful, based on his past record, or it means that they may have been embarking upon other actions against him, which was outside of the normal course of the law. So again, I find, or at least I suggest that an inference that it was successful, that the bomb was in fact successful, based on the inference that Mr Visser would have the Committee accept, is simply a non sequitur.
I wish now to move on to the issue of proportionality and here we oppose the application of all four applicants to the extent that they were involved in this act. Mr Cronje has accepted responsibility for it, for the actions of his "onder geskiktes", so our argument here would apply to him as well.
As can be gleaned from the cross-examination that was pitted against the applicants, it is our view that the act upon which Mr Hechter decided upon to embark and which was and where the other applicants were accomplices besides Mr Cronje, that act was simply disproportionate to the aim which he was seeking. He was seeking ...(intervention)
CHAIRPERSON: Should we, Mr Toefy, accept it as a submission, than you view, because I've got to make a decision.
MR TOEFY: I'm sorry, can the Chairperson please repeat?
CHAIRPERSON: I say when you said when it comes to proportionality it is your view, or you said actually: "It is our view", but I say don't tie my hands, I've got to make a decision, make submissions which I could decide upon.
MR TOEFY: I do apologise for the unfortunate phrasing. It is certainly our submission that the act was disproportionate to the aims that they sought to achieve. Mr Hechter was unable to say whether other means were sought, other means outside of the law. He was unable to say: "Yes, we did try to blow up his car, or we tried to slash him - yes, we did slash his tyres, yes we did try to take him down to the police station and "klap" him a bit". He was unable to ...(intervention)
CHAIRPERSON: No, no, no, he said, through Oupa Masuku's own admissions, when you read page 58, that he was detained several times, interrogated and it did not work, so I would say just that portion, I think your submission would be disproportionate to what you are saying.
MR TOEFY: Then just for clarification, then I understood him, when he was asked whether any lesser acts were taken against Mr Masuku, outside of the framework of the law, he was unable to confirm or deny that and the fact that he was unable to confirm or deny that, it certainly cannot be accepted that lesser steps outside the framework of the law were indeed taken against Mr Masuku.
MR MALAN: May I just ask you, could you explain to me, are you not blowing hot and cold if you argue on the non-disclosure and the inferences drawn by Mr Visser, that he was, that he did not cease his activities, that an inference, or that we might as well accept that he continued with all his activities, so if that is to be an inference or possible inference or a suggestion from your side, then it appears that even the bombing of the house as they did, did not have the necessary effect. What would you then argue in terms of proportionality?
MR TOEFY: Well that would then just simply also mean that, it will also indicate the futility of the act itself, that even if you went and bombed an activist's house, it didn't have the effect of stopping them, it had the effect of urging them on even more to oppose the State.
MR MALAN: I think with hindsight, the futility of everything is really clear but the question then was, what was the situation on the ground, so to speak? Amnesty is only given for illegal acts, not for what happened within the law, so really, if we talk proportionality, we should talk proportionality.
MR TOEFY: I'm sorry, I just lost my train a bit.
ADV SANDI: Sorry Mr Toefy.
MR MALAN: My apologies.
ADV SANDI: Sorry, I thought what Mr Malan is trying to say to you is that you are only succeeding to argue against yourself, because if you say in spite of the fact that this particular operation was taken against Mr Oupa Masuku, it still did not make him stop his activities. Now where does that put your argument in terms of proportionality? I hope I'm not misquoting you Mr Malan.
MR TOEFY: Well in terms of proportionality, I see it as two different issues. The fact that it didn't stop him, it just means that the act was completely misdirected. If you wanted it to stop - to have him intimidating or stop his activities, then to bomb his house is not going to achieve that and it didn't.
MR MALAN: Sorry, Mr Sandi. Could you - you never suggested, you will recall that at some stage I did suggest to the applicant the possibility of a petrol bomb instead of this stronger heavy utility that they used, but you never suggested an intermediate step to the applicant that I can now off-hand recall.
MR TOEFY: No, I did. I asked: "Did you take any other lesser acts that were less extreme than that against him?" and he was unable to confirm or deny that.
MR MALAN: You see the difficulty that I have with your argument and I'm not buying, provisionally at least, the inferences indicated by Mr Visser, that those inferences could be drawn. I'm not arguing - I'm not accepting that for the moment, I'm only saying - I remember now, you did say: "Why didn't you pull him and get him to the office and give him a few "Klaps"?" If your argument is that even the bombing wasn't successful, it was futile, why do you suggest then that they even should have taken a lesser action and does that not defeat your argument of proportionality? That's really my question.
MR TOEFY: But really, with respect, they didn't know that. They didn't know that lesser act or any act, which proportion of severity, which act with which proportion of severity would in fact be successful, they just - the submission is they simply went to a very grave proportion.
MR MALAN: I follow you now, thank you.
ADV SANDI: Just one thing Mr Toefy, for my own clarification, does the Act require that an applicant for amnesty demonstrates that there was a prospect of success of that particular action he had taken? I thought the Act simply requires that a perpetrator must say: "I committed S, Y, Z action which is a crime in law and my objective was A. B, C." Does it have to go beyond that inquiry? Do we have to look into the question whether that particular act could have assisted the applicant to achieve the stated objective? Do we want to go that far?
MR TOEFY: Well certainly, that's certainly why it wasn't part of our, the reasons why we are opposing the application, that it was not successful, because the Act doesn't require that but it does give an indication as to how misdirected or directed the act was. Were they applying their minds in a proper manner in seeking out the course of action which would attain the aims and objectives which they were seeking. It's simply for that reason. And if it didn't, then surely they were misdirected in their actions.
ADV SANDI: Anyway, I'll leave it at that.
CHAIRPERSON: You can recollect yourself, I think they must have derailed your train of thought, Mr Toefy.
MR TOEFY: I don't think the train is much longer. Just again one issues I want to raise that was raised by Mr Visser and that is that it was really fortuitous that those that were injured an killed in the "sitkamer" were there. Under the circumstances, when Mr Oupa Masuku called out "Thabo, Thabo, Thabo", it was under circumstances when he heard a hissing sound outside, he heard footsteps outside on the stoep and he may have been well aware that activists houses were being bombed and for him to call out to the family members, would have been an instinctive one, simply to protect yourself or do something, there's trouble around, but that really is of irrelevance, the fact that he called out people. We've heard here today that they placed the bomb there knowing full well that people would have gotten hurt, or could have gotten hurt, so they didn't know who was sitting on the other side of the window. The fact that there was no-one in the window, that no-one in the room at the time they placed the bomb, that was fortuitous. They didn't really know whether it was, the intention was to intimidate by placing a bomb there and whether that meant injuring someone, which wasn't really part of their main aim, then so be it. So the fact that they were called in there fortuitously, it is our submission that that is irrelevant. That will be the end of the closing argument.
CHAIRPERSON: Thank you Mr Toefy. Mr Steenkamp.
ADV STEENKAMP IN ARGUMENT: Chairperson, I have listened to all the arguments. The main argument, basically I think that my submission will be the main decision will have to be obviously whether or not full disclosure was made and secondly, whether or not proportionality or the test of proportionality was met. I've got nothing further to add to what my colleagues have said, except maybe to say that in my personal view I find it a bit difficult that, I would agree with my colleague here, that no other steps were taken to either prosecute or ...
CHAIRPERSON: Unfortunately they have taken some of the earphones, so could you just repeat?
ADV STEENKAMP: Sure Mr Chairman, I said my basic difficulty is and this stems from the testimony basically of Mr Viktor, why were no other steps taken to prevent the action of the Masuku's and specifically Mr Oupa Masuku? why could they not be prosecuted? Why could they not be arrested? Why could not normal legal action be taken? In that regard I would tend to agree with my Learned Colleague here. This still begs the answer, why was this never done? why was this immediate action taken? That's basically my argument, Mr Chairman, ...(indistinct) I would like to submit.
ADV SANDI: In other words you're trying to say, they threw a bomb there knowing very well that Mr Oupa Masuku was staying with some other people there? There's no evidence here that they, during the day or at any stage immediately before this operation, that they went there to check who was going to be there that night, they just came around and threw the bomb.
ADV STEENKAMP: No, no, my argument is basically, why couldn't they have taken, they had the powers, they had the manpower, they had the full information, full knowledge of the involvement of specifically Mr Oupa Masuku, why was no other legal, legitimate action taken, except this specific action, that's my only question.
MR MALAN: Mr Steenkamp, is the difficulty not that we have no evidence? We have a construction of evidence really turning around the bundle before us and specifically Mr Coetzer's evidence. We have no evidence that no other steps were taken, there might have been, that's what Mr Hechter is saying. " We might have pulled him in, I don't know, I simply don't know." There's no-one who can give us evidence on that question of yours.
ADV STEENKAMP: Thank you, Honourable Chairman. I don't know, I would tend to agree but my view still would be, the applicants are carrying the onus here and ...(indistinct) the victims, but I agree, there is no evidence on this point. Thanks.
CHAIRPERSON: The question raised in argument by Mr Visser was that if somebody has forgotten details and according to the Act, does that debar such a person to get amnesty?
ADV STEENKAMP: Honourable Chairman, there's clearly no requirement in the Act of that obviously and I would tend to agree with Mr Visser, if a proper legal case can be made out, that there's legitimate reason for a person not giving full details, that can clearly not be held against that specific individual, saying that not - I simply couldn't apply, or I can't remember the details on the pure facts of the incident because of whatever the reason may be, but looking at the matter hindsightedly, it's still a difficulty and that's, the whole question of full disclosure is then brought into the picture.
CHAIRPERSON: There's no hindsight here. They say: "Hey, because we were even traumatised and receiving medical attention up to today it's still difficult", they are not fabricating, as Mr Visser has put it, he says no, they don't even attempt that. They said: "Please, we thought others would probably assist here, but we can't be of much assistance than to say we were involved" and I say that is where he came with the argument that if you don't provide such detail which, if we look at detail closely, would say full disclosure, what actually happened, but as if we don't have that detail and now you somewhat agree with him and say no, the Act does not buy you with that lack of detail, but there is no full disclosure. I get muddled up, personally.
ADV STEENKAMP: Mr Chairman, I'm not taking the point before ...(indistinct), what I'm saying is, looking at what was actually happening on the ground at the time, the police, that's my respectful submission, could have done something else except only attacking the house of Masuku, they could have taken other legal action, but there is no evidence on that point.
MR MALAN: But Mr Steenkamp, if they had taken legal action, they wouldn't have been applicants, so the question is really, what other illegal action should they have taken?
ADV STEENKAMP: I think the only point I was trying to make was, my Learned Colleague here was trying to make, was it really necessary proportionately, what was happening at the time, for the applicants which they did.
CHAIRPERSON: What Mr Malan is putting to you, he says first, for us to look at the whole matter, the action of the person before us as an applicant must have come with an illegal action and if we say: "what is the illegal action here?" it is the attack on the house of Mr Oupa Masuku and a beloved relative losing his life in the process, hence they are before us, because had they taken all the necessary steps for instance, incarcerating, charge him under the terrorism Act, there wouldn't have been any illegal action, because don't look at just the three steps of amnesty, but the most important before an applicant comes before us, that action for which he applies, firstly must be illegal and it must have emanated from the conflict of the past. It must be illegal and emanated from the conflict of the past.
ADV STEENKAMP: Honourable Chairperson, I can't take it any further than that. Thanks.
CHAIRPERSON: Thank you, Mr Steenkamp. Mr Visser, I think you are the one, I wonder if you do have any reply to this?
MR VISSER IN REPLY: Chairperson, I didn't want to, but I'm compelled to make just two points. The one is, Chairperson, that it is no requirement of the Act for an applicant to show that there were less harsh methods which he could have used to attain the same objective. There is no such requirement. The requirement is that you have to objectively decide whether there was a proportionality between the act and the aim achieved. That's something entirely different and we've dealt with that.
ADV SANDI: But I thought that is implicit, if I may call it a requirement, proportionality, the issue of a lesser action to have taken in the circumstances, is that incorporated in this notion of proportionality? I thought it was implicit.
MR VISSER: Chairperson, but we don't argue with that. We say that you must view that against the background of a war situation, where the test changes, or is different from what we experience in normal society, as Commissioner Malan said, where you deal with legal actions and the question is, when does a legal action become illegal because you transgressed the rule of proportionality in that sense. No, no, we're not arguing with that, Chairperson. The point I'm making is that there is no requirement, that it must be shown that the aim achieved could have been achieved in some other way, because in a war there's no time to sit ...(intervention)
MR MALAN: Sorry, just to correct your wording, could not have been achieved in some other way. There's no obligation on the applicant to show that it could not have been achieved with lesser measures. That's really what you're arguing.
MR VISSER: I'm sorry. Well, could or could not, I'm not sure with the double negative, but you get the point, thank you Chairperson. And the other thing, Mr Chairman and this again is a long argument, but there is no onus of proof before you. The Act says you must be satisfied and we know what Attorney-General of the Transvaal vs Botha 1994(i) says. Chairperson, if you want these authorities, Mr Malan has them from pervious written arguments which we've handed in, Johannesburg Local Transportation Board vs David Morton and particularly that judgment which says that expressions of onus of proof is misleading and it says
"These considerations do no apply in proceedings before a local Board, or a Commission, which are not bound by the rules of judicial procedures"
You must be satisfied on the evidence, Chairperson, there's no onus. Thank you Chairperson.
CHAIRPERSON: And if you read our judgments, we always say: "We are satisfied" because we want to comply with the tenor of the Act.
MR MALAN: Or we are not satisfied.
CHAIRPERSON: Or we are not satisfied.
MR VISSER: We don't want to hear that.
CHAIRPERSON: This brings us to the end of the incident of Mr Oupa Masuku. I must apologise profusely that I did not beforehand advise counsel and everybody involved in these proceedings but I'm appreciative of the co-operation that has been given by all legal representatives. I must say you have given us so much to think about that at this juncture we reserve our decision. It shall be given before the process ends, that is the amnesty process, you will definitely get a decision and I must say to firstly Oupa Masuku, the Panel, and I'm speaking on behalf of the Panel, we are happy that you came forward to be relieved of what obtained a long time ago, approximately 14 years ago, that we might have opened wounds, but you can be rest assured that those wounds would be closed today, you would no longer have to go through that and that goes to your family as well and all other interested persons who came forwards. We thank you very much. And for your patience that I extended you to well after six. Thank you very much. And those who are involved from tomorrow, we start at nine thirty. Thank you. We adjourn for the day.
COMMITTEE ADJOURNS
