CHAIRPERSON: Ms Ngomane for the record, you approached us in chambers and said you no longer wish to lead evidence, but would go directly to argument, do you confirm that just for the completeness of our record?
MS NGOMANE: Indeed, Mr Chairperson.
CHAIRPERSON: Thank you very much, we are indebted to you. Mr Roux.
MR RICHARD: Chairperson, I do not intend to call any witnesses, but there are certain facts that I believe I would seek to put into the record by agreement, without calling Mr Brown, and I'm prepared to recite them right now. It's essentially the facts of that proposition that I put to Mr Hechter. In other words we discussed the matter and there are certain things that I believe the applicants admit.
CHAIRPERSON: With whom did you discuss that?
MR RICHARD: With Mr Roux.
CHAIRPERSON: Mr Roux, can you confirm this?
MR ROUX: Yes, indeed I can confirm it. I do not have all the specific facts, but I assume that my learned friend will not go beyond the parameters of our discussion, therefore I accept that what we have discussed he will indeed place on record, and this is in terms of our agreement.
CHAIRPERSON: Procedurally, how do we do this? Oh, you are doing it on behalf of the families, then we'd assume that you do that first.
MR RICHARD: I would assume that I would read out the list of the matters where I think there is agreement, and they would be put into the record. I haven't got the facilities of a typewriter here in Pretoria, otherwise I would have prepared a statement.
CHAIRPERSON: You may proceed to do so, Mr Richard.
MR RICHARD READS STATEMENT: Thank you, Chair.
"The matters that I would wish to put in subject to the confirmation by Mr Roux, for the applicants, is that Mr Brown was born in 1957, schooled at the Brits Indian High and thereafter proceeded to study a BA in Theology at the University of the Western Cape.
At the time of the incident he was the co-ordinator or the facilitator of the initiative to prevent the forced reallocation of the residents of Okasi, to Letlabile, who was not the Chairperson, others were. At the time of the incident he had previously been detained for periods of approximately four months each for two occasions by the Security Police, in terms of Section 29 of the then Internal Security Act and was detained a further four or five times after the incident.
The matter of his house and his parents' house may be described as follows:
His house was approximately 500 to 600 metres away from his parents' house and it is there that he had his resident.
The next point. On the night of the bomb attack on his parents' home he was sleeping at his parents' residence, together with eight other people. Those people being firstly, his parents, that's his mother and father, and other members of his family.
The next point regarding the others in the house is, that while indeed they knew that he was a political activist with a particular profile. None of the others were politically active or involved.
And the final point which I believe is unnecessary to recount, is that it was a bomb not a bottle of petrol."
Thank you, Chairperson, I am indebted.
CHAIRPERSON: Thank you, Mr Richard. Listening to you, I don't think Mr Roux would say you have exceeded the parameters of the agreement reached. Would I be correct in so surmising?
MR ROUX IN REPLY TO STATEMENT: Chairperson, yes and no. It went a little fast, I just want to go through these aspects briefly with regard to point 1, his school and university education. By nature of the situation no witnesses could have any knowledge about that, it is not a problem.
That he was a co-ordinator of the Brits Action Committee, or the Anti-Removal Campaign, that was the evidence in either event.
That he was detained twice for four months at a time, there is no problem with that.
That his home was approximately 500 to 600 metres away from his parental home, was in either event Pretorius' evidence if I recall correctly, and his personal home, the one that he owned was 500 to 600 metres away from his parental home.
That he was sleeping at his parent's home the evening of the incident along with seven to eight other persons, is something that nobody can really give any evidence about, so there isn't a problem with that.
That he was not politically active, I didn't hear the next point properly, we don't know whether or not he was truly politically active ...(intervention)
CHAIRPERSON: No he was, but no other person in the house was, other than him, the others were - if I may say they were "apolitical".
MR MALAN: Chair, with your permission, may I just understand this, is this by consent that you put this in on behalf of the family or is this facts agreed between the parties? What is it supposed to be?
MR RICHARD: Subject to my learned colleague confirming that he accepts that they are facts as agreed, they are facts as agreed.
MR MALAN: What he does not accept simply remains the position of your client.
MR RICHARD: The position of my client.
CHAIRPERSON: ...(indistinct - no microphone)
MR ROUX: Suffice to add to point six, my learned friend and I have discussed that nobody else in the house was politically active, with the exception of Mr Brown himself, and what can be added to this is that this was a fact that everybody in the house was thoroughly aware of. That is the section that I missed, and therefore I have no problem with that and in either event it was the evidence that it was a pentolite bomb and not, as in the case of the Ramakope incident, a petrol or fire bomb as such. That was indeed the evidence. Then I have no problems with these facts, in terms of the position of the family.
CHAIRPERSON: I think you have captured that succinctly.
Now I suppose in the order of things you have to start your argument.
MR ROUX: Thank you, Chairperson, just one moment please. I have requested earlier to submit a supplementary affidavit by Jan Hattingh Cronje. I believe that my attorney has already made that affidavit available to you. And then I also request leave to read this document into the record.
MR MALAN: I don't know if it is necessary, you have put this to us and discussed precisely what the two amendments are, we have the affidavit and it reaffirms what you have put to us already.
MR ROUX: Thank you, Chairperson.
MR MALAN: I think we can just allocate this exhibit a number. What would be the next number?
MR ROUX: I think, Chairperson, that it ought to be C.
CHAIRPERSON: Yes, that is correct, the previous exhibit was B. And why we made you read the first one into the record was because it was illegible.
MR ROUX: Yes, indeed.
CHAIRPERSON: And over and above, you had given us a background of what it would contain in any event. So it is on record.
MR ROUX IN ARGUMENT: Then I can confirm that that which is contained within the affidavit is indeed the broader general background to what it would contain, which I have already related to you.
Chairperson in brief, these applicants have been expected to make a full disclosure of relevant facts among others. Without referring to the Act, I submit that you can accept that all the prerequisites of this Act have been fulfilled, both the formal prerequisites and the prerequisites which have been stated in Section 20.
The opposition in this case, and I will restrict myself to that, were in agreement that there was no full disclosure of relevant facts. Pretorius disclosed all facts, I do not believe that there could be any other submission before you which would carry as much weight. Jubber has disclosed the facts within his knowledge thoroughly and so also the affidavits submitted by Cronje, which have been submitted by agreement. With regard to Hechter and van Vuuren, both of them as you will see in terms of the medical reports, among others, cannot recall the incident specifically. Van Vuuren recalls it on the basis of admissions made to him by Pretorius and can only recall snatches of it. It has already been argued on Tuesday during the Masuku matter by my learned friend, Mr Visser, whom I wish to depend upon in this regard, that the mere fact that somebody cannot recall, would certainly in the terms of the spirit of this legislation, not deprive him of the privilege of acquiring amnesty for that which he has come forward for and inasfar as it is possible for him, he has disclosed all relevant facts.
I also think that if we consult Section 20(1)(c), that all relevant facts have been disclosed. The emphasis here is on relevant facts and I think we can read in with this, as my learned friend Mr Visser has, and I associate myself with this, inasfar as it is within their knowledge and recollection, because logic dictates that this incident took place almost 15 years ago and these persons acted bona fide on the basis of information given by persons who were involved in a minor number of matters and have taken this information inasfar as it could be of application to them, and because the modus operandi operated in a certain fashion and there were only specific persons who were members of this task force, it follows then that it could be nobody other than them. And this is with respect, with regard to van Vuuren and Hechter specifically.
Therefore I submit that there has been a full disclosure of all relevant facts within the possibility and the knowledge of the applicants, especially when taking into account that the memory does not function that well 15 years after the fact. I myself cannot even recall what I did 15 years ago in standard six, and as one ages one's medical history proves that one forgets so much easier.
This brings me to one other aspect and that is the so-called innocent bystander, the death of Joyce Modimeng. The evidence indicated, particularly that of Hechter, and the others also expressed themselves partially regarding this, that there was a situation of warfare and that there was never any action within the normal parameters of the law. On the contrary, action was taken unlawfully and there were serious actions which were required for activists who were gravely involved in these activities.
The specific targets were strangely enough persons who were asleep in their homes or in the home of their parents, such as Brown. In other words the information provided by the informers was very accurate. One of the intimidation techniques was stated by the witnesses, and this was to intimidate the parents along with the subject, to terrorise the community, so that they would know that such actions executed by these subjects, would not be tolerated. And unfortunately in a situation of warfare, innocent people die. I can accept that the possibility exists that the information given by informers could not have been correct and that Joyce Modimeng possibly did not belong to the women's movements. However, all four witnesses were in agreement, or at least all the persons who worked directly with it, van Vuuren and Jubber for example, agreed that various informers stated that she was politically active, as it is reflected in the files, but she was not the target. If she then died as an innocent bystander, then it was due to the situation of warfare. And in this regard ...(intervention)
MR MALAN: I beg your pardon, would you concede that it is not relevant whether or not she was politically active, given the background of who the target was?
MR ROUX: Precisely. That is why if it is argued that she was an innocent person, I would concede this because she wasn't the target and that was not the evidence.
With regard to the specific reference to the innocent bystander - if you will just grant me one moment, without the Committee being to the decisions made by other Amnesty Committees during other hearings, I would like to quote this English extract to you, and I think this is something which encapsulates the definition of an innocent bystander in all other interpretations -
"However, where innocent people are concerned, it is submitted that such casualties are sometimes justified in a war situation, especially in the case of bombings. The killing of children were considered justified in cross-border raids, and by the ANC with reference to the Church Street bombings and other attacks, also reflected in the ANC's second statement to the TRC, where the deaths of women and children are documented. Reference should furthermore be made to amnesty given to the murderers of Amy Biehl, the St James Massacre, the Heidelberg Tavern and Brian Mitchell."
All of you are aware to the facts pertaining to these matters, and without using the English saying "tit-for-tat", where the ANC did this it ought to be admissible in another case, the specific circumstances which fell subjectively within the state of mind of these members of the task force and the persons who carried out the instructions, for example Constable Pretorius at that stage, should be considered that a specific target was identified, that a specific attack was launched by means of pentolite or otherwise by means of petrol bombs and that with one of these three cases an innocent person was killed. It is clear that with regard to this task force there was not a general action which led to the deaths of various innocent persons. And there was evidence to the effect that with all three occasions the actions led to success because these persons' homes were never again attacked, they were not again arrested, at least not that we are aware of, and as Hechter testified, he never again went to Brits to intimidate these same persons or for example, more seriously, to eliminate them.
In other words, I submit that all four the applicants be granted amnesty for the offences. And furthermore I submit with respect - I think that in the case of Pretorius I have already listed the offences and I will submit that this ought to be the list. If I can be of assistance to you in terms of your discretion - allow me to trace it momentarily, that the list of offences ought to include murder, attempted murder, defeating the ends of justice, actions in contravention with the Explosives Act, Act 26/56, arson, purposeful damage to property, and any other criminal or delictual accountability which may emanate from the facts.
Unless there is anything else specifically that you would like to hear me on, this is my argument. As it pleases you.
CHAIRPERSON: Thank you, Mr Roux. Mr Richard, will you start.
MR RICHARD IN ARGUMENT: As the Committee pleases.
When considering the application and who should certainly and who may be not so certainly not get amnesty, I start with the first applicant, Mr van Vuuren. His imposition is curious, he can't remember what he did or did not do and the third applicant, Mr Pretorius, on whom he depends to prompt his memory, as was conceded during the course of evidence, also did not put him at the scene of the crime.
Now my first submission on him, Mr van Vuuren, is that his evidence can be put no higher than speculative. We really and truly have no idea for a fact, what he did not or did do. He claims that because he was reminded he was associated as a matter of probability. I don't know where that leaves any tribunal or body required to make a decision on fact, there are no facts, and from my perception of the matter I don't see how any finding can be made about anything that he says. In fact, to me it would be offensive to logic to say that anything has been established regarding his involvement in the matter, and I argue that his application should simply be dismissed for want of any evidence of any cogent value at all.
MR MALAN: Just before you proceed, if you're moving onto any of the others, is your argument that whatever evidence is put before the Committee, has to come from the applicant in person? Or if you look at the Act, would it not be possible to put whatever evidence is available before the Committee, through other sources.
CHAIRPERSON: And before you respond, we're looking at this though there is viva voce evidence in this respect, that even in ordinary applications or matters brought before Court, that another person can give evidence that he knows about that more than the litigant himself, could that be dismissed and say he bears no knowledge of what he seeks?
MR RICHARD: Chairperson, it's perfectly competent to prove a matter through evidence through other sources than the applicant or litigant, him or herself. However in van Vuuren's case, that's applicant number 1, he depends on Mr Pretorius' evidence and at the point when Mr Pretorius was asked what he knew about van Vuuren's cross-involvement my note was clear, he could not confirm. So then the next question is Hechter, what does he say? Hechter ...(intervention)
ADV SANDI: Sorry Mr Richard, just before you go on to Hechter. Whilst you're talking about van Vuuren, should we not perhaps try here and take a closer look at his evidence, where he says he was involved in incidents of this nature which he estimates were about 200 to 300, and the pattern is generally the same in all these incidents? Shouldn't we try and put the emphasis here on the context? There are many other incidents which are similar to the ones that we are now considering, evidence in respect of - similar, very similar. Wouldn't that be a bit of an artificial approach to say he has not put himself in the scene? He says "I must have been there if Pretorius says that I must have been there, I must have been involved in many of those operations which are similar to what Pretorius says"?
MR RICHARD: Chairperson, his evidence was to use the legal evidential tag, that he had committed many acts constituting similar facts.
MR MALAN: Including similar acts in the Brits/Okasi area.
MR RICHARD: Quite correct.
MR MALAN: And we have no evidence of any other such acts ever performed in Okasi/Brits area except the three.
MR RICHARD: However, he then concedes that he has no knowledge of the particular incident. The question about similar fact evidence is whether its import is such that its relevance should be considered that it's, as with circumstantial evidence, so overwhelming so as to persuade one that it does have a persuasive value. His statement if one analyses it "I did many such things, but I don't remember this one, others might have done it without me", it's certainly not direct to the point that he was involved. In fact, we're left with a completely open question as to whether he was or was not involved.
The evidence of his co-applicants doesn't prove or disprove that he was or wasn't, and his assumption must be left as a mere assumption in my submission. And as an evidential test, I don't believe it's competent for a fact-finding body to take that evidence into account in support of substantive relief of the nature that he applies for.
Then one turns to the second applicant ...(intervention)
MR MALAN: May I just ask this last question. Is the contention that he's lying about his non-remembrance? Because that was never put to him.
MR RICHARD: I have not said that he's lying or not lying, I'm simply saying that he's non-remembrance is such as to leave the Committee in the position that it has not direct evidence except his admission as to similar facts upon which to associate him with the act, and I submit that it is insufficient.
ADV SANDI: Once again attempting to take a closer examination of the evidence, is there any evidence before us that those people who say "if so and so says I was involved, so that must be true", is there any evidence to the contrary?
MR RICHARD: There's no evidence one way or the other, that is the argument.
ADV SANDI: Do you agree that no person can implicate himself or allow himself to be implicated unless he's inside?
MR RICHARD: If a person implicates himself he's got to do it coherently and cogently, and in this particular situation we're left with an implication which is conjectural.
ADV SANDI: We're not to examine the context, the factual context in respect of which this person is implicating himself? What is the context?
MR RICHARD: The context here today is very, very simple. There was certainly in my learned colleague's matter, a reasonable fear of a murder charge and in the particular matter here, of attempted murder. The Act entitles him to amnesty which pre-empts that. So the motive to implicate himself and pre-empt an argument in the future, is quite plain, so there's every reason to implicate himself and claim the benefit of the amnesty if possible. And that is the context in which he gives evidence today.
MR MALAN: I don't want to really take this to extremes, but if that is your contention that he could be prosecuted and convicted, why take the point on the basis that we can't be satisfied that he was indeed present? Because he cannot be convicted if not found to have been present.
MR RICHARD: There may be other evidence at some other point in time, far more coherent than what is here, that may implicate him. If there is such evidence, my submission is that the amnesty is not a right, it's a relief which an applicant has to claim and prove and the onus is on the applicant to claim it and to establish ...(intervention)
MR MALAN: No, that's not correct, there is no onus on anyone, we simply have to satisfy ourselves. - one way or another.
MR RICHARD: The Committee indeed has to satisfy itself on evidence and my argument in the case of Mr van Vuuren is that we are left with nothing on which to satisfy ...(intervention)
MR MALAN: You may proceed, thank you.
MR RICHARD: The next applicant, Mr Robert Leslie Jubber, it's difficult to identify precisely what he is applying for amnesty for, on the facts outlined by him. The facts which might or might not constitute an offence or a delict, are that he knew that an act had taken place in his jurisdiction and did not properly investigate and report it. That leaves him exposed on a crime of defeating the ends of justice. Beyond that I don't believe that he has established facts or circumstances establishing any other potential prejudice to himself, and provided his application is for an amnesty which extends only to defeating the ends of justice, there is no opposition to his application for amnesty.
Then the next particular applicant that I propose to deal with is Mr Jan Hattingh Cronje, the fifth applicant. The facts that we have before us is that he gave an order. We have his untested affidavits corroborating this fact. However, due to his ill health, there has been no examination as to what circumstances, information, information of the context of the time that he acted on in making his decisions to give these orders.
Now it leaves us in a situation that we know precious little about what he did or didn't do or what he knew at the time or did not know, and I believe that while it might be unfortunate that it's ill health that prevents him from being cross-examined, the fact that he is not cross-examined also means that there's no evidence upon which a Committee could be satisfied that he's entitled to the relief that he begs so carefully in his affidavits and supplementary papers thereto. Ultimately, Mr Cronje is the responsible person and the person who had the particular duty of being aware and making decisions on coherent facts with which he was seized at the time. We know from him nothing at all. And I believe that if the test is that there should be information and evidence upon which the Committee should be satisfied, I don't believe that there is anything which could satisfy Mr Cronje's application.
That leaves the next category and that's Mr Hechter. Now in relation to Mr Hechter's application and in relation to Mr Pretorius' application, the aspect that needs to be concentrated on, as is it is the essence of the objection to the amnesty in their cases, is proportionality.
Now I have searched carefully through the various amnesty decisions, to see whether the applicability of what are called the Norgard Principles, has ever been properly argued and despite many hours of searching I can find no evidence that they have. Now while I'm mindful of the need for the Committees to be consistent in their decisions, it is also relevant to point out that the stare decisis rule does not apply from Committee to Committee and no one Committee is bound by a decision of another Committee. How the Norgard Principles came to be incorporated as a matter of law into the Act, if the Committee wishes I can submit a written document before Monday, it would be no difficulty to me ...(intervention)
MR MALAN: That would certainly not be necessary, we really have extensive research and information on this and if you need to access our library archives, you're welcome to do so.
MR RICHARD: Thank you, I will not proceed on that narrative, through the Pretoria Minutes and ... However, what I will refer to is a 1996 article written by Prof Jeremy Sarkin(?) of the University of Western Cape, and at a footnote he encapsulates what they say, quite shortly. And I think since his words are probably better than mine, I will use his
"The principles require proportionality between the crime and the political motivation for committing it, in order for the crime to be regarded as political."
Now as in a matter decided by Prof C A Norgard in the Namibian situation, I don't think one need to particularly argue that the acts in this particular matter were political or made pursuant to an order and so forth, but one brings to mind what I call the Namibian Car Park case.
The facts of that case were that a car bomb which caused a number of million rands worth of damage to the car park, was exploded somewhere between nine and ten o'clock at night. The car park was a civilian installation. There Prof Norgard decided that as there was still the contingent possibility of civilians - and that's where it becomes relevant, being injured, the particular operative who exploded that car park should not be given the benefit of the indemnity provided for in the Namibian situation.
In this situation we have the unabashed admission that a bomb was exploded in front of Mr Leonard Brown's parents' house, with the intention of intimidating, and if I used the words put in my cross-examination, "terrorising" persons who were not activists, into not supporting activists who so happened to be in the particular situation, their son, Mr Brown.
Now there is no test outside South Africa which justifies attacks on civilians, particularly attacks which are intended to terrorise - and that is the admission under cross-examination, civilians into compliance with either party's wishes in a conflict. That indeed would be a serious and fundamental breach of the Geneva Convention. And again if written argument on the interpretations are needed, I'm quite happy to supply it.
Now we then ...(intervention)
CHAIRPERSON: But shouldn't we look at this, and I'm particularly here looking at the Act and Section 20(3)(d)
"the objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent"
Taking the submission you made on behalf of the Brown family, that Mr Brown himself, Leonard Brown, was an activist politically, that if we look at (d), that it was directed at him, and quite rightly you say there is no other source where we can suck some information as regards innocent bystanders, but wouldn't this, when you look at (d) that "directed at a political opponent", and the evidence before us is that the target was Mr Leonard Brown ...
MR RICHARD: I start with what my learned colleague described as semantics. In this regard I believe that Mr Pretorius was patently dishonest and untruthful. There is a huge difference between an activist, his own home and his parents' home where there are innocent people residing. That evidence cannot be accepted as bona fide or honest. Indeed while under cross-examination, Mr Pretorius' counsel had to rescue to him by beginning argument at that juncture, and from that I think a most sinister inference must be drawn against Mr Pretorius and the evidence given by Mr Pretorius. It was indeed patent that at the time he was giving evidence he was taken by surprise by the distinction, and I don't think it can be conveniently dismissed as semantic.
The second point is that yes, it might be legitimate to attack an opponent, but is it legitimate to attack an opponent in such a manner whereby private property, unconnected with the opponent except by blood relationships, as is normally the case in most conflicts, and other people may as a matter of probability be injured. I believe in a conventional conflict any aggressor who behaved in such a manner, would be guilty of a serious breach of the ...(intervention)
CHAIRPERSON: The sub-section goes further - if I may just interrupt you there, I stop when it comes to a political opponent, and it goes further and says
"or State property or personnel or against private property or individuals"
MR RICHARD: I have the section before me Chairperson, but in this particular matter, the attack was not against Mr Brown's property, it was against his parents' property.
MR MALAN: Is it not common cause, also from your part, that the attack was against Mr Brown, that he was the first target, that he was the activist? That's all the evidence before us. It's also read into the record again by your last contribution, and if you weigh proportionality, that would certainly not apply - I mean that's not been your argument, because you're arguing about his family. It seems that you're quite happy that the proportionality argument does not come into play where it concerns a potential conviction on attempted murder on Mr Brown. Is that how we are to read you?
MR RICHARD: Chairperson, we've all been party to many arguments where whether it was the freedom movements or the Security Forces, and it can be accepted that if there was an attack on a local police constable or a particular cell of MK, that is legitimate within the words of the Act. However, where I am distinguishing it is where that attack involves an attack which has, as I used the words earlier today, collateral consequences, when does that reach the line? I believe, and my submission is that an attack on a house which is not the residence of the activist, which will involve putting jeopardy to, - to use the word that I'm certain my learned colleague for the other victims will use, innocent bystanders, cannot be regarded as proportional, it transgresses. It is consistent with Prof C A Norgard's ...(intervention)
MR MALAN: I'm sorry, I'm not sure whether you understand me or not understand me. Amnesty is not a blanket amnesty on all the facts, amnesty can be granted with relation to some offences and refused on others, on the same set of facts, as we've had in the case in point here this week where amnesty was refused, where the woman was killed, this Mamasela incident which we dealt with just before this and where that's not pursued, but it's the same incident. So why could - and again with all respect, you've said that on the obstruction of justice that Jubber could be found guilty of, you guess there wouldn't be an objection in terms of amnesty granted for that. So why not partial grants and therefore - but it's really a question, you are arguing proportionality but it can't be an open proportionality, certainly it must be relating the offence to the objective sought, then when it concerns Mr Brown - and this is the question, are you still arguing that a bomb used to scare off or intimidate Mr Brown, would be disproportional - the method of using the bomb would be disproportional to the objective of intimidating Mr Brown? I'll leave it at that.
MR RICHARD: I'm going to give in reply, a number of alternatives. The quick one is it depends where Mr Brown is. I will put ...(intervention)
MR MALAN: Well if he's where, exactly where they're seeking him and find him. And that's established.
MR RICHARD: For the purposes of the argument, if hypothetically Mr Brown had been in a crowded night-club, would it have been legitimate to blow up the crowded night-club and kill a number of patrons, so as to get him and terrorise him? And if I swing he pendulum to the facts of this case, Mr Brown now is in his parental home with other people who far outnumber him in number, is it legitimate to bomb him in that particular situation? The next alternative flowing from the point made - however I have to hear what application is being made in the light of the argument by the applicants, there is the attempted murder of the inhabitants of Mr Brown's residence, there clearly amnesty is opposed, there is the damage to the property which did not belong to Mr Brown, there clearly amnesty is opposed, that is the differential test, but I still go to the point that it depends on where Mr Brown so happens to be, as to whether the attack can be justified in terms of the proportionality.
MR MALAN: Thank you.
ADV SANDI: Just for my own clarity. Should I understand you to say that amnesty is not really being opposed in respect of the attempted murder of Leonard Brown, the activist, but the contrary prevails in respect of those people who are not politically involved? On the point of proportionality as you've argued?
MR RICHARD: What is being argued in the first alternative is that the attempted murder of Mr Brown while in those particular circumstances that particular night, where he was surrounded by others who were not involved, was not permissible and therefore disproportionate. However, the facts of the matter aren't that he was a lone target or associated with other activists and therefore if that had been the situation, the argument might be different.
The second alternative is that in any case, on the facts outlined here, the bombing was of his parents' house and that's opposed, that act should be opposed. If facts establishing an offence or delict, I don't believe amnesty may be granted for the fact of placing a pentolite bomb outside Mr Brown senior's house.
MR MALAN: May I not try to go short, it's just crossing my mind for the moment, we've been arguing in terms of specific offences, if we go back to the evidence, the evidence is that there was an attempt to intimidate, scare off Mr Brown, which would also have an effect on the community and those surrounding him, where a bomb was placed, where there was no death flowing from that activity and the mission accomplished. Arguing on the basis of specific offences, we're now arguing on murder and attempted murder on the basis of dolus eventualis, aren't we perhaps missing the point? Shouldn't we simply be looking at the facts and weighing the objective against what really happened?
MR RICHARD: What really happened, to put it in that context, was a pentolite bomb which we hear is a powerful contraption, was exploded outside Mr Brown senior's house. That is the act. Inside that house there was at the time, Mr Brown and his parents and other members of his family who were not political. Now the objective and motive behind that was, per Mr Hechter, to terrorise both Mr Brown and those who might be giving him sanctuary, from continuing to do either.
MR MALAN: The objective was not to kill or injure, but to terrorise, accepting the possibility of injury or death, in other words the dolus eventualis approach. But the objective was never to kill or injure, in terms of the evidence before us, except on the basis of dolus eventualis.
MR RICHARD: To put it in the words of the witnesses, it was an acceptable consequence of what was happening and foreseen as a ...(intervention)
MR MALAN: ...(indistinct - no microphone)
MR RICHARD: Now in this particular incident, as ...(indistinct) my learned colleagues, there were no deaths or injury, however the attempt which would be with the criminal charge, if it were formulated in those terms, would still stand. My argument remains then that that act, because of the accepted and therefore foreseen potential consequences, even though it did not have those results, as in the car park case in Namibia, falls outside the tests of proportionality, it falls foul.
ADV SANDI: Sorry, Mr Richard. The fact that no person was killed or injured, isn't that an important consideration in this matter in view of Section 20(3) of the Act, where it talks about the gravity of the act committed by the perpetrator?
MR RICHARD: At the time the fuse to the bomb was lit, a powerful explosive device was put outside a residential dwelling, to me that must be considered a serious act in the extreme. The applicants openly admit that they foresaw events of deaths and injury, to ...(intervention)
MR MALAN: No, they foresaw the possibility thereof, they did not foresee the reality thereof.
MR RICHARD: We have two cases before the Committee this evening, one where death ensued from a lesser device and one where it didn't ensue from a more serious device, which was reserved ...(intervention)
MR MALAN: No, I'm only correcting you in terms of the evidence. The evidence was never that they foresaw specific injuries indeed occurring, but they foresaw the possibilities and they carried on regardless. That was the evidence. There's a major difference, because the one is a specific direct objective, you see certain realities following and that's what you're pursuing now, as opposed to you have another objective, you do foresee certain potential eventuations, but nevertheless you carry on regardless at aiming at your first objective.
MR RICHARD: And I would submit, I don't dispute anything that has been said but I add on to it in a cavalier and reckless manner as to ...(intervention)
MR MALAN: And that was the evidence.
MR RICHARD: And I did not - I don't recall, but unfortunately when talking I don't necessarily remember the exact words that I used two minutes ago.
Now the question then before the Committee, is whether what constitutes an act of terror, is proportionate within the phraseology of the Act. I leave my argument rest at that point. I will not argue down the line of what is terror and what isn't in accordance with international law, I'm sure we're all familiar with that.
Now Mr Pretorius, ex his answers to cross-examination, while again he did not have direct knowledge of what was intended, it was patently obvious that he could infer that various most unpleasant events were going to happen, which were directed at people within the residential area of Okasi. For him to separate himself on the basis of legitimate orders, he conceded as far as I recall, that he knew the operation was not legal, despite it being done under orders. He foresaw what, as a matter of probability, was going to happen and therefore on the doctrines of common purpose, had joined in the act which was being perpetrated by Mr Hechter and those who had come with him from Pretoria.
MR MALAN: Isn't that common cause and isn't that the basis of the application?
MR RICHARD: My argument then extends, that if the Committee holds that my argument on proportionality are good and that Mr Hechter should fail, so should Mr Pretorius' application fail with it. He can never be stronger or weaker than what he as a matter of probability foresaw.
ADV SANDI: What about the hierarchy of authority, when you look at Hechter and Pretorius? Pretorius I think said it a number of times, that he was just carrying out orders, he was not part of the process of deciding which target is to be attacked.
MR RICHARD: As I recall the evidence, the effect of the request for support ex-Cronje, through number 2, that's Jubber, was to place Pretorius under the command of Hechter on that particular night. He was told by his Commander, that's Jubber, to go to Pretoria to meet with Hechter and then to give Hechter the support and assistance that Hechter wanted. As a Constable dealing with a Lieutenant, there are a number of ranks in-between, certainly the Constable would be expected to comply with lawful orders.
ADV SANDI: Even unlawful orders in many of these cases.
MR RICHARD: I used the word "lawful orders" with specific consequences in mind to my argument.
MR MALAN: I think you can leave this where it is, we all know that is not about lawful orders, so - sorry, to bring you back to your line of argument before I interrupted you, when you talked about the basis of the application you said your argument was about proportionality, if you would come back to the proportionality argument, but have you not dealt on proportionality with both Hechter and Pretorius?
MR RICHARD: Chair, I believe I have, I've exhausted the point.
MR MALAN: Is there anything else that you want to argue with us?
MR RICHARD: Nothing further, subject to my client's instructions. My client confirms that I may conclude.
MR MALAN: Thank you.
CHAIRPERSON: Thank you, Mr Richards. Ms Ngomane.
MS NGOMANE IN ARGUMENT: Thank you, Mr Chairperson.
I'll start with the matter of Celo Ramakope. Since it's common cause in this amnesty that he's not opposing amnesty being granted, you have a declaration in those bundles which he made, subject to the submission that there was no disclosure in relation to Section 20(1)(c), where full disclosure was not made, Mr Chairperson. I will just start with the last applicant, that is Jacques Hechter. His evidence was not sufficient or enough, Mr Chairperson, the only basis why Mr Hechter came to this Commission or to this Committee was that his name was also mentioned by the other applicant, which is Pretorius, he only came here to this Committee to say that "just because my name is mentioned, then I must have been there", which is not enough if you look at the requirements of Section 20(1)(c). The Act doesn't say that amnesty should be granted because an applicant made an application to such, it doesn't say that. If you look at the preamble - I'm sure you are acquainted with it by now, Mr Chairperson, ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone)
MS NGOMANE: Thank you.
CHAIRPERSON: ...(indistinct - no microphone)
MS NGOMANE: Mr Chairperson, what I'm getting at is that this Act which was made by parliament, if amnesty will be granted in relation to the matters of Celo Ramakope and David Modimeng, then it's questionable, it should be taken for review or appeal. But before I come to that, Mr Chairperson, the ...(intervention)
CHAIRPERSON: ...(indistinct) a prelude to your argument by that.
MS NGOMANE: I'm coming to that, Mr Chairperson.
CHAIRPERSON: Because you immediately give me the jitters that you are putting a gun onto my head and I don't have time to think about this.
MS NGOMANE: Not yet, Mr Chairperson. Let me come back to the evidence. I was relying on the last applicant, that is Jacques Hechter, he came here because his name was mentioned - Pretorius went to his attorneys to recall what had happened in Okasi during 1986, Mr Chairperson, just because his name was mentioned, he and the other applicants deem it fit to come to this Committee to say "please grant us amnesty because our names have been mentioned there", they don't have personal knowledge, Mr Chairperson, as far as I am concerned. It would be ridiculous for a person who doesn't even have a knowledge of what had happened in a particular year, to come here and say "yes, they have mentioned my name, I could have been there." That is the evidence that is before this Committee.
ADV SANDI: Sorry, is there anything suggesting that he was not there, any indication to that effect?
MS NGOMANE: Mr Chairperson, if you look at the other applications which Mr Hechter made, he was granted amnesty but in this particular case he doesn't recall, he doesn't have knowledge. In those other cases, if you look at that decision, he didn't have - he said his memory was weak, he couldn't remember, he cannot recall because he's suffering from post-traumatic stress. What about the victim, what do you say to the victim? Should the victim suffer because the applicant cannot recall, and should the victim suffer because the Committee feels that he has disclosed ...(intervention)
ADV SANDI: What is it - if I can ask, what is it that he has not disclosed? Is there any specific thing he has withheld from the Committee, save to say that "if that is what Pretorius says, I accept it, it must be true, I must have been there because I was involved in so many of these things that I cannot remember each and every individual specific incident"?
MS NGOMANE: Mr Chairperson, the applicant was here today, he gave testimony, I cross-examined him on points, he's saying he's suffering from post-traumatic stress and I think that is a factor that has to be taken into account, Mr Chairperson. His evidence cannot be relied on by this Committee, due to the fact that he doesn't have personal knowledge. The fact that he's here today is because his name was mentioned by Pretorius. He wouldn't have come here if it wasn't that case.
He goes on to say that he targeted those activities, like Mr Celo Ramakope - I'm still dealing with the Celo Ramakope case, Mr Chairperson - he said he used petrol bombs in those cases where he felt that this activist was not a threat or a so-called threat to the ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone)
MS NGOMANE: Thank you for that, Mr Chairperson. He would use a petrol bomb in those cases. He goes on to say that "I can't recall". And we should not forget that he is suffering from a post-traumatic stress and he came to this Commission to bind himself and say "yes, I might have been there". He's been involved, we should not forget this fact that he has been involved in many incidents, in many incidents, Mr Chairperson, his evidence could not be relied on by this Committee. If this Committee could find that indeed he was involved in this particular act, the Celo Ramakope and the David Modimeng, then amnesty should not be granted.
MR MALAN: May I just ask you, what is the contention of the opposition, that he was involved or that he was not involved?
MS NGOMANE: The victims - the women have been here. If they knew whether he was involved, the victims came to this Commission to find the truth. We want the truth, nothing else, Mr Chairperson, it's up to the Committee to decide whether he was there. We came here to cross-examine Mr Hechter, to find out whether he was there, but we should not forget that he is suffering from a post-traumatic stress and he said he cannot recall. We should not forget that, Mr Chairperson.
MR MALAN: We have the evidence of Pretorius before us, where he gave evidence that he was indeed involved, is that evidence to be accepted as far as your client is concerned, or should we not accept that evidence of Pretorius?
MS NGOMANE: Mr Chairperson, I'm still coming to Pretorius, I'm still ...(intervention)
MR MALAN: Oh no, I'm talking about Pretorius, I'm talking about Hechter being there or not being there. That's your question, you're saying he hasn't convinced us that he had been there because he has no knowledge. I'm just asking you, we have other evidence that he indeed was involved.
MS NGOMANE: But that evidence, Mr Chairperson, could not be relied on because Pretorius cannot be believed, his evidence should not be accepted by this Committee.
MR MALAN: So the contention is that Pretorius is lying when he says Hechter was also present.
ADV SANDI: And van Vuuren also, I thought he said Hechter was present, he must have been present. If he van Vuuren was there, Hechter must have been present as well and even Mamasela.
MS NGOMANE: I think that I will leave this argument to the Committee to decide whether he - if Pretorius says, we will accept that Pretorius said he remembers Hechter more than van Vuuren, van Vuuren should not be - his evidence should not be relied on from this point because van Vuuren said he just intimidated people, he doesn't even know these people, Pretorius is the one who was pointing out the houses. He said
"Dit was nie my werk nie om te vind wie woon waar"
His job was to intimidate people and that included throwing petrol bombs at their houses just like he said in the Ramakope case, that it was the only method.
As far as the Ramakope matter is concerned, it's common cause that it's not opposed, Mr Chairperson, subject to the fact Mr Chairperson, that ...(intervention)
CHAIRPERSON: No, no, let me understand you. You say you do not per se oppose, but subject to Section 20(1)(c), we should when we deliberate on that, look at Section 20(1)(c) and say "has he satisfied that requirement?".
MS NGOMANE: Indeed, Mr Chairperson.
CHAIRPERSON: Thank you.
MS NGOMANE: I will come now Mr Chairperson - let me just refer you to the David Modimeng matter, where we stated clearly in the pre-trial conference that this - all these applications will be opposed solely on the fact that Mrs Modimeng was not a political target for the Security Branch of Northern Transvaal in Brits.
Mr Chairperson, I will just start with the last applicant as well. The last applicant was cross-examined, he said it didn't matter to him, he had to go and bomb those houses with pentolite, and under cross-examination he said that he thinks it was an explosive, pentolite is an explosive and it could kill. Questions were put to him whether he realised in that particular residence there were children, women and children. He said it was not his duty, his duty was to throw bombs, Pretorius was the person who has to point houses to him, his work was just to just throw the bomb regardless of whether there were people in the house or not, women and children, it didn't matter to Mr Hechter, Mr Chairperson.
CHAIRPERSON: But he qualified the question of children when he said look if there is a naughty person in a house, it is the duty of the family to admonish that person and if the family does not do that, he would do it irrespective, but when it comes to children they are very innocent and he is remorseful if he were to injure children in the process.
MS NGOMANE: I don't fully agree with Mr Chairperson, Mr Hechter didn't seem as if he remorseful today, he said the reason why they've put the ...(intervention)
CHAIRPERSON: No, no, I did not look at the face of - but I'm saying the evidence that he gave - I must be honest, I listened to that, but you see at the same time one is sometimes writing, you're not looking at the person always, but I say the evidence he gave, the qualification he gave in respect of children, that's all I'm saying.
MS NGOMANE: Thank you, Mr Chairperson.
If we look back at the evidence which was presented today, Mr Chairperson, surely Mr Hechter knew that those people that were targeted on that specific night, had barricaded their windows and he says that "they knew we were coming for them". Even if he didn't put it in the words that I'm saying to the Committee, it's that "they were aware, they knew that we were coming." Surely Mrs Modimeng was not the person which Mr Hechter wanted that particular day. He said those people, just like Mr Modimeng who is sitting next to me, he was the one because that's why they've used the pentolite. It was a different explosive that they used in his case. Surely he didn't have regard to the lives of those people who were in the house and surely Pretorius, who said he knew, he used to go to the vicinity of Okasi, he knew who stays and he said he knew at what particular room that person would sleeping, they didn't ensure. Then comes dolus eventualis in respect of Mrs Modimeng, that there was an intention. Mr Mrs Modimeng in respect of this act was not a targeted - she was not politically active. I did put to Mr Pretorius whether he will dispute that and he only said the only thing that he had is that - surely the informants told them she was a political figure, but Pretorius' evidence, Mr Chairperson, should not be relied on because Mr Pretorius is not a reliable witness in the sense that Pretorius failed to give this Committee a file. Yes, he said they had a file, but in the case of Mrs Modimeng there was no file. He said he came to Brits in 1985, already there was a file of Mr Modimeng, but Mrs Modimeng, there was nothing. I asked him under cross-examination, he said he relied on the evidence of the informers. I asked him whether - it was put to him whether those informants could lie and he said it was possible.
His boss Mr Jubber came here, Mr Jubber only said that he was his desk officer and then he relied on what he was telling him because he was loyal and reliable, but he didn't inform his boss that, that is Pretorius, he didn't inform Mr Jubber that Mrs Modimeng - or he didn't foresee or he should have foresaw that Mrs Modimeng will be killed in the process. Mrs Modimeng was not the target on that particular night, Mr Chairperson, the person who was targeted that evening was Mr Modimeng. And we accept that he was a political target for the Security Branch, we accept that.
CHAIRPERSON: They also accept that the target was Mr Modimeng, not Mrs Modimeng. They also accept that. The only thing they said is she was caught in the crossfire and according to them it's unfortunate.
MS NGOMANE: It's not what this Act says, that you should grant amnesty, Mr Chairperson, because a person says "unfortunately I didn't know" or "I didn't foresee", then this Committee should grant amnesty. This Act doesn't say that, it says - from what I'm reading the Act is silent about whether people who were caught in the crossfire, like Mrs Modimeng in this particular case, should those people who committed those acts, those unlawful acts, should indeed be granted. It doesn't say that, it doesn't say that they should be granted amnesty.
CHAIRPERSON: No, but what would your interpretation be if you look at Section 20(3)(d), when it says
"when you target a political opponent and in the process property may be damaged"
What would you interpret that to mean?
MS NGOMANE: There I will agree, but like Mr Chairperson, if you look at the sub-section to which you referred, it talks about individuals, it doesn't say - surely Mrs Modimeng was an innocent bystander who ...(indistinct) should be - like the person who did commit this act, should be granted amnesty. It doesn't state that, it said individuals and it's not clear, the Act is silent about it. But the Act doesn't say innocent victims like Mrs Modimeng, who was not politically active, who didn't participate in any of those anti-removal campaigns, should be killed - not killed Mr Chairperson, should those people apply for amnesty, then they should be granted amnesty because they say individuals, State property or private property. It doesn't state that. Then this Committee must exercise a discretion and it should not grant amnesty in respect of Mrs Modimeng and those applicants, Mr Pretorius, who is saying to us today that she was a political - he didn't canvass that Mr Chairperson, so to speak. I asked him whether he did make the research, he couldn't answer it and I point to him that - in my last argument, that she was not a member of the Okasi Women's League. He didn't challenge that, Mr Chairperson, he didn't challenge that fact and he couldn't take the matter any further. So his evidence should not be relied on because I stated to him that he was speculating that Mrs Modimeng ...(intervention)
CHAIRPERSON: Ja, whilst I follow your argument, I've noted here that you say in respect of Mrs Modimeng, we should not grant amnesty. Their property was damaged, and if that argument flows to this extent that Mr Modimeng was married to his wife, whether in community or out of community, then the property does not belong to Mr Modimeng only, then we should partially refuse, and how do I do that when I look at proportionality?
MS NGOMANE: I think Mr Chairperson is not following my line of argument, I haven't addressed the issue of property. Surely there was malicious damage to property, which is an offence in terms of our statutes in this land. What I'm getting at, I'm talking about individuals, because the Act talks about individuals ...(intervention)
CHAIRPERSON: No, no, I said I followed all that, that's why I said I even made a note of it. Then I say I want you to address me on the question I've just posed to you.
MS NGOMANE: I will surely do that, Mr Chairperson.
The evidence of - I'm still dealing with the third applicant, I will come back to that question, Mr Chairperson, you just posed now.
ADV SANDI: Just for my own benefit, I'm totally confused now. You say you're still dealing with the third application, namely who?
MS NGOMANE: I'm dealing with Pretorius, Mr Chairperson, because you say the only thing that you have before you is the evidence of Pretorius, to the effect that he said that Hechter was there. It was in line with my argument that Mr Hechter doesn't have personal knowledge, he only had personal knowledge when he consulted with Pretorius and these issues came into light that he was also involved.
Mr Pretorius' evidence before this Committee is not reliable, to the effect that he failed to state - he failed to challenge my questions when I asked him about the women's league which he referred to. He referred to a member of the community who was staying in Okasi, who died, but he didn't canvass and bring evidence before this Committee to say definitely Mrs Modimeng was part of the people who were in favour, who were supporting this anti-removal campaign though she was a member of the Okasi Women's League, he just stated that in the air and he didn't have concrete evidence before this Committee, to state definitely we have it. He stated that she didn't have a file. Mr Chairperson, I asked Mr Pretorius whether a file was kept for Mrs Modimeng and the answer was no, so the evidence cannot be relied on. And the evidence of those people who he didn't want to mention, the informants, it's hearsay evidence, Chairperson, it cannot be admitted in this Committee. It's hearsay evidence because the informants if they wanted this amnesty to be granted, they should have come before this Committee to say "yes, we knew the Modimeng family, they were active, Mrs Modimeng in particular was a member of the women's league." They didn't want to disclose any informants, then that is hearsay and it should not be taken by this Committee, as far as they didn't come here to state and support the application of Pretorius and the rest of the other applicants. It's hearsay evidence, Mr Chairperson, and the Act it's silent about where evidence should be taken in relation to applications that are brought before you.
ADV SANDI: Sorry, is the Act ...(intervention)
CHAIRPERSON: ...(indistinct) normal rules of evidence if the Act is silent, would apply. I can assure you of that.
ADV SANDI: Was the Act supposed to say something about every conceivable subject in the world? You can't expect the Act to say something about everything. Some of the things will be given, otherwise the Act would be a very bulky, it would be a huge document if it were to say something about every conceivable issue in the world.
MS NGOMANE: Then my argument before this Committee will be that - and I will make the submission that that evidence of the informants which was heard by this Committee, should not be accepted. Those are inadmissible insofar as they didn't come here to put a different version about the position of Mrs Modimeng in this particular instance.
I don't want to repeat myself Mr Chairperson, I will just move and address you in the matter - in the question that you just posed, that indeed there was malicious damage to property in respect of Mrs Modimeng as well, and the fact that surely Mr Hechter today did testify that he threw a bomb at a house, there was malicious damage to property, there was an offence of attempted murder on the life of Mr Modimeng and there was murder in the process. He said that he did reconcile himself, then he missed the requirements of dolus eventualis. He foresaw and then reconciled himself.
Mr Chairperson, I will move to the next applicant which is van Vuuren. He was not much of an assistance to this Committee, only to say that he just intimidated people and that's it.
The other applicant, Mr Cronje, didn't even make himself - we did accept that we will accept his founding affidavit as it stands before us, but much cannot be put on - not too much weight should be put on what he's saying here, in the light of the fact that this Committee - this Act says that people - that this preamble Mr Chairperson, if I may read, that that's the object of this Act, the preamble that as far as this Committee's investigating matters which led to the conflict of the past, Mr Chairperson -
"then those people who are applying for amnesty should make full disclosure of all the relevant facts relating to those acts associated with a political objective, committed in the course of the conflicts of the past."
And then it should afford also the victims as well to put their version. I've put my client's version to the applicants which were before you and I said to them Mrs Modimeng was not a member of the Okasi Women's League, they didn't challenge it. I put to them ...(intervention)
MR MALAN: It's not incumbent on a witness to challenge a statement, except to deny that and that was done on several occasions. They said they were relying on the informants but they believe on the cross checks and balances, that to be true. However, I don't think it's here or there whether she was a member or not, in terms of our duty to find, because she was not the target. Whether she was an innocent or guilty bystander, she was a bystander on all the evidence before us. So that's not really the issue. But the evidence before us is that they had information that she was indeed a member, and this only concerns the potential credibility of Pretorius, which you have argued. You have denied that on behalf of your clients, but there's no duty on the witness to challenge that in any sense, the duty is on your client to come with alternative evidence if so needs be, and if he thinks that to be that important. But really, I don't think it's important for the sake of the argument, whether Mrs Modimeng was an innocent or a guilty bystander.
MS NGOMANE: Thank you, Mr Chairperson.
Mr Chairperson, I will just go back to the sentiments which you've just indicated. I made a submission to this Committee that that evidence of those informants who didn't come to this Committee to disclose whether Mrs Modimeng was a member of the women's league, then that evidence is inadmissible insofar as this Act goes. This Act talks about full disclosure and it's silent, it doesn't state that fine, because these people they have to be protected because they are members of a particular organisation or whatever.
MR MALAN: There's no evidence tendered that she - in that sense, that she indeed was, the evidence tendered is that they had reports which alleged that she was a member. That's the only evidence before us.
CHAIRPERSON: And that she had not received their attention, because if you remember the card system which I asked for a broadening explanation of how that card system worked, she had not received the attention of either Jubber or Pretorius on the file basis.
ADV SANDI: Unless you are saying they were stupid to believe that she was involved as she was alleged to be by those informers and sources. Is that your contention, that they were stupid to believe that?
MS NGOMANE: My argument is as follows, Mr Chairperson. That evidence of those informants who failed to come to make full disclosure to this Committee, that evidence should be disregarded, it's inadmissible in the face that they failed to make a full disclosure and to come and say "we had evidence, we have this file before you, she was a member, she was monitored." Mr Pretorius failed, he monitored Mr Modimeng, he surveyed him since he was a schoolboy, but he failed to survey Mrs Modimeng and say definitely she was a member of the Okasi Women's League.
Surely Mr Chairperson, those informants, the so-called informants who are in - they are not visible to us, that evidence I will make my submission that that evidence should be taken - not too much weight must be put on that, it should be disregarded, it's inadmissible insofar as this Act is concerned.
Mr Chairperson, I know you - I will like to summarise my whole argument. I will just address you, because I did touch on Mr Cronje, we accept from our learned friend that he's sick, he cannot make himself available, but if you go back now to these orders, he failed as a superior person - he omitted, there was an omission on his part, Mr Chairperson, to see that innocent people are not killed in the process.
All these applicants who were here before you today, they say they acted under his orders and instructions, it's there in the bundle.
CHAIRPERSON: Wouldn't it perhaps be better to level that criticism on Hechter, because on a question I asked, is that
"Were you told by Cronje what you should do"?
He said -
"I had a discretion how to intimidate, unless in other instances where we would talk about it, but in this one I had a discretion of what methods to use."
Would I be correct if I ...
MACHINE SWITCHED OFF
ON RESUMPTION
CHAIRPERSON: I say, if we listen to the evidence of Mr Hechter, is that not what he said? That in this particular instance he received the order from Cronje, yes, but Mr Cronje did not tell him what to do, he had to use his discretion. Hence at Ramakope he used the petrol bomb and at Modimeng he used the pentolite explosive.
MS NGOMANE: Indeed, Mr Chairperson, I'm indebted to your submissions.
Mr Chairperson, then I will make the submission that even if we heard what Hechter said today, that he had a discretion to decide whatever methods must be used, he had as a senior person in charge of this branch, he had a duty, he had a duty and he didn't exercise it, to see that people like Mrs Modimeng in this instance, if I may mention ...(intervention)
CHAIRPERSON: Wouldn't you say he had a duty if he utilised lawful means, but would you say where they resorted to illegal acts, that that duty rests as when he has a legal duty? Would we equate it to that?
MS NGOMANE: Mr Chairperson, I know you will come and you'll say to me the reasons why we are here is that there were illegal or unlawful acts that were performed by these particular applicants. Surely the instruction from Brig Cronje were unlawful, were illegal, but if this Committee accepts that this Act allows it to allow evidence to the effect that it was a political war, then we should look objectively and then go back to Okasi and see whether there was objectively speaking, a war as Mr Hechter indicated that there was a black on black war, then Mr Chairperson, I think that we should go back to those and ask ourselves whether this Act which was made by parliament, does allow situations where - then surely Mrs Modimeng should not be sacrificed in this particular instance and say because it was an illegal order, then the Committee is here to grant amnesty to people who come here and disclose relevant facts.
CHAIRPERSON: You know what is my biggest argument when you come with that angle, is that we would accept that murder is murder if we were in a formal Court, but any act of the day we look at extenuating circumstances, but we're clothed with that discretion here that no, no, no, you go further with this murder. He cannot get amnesty if he hasn't provided certain extenuating factors, because it says no, if it was within a political situation and we are satisfied, then we should, because we are not even going to look at that. If it is murder and committed during the conflict of the past and if we are satisfied, I don't think we can do any other thing. Because I want to say to you I hear you, that Mrs Modimeng was not active politically, that again you say we should in our deliberations, take into account that these informers were faceless and their evidence is inadmissible and we should look at it as such. Can you go beyond that?
MS NGOMANE: Mr Chairperson, I cannot take the point any further. I will just summarise my argument and say that we should go back and look at the Act, what was the intention of the legislature, was it to sacrifice people like Mrs Modimeng, who was not a political target for the Security Branch of the Northern Transvaal, and grant the applicants amnesty to evidence which was not sufficient? And especially I would emphasise on the applicant, namely Hechter, who says that "okay, because my name is mentioned, then I could have been there." Then we should just weight the applicants' interest and the victims, then this Committee is bound to exercise a discretion and should take those factors into account and take into account that Mrs Modimeng was not a political target. There was no evidence to contradict that, nothing at all, Mr Chairperson.
Damage to property was caused in respect of Mr Celo Ramakope and Mr Modimeng. Surely Mr Chairperson, it wasn't the intention of the legislature to sacrifice victims, especially Mrs Modimeng in this particular instance, because this Committee feels that there was a political objective, the requirements, the procedural requirements were met, these applications were brought before time and that a full disclosure was made. I will submit there was no full disclosure before this Committee, insofar as those informants who are invisible, couldn't come here to state to the contrary that indeed Mrs Modimeng was politically active in this, in the anti-removal campaign. Then I will make the submission to this Committee that this Committee should exercise a discretion and refuse amnesty in respect of van Vuuren, who failed to disclosure much, except to say his work was to intimidate.
Refuse amnesty in respect of Pretorius. Pretorius, he's unreliable, his evidence should not be taken into account by this Committee. And insofar as Pretorius, who failed to come with a different version in respect of the victim, Mrs Modimeng, to say indeed she was a politically active person.
And in regard to Hechter, the person who was perpetrating all these acts, that there was no full disclosure before this Committee, he doesn't have personal knowledge, he's not bona fide before this Committee, he said "just because my name was mentioned, then I could have been there." Then this Committee then should look at those factors and exercise a discretion.
CHAIRPERSON: ...(indistinct - no microphone) refusing?
MS NGOMANE: In refusing the application of Pretorius, Hechter, Jubber and van Vuuren. As it would please Mr Chairperson, thank you.
CHAIRPERSON: ...(indistinct - no microphone) whom we should refuse? Really, I'm in your hands because I've been looking at the applicants and you omitted Cronje.
MS NGOMANE: Insofar as my learned friend has indicated, he was not much of an assistance to this Committee, he failed to - okay, as a result of the ill-health, we take that into account, we accept it, Mr Chairperson, like he failed to come here and explain and give his version, a full disclosure which he had to comply with in terms of this Act. And except for this affidavit, which is not much, the families want to know more about these orders which he ...(intervention)
CHAIRPERSON: Supposing I have some knowledge and I want to say to you, October last year Mr Cronje appeared before me when I was with another Panel, or probably Mr Malan was with me, he was a very sick man and I know that for a fact, what should I do with the information that I know and when I have an affidavit that it has been worse now, that he can't even lift his foot?
MS NGOMANE: Mr Chairperson, if you look back to the bundle, he ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone) argument in respect of Brig Cronje, is that we should attach less weight to this affidavit because it does not take the matter any further. I suppose if I heard such an argument, I would consider it very closely.
MS NGOMANE: Thank you, Mr Chairperson. If I may come to the Act, Mr Chairperson, and look at Section 20(1)(c), where it states that the applicant has made a full disclosure of all relevant facts, then if the Committee is satisfied, then it could grant amnesty. What is a full disclosure? The Act is tacit, it doesn't provide - it doesn't say it's sufficient for an applicant to bring an affidavit, it's tacit, the Act is silent on that point. Then I would say this is not full disclosure insofar as this Act says that the applicant has to make full disclosure. Full disclosure would be to come before this Committee, we accept he's sick, and to help this Committee to come to a proper decision. Taking the interests of justice into account, this affidavit doesn't say anything, it just says okay, I ask for - let me put it like this, Mr Chairperson, he just says ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone)
MS NGOMANE: It doesn't say much, just to say that if those acts - if he was involved in those acts, then he should be granted amnesty and then insofar as those subordinates were concerned which were under, they were under his command, then he accepts full responsibility for it. And I will still make a submission that full disclose hasn't been made. I will close my case on that argument, Mr Chairperson. Thank you.
CHAIRPERSON: Thank you, Ms Ngomane. Mr Roux, unfortunately we've got to come back to you to hear if there is any reply.
ADV SANDI: I would be very surprised. Do you want to take us through another hour?
MR ROUX IN REPLY: I may need half and hour. There are only two aspects, Chairperson.
The first one is with regard to Pretorius. My learned friend, Mr Richard, referred to this that - actually in essence he referred to it that he was a liar. The unfortunate choice of words which he used when he referred to the house or the person, it was quite clear that his intention at all relevant times, despite the use of the words, were to intimidate this person wherever he may be sleeping and it just shows how good his information was. The fact that he is being called a liar, because it was about property, Leonard Brown's property but he did not point out Leonard Brown's house, I think that is irrelevant, this is just a semantic nuance.
And then one more thing with regard to van Vuuren. Mr Richard also said that it would appear that the reason why van Vuuren applies, is that it is possible to avoid later possible action. If that is so, then this planning beforehand was in order to misuse this law in order to avoid any accountability at a later stage. This was never put to him, that is why it cannot be accepted, with respect. And that is my rebuttal.
CHAIRPERSON: Thank you very much, Mr Roux. I must say I'm placed in a favourable position that it is not incumbent upon me to make an extemporaneous judgment or decision, that I'm going to have the benefit of sitting with my learned colleagues on the Panel, to discuss this.
I must say I am indebted to counsel that this matter was argued, that it has left us with so many things to think of to come with our decision. But that does not mean that we have to delay unduly, we shall do it as expeditiously as possible. And with those few words we are reserving our judgment in this matter. What is left is to thank everybody for their participation, that on our reading some of the things appeared to be simple, but after listening to the legal representatives we've got to look at everything closer together with the arguments presented here.
We must also thank Modimeng, Ramakope, Mr Brown, to have come before us to relive what happened 15 years ago. We hope we have come to the end of it, you can close that chapter and now lead your lives because even though you may say to yourself not much has come forward, but at least you know even the reasons why you people were attacked. But if you were to hang around on things that happened in the past, you will make life difficult. But I say now you know, whether it is sufficient or not, but at least you know and you know the people who came because this was in the middle of the night when you were asleep, you could not see these people, at least you have seen their faces.
And to those who are closest family, I don't know if they are present here, we say to you too thank you very much for having come, at least you know what happened to your beloved ones, and reconcile yourselves to that fact that the previous South Africa had a lot of problems and it would appear that we have just scratched the surface, but we are thankful to those applicants who came forward and gave us also a bit of what happened. But that does not necessarily suggest that automatically amnesty is granted because we've got to look at it, and we shall in due course do that.
To the interpreters, I'm sorry to have given you such a hard time, I've never done it before but the circumstances forced me to do that. Bear with me, I will give you a holiday for tomorrow, don't come to the hearing. We shall adjourn.
HEARING ADJOURNS
