P R CRAUSE: (sworn states)
CHAIRPERSON: Please be seated.
EXAMINATION BY MR VISSER: Mr Crause, you are also an applicant in the same incident?
MR CRAUSE: That is correct yes.
MR VISSER: This occurred in 1985 and Mr Steyn was then your Commander in the Western Transvaal?
MR CRAUSE: That is correct.
MR VISSER: What was your rank?
MR CRAUSE: I was a captain and at that stage, the Commander of the Security Branch Zeerust.
MR VISSER: Did you, yourself, handle informants who brought information from Botswana?
MR CRAUSE: That is correct yes.
MR VISSER: Did you have your finger on the pulse as far as it concerned informants and the activities of MK members amongst others, in Botswana?
MR CRAUSE: Yes. That was also the instructions to my personnel or staff.
MR VISSER: Was it also your task to exchange information with the rest of the intelligence community as far as it had to do with them?
MR CRAUSE: Yes, I only did it with the authority of my Commanders.
MR VISSER: You saw Exhibit A, which is the general background. Are there sections that you do not know or that you cannot confirm?
MR CRAUSE: I do confirm. I did read the whole section on Botswana.
MR VISSER: Was that Exhibit A?
MR CRAUSE: Yes.
MR VISSER: Did you also look at Exhibit B, the document concerning Brig Loots?
MR CRAUSE: Yes.
MR VISSER: Does that correlate with the information that you had and your experience in that time?
MR CRAUSE: Yes.
MR VISSER: Your application we know appears in the record, and can you confirm the contents thereof with the possible changes that you would want to make on it?
MR CRAUSE: That is correct.
MR VISSER: Do you also accept that this incident did take place on the 14th of May 1985?
MR CRAUSE: Yes, I do accept the date.
MR VISSER: Can you just tell the Committee exactly what your knowledge was concerning this incident and if there is anything that you can add to the testimony of Gen Steyn?
MR CRAUSE: During the gathering of information and after interrogation of arrested MK members in the Republic, I found at that Rogers Nkadimeng and Jackie Molefe were covertly active in Botswana and involved with the infiltration of MK members into South Africa. Their residence and their address and also the vehicle information was obtained with the authority of Col Steyn and this information was conveyed to the Special Forces for possible action against them.
MR VISSER: Who conveyed this information?
MR CRAUSE: I personally conveyed this information to Commandant Naude.
MR VISSER: Where did this happen?
MR CRAUSE: This happened in my office in Zeerust.
MR VISSER: Did he come to visit you there?
MR CRAUSE: Yes, he did.
MR VISSER: Did he ask you for information on these two people?
MR CRAUSE: It was Commandant Charl Naude, yes.
MR VISSER: Did he specifically ask you about information concerning the two?
MR CRAUSE: Yes, he wanted to know from me if I had the address or further details about where we could find them in Botswana.
MR VISSER: Did you know what he was going to do with the information?
MR CRAUSE: I suspected that they will be acted against.
MR VISSER: And at any stage, did you hear anything else concerning the two?
MR CRAUSE: After a period of time, I think it was approximately three weeks later.
MR VISSER: What did you think will happen to them?
MR CRAUSE: No, I knew that if Special Forces is going to act, they will kill the people, or they will attack the house or do something to the vehicle.
MR VISSER: Very well. You were busy, you said that approximately three weeks later you heard something, what did you hear then?
MR CRAUSE: I heard that a vehicle exploded in Botswana and that Rogers Nkadimeng was killed in this explosion.
MR VISSER: Did you bring the two together then?
MR CRAUSE: Yes, I did, but I also approximately three weeks later hear from Charl Naude that this operation concerning Rogers, was successful.
MR VISSER: Did you make any enquiries about the position of Molefe?
MR CRAUSE: I didn't, but if I am correct, we did receive information that immediately after the explosion, she left Botswana.
MR VISSER: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VISSER
CROSS-EXAMINATION BY MR KOOPEDI: Thank you Mr Chairperson. Mr Crause, you say that you gathered your information from amongst others, informers in Botswana, is that correct?
MR CRAUSE: That is correct yes.
MR KOOPEDI: Who were these informers?
MR CRAUSE: I am not prepared to make known their names.
MR KOOPEDI: Would you be prepared to say whether they were South African or Botswana citizens?
MR CRAUSE: It was both of the countries.
MR KOOPEDI: Okay, would you confirm what Mr Steyn said.
CHAIRPERSON: Why are you not willing to give their names?
MR CRAUSE: I am not willing, they were in a position of trust and I believe it is just polite and correct not to make known their names. I believe nobody will do it.
CHAIRPERSON: I am not worried about whose names will be made known, but I just worry about the fact that if they were involved in the committing of crimes, how can they then be protected?
MR CRAUSE: These people only provided us with information concerning individuals. They were never involved or drawn into the elimination of people.
CHAIRPERSON: Are you saying that they did not know why they are providing information?
MR CRAUSE: Information was about the monitoring and to be aware of possible infiltration and what the actions and activities of the people were, but we never explained to them that we are gathering information to eliminate people.
CHAIRPERSON: But you say it is your decision not to make known their names?
MR CRAUSE: Yes, I am not willing to do that.
MR KOOPEDI: The information that you gave to Charl Naude, do you remember what information was that?
MR CRAUSE: I gave them their addresses as well as the registration number of the vehicle.
MR KOOPEDI: Do you remember the address that you gave to him?
MR CRAUSE: It was flat number, I cannot remember the address, I think the street name was Zebra Way and the vehicle, I cannot remember the registration number, but I think it was a blue or a green not a Cressida, a Nissan. I am not quite sure, but I am speaking under correction.
MR KOOPEDI: Now in the bundle of documents on page 32, there is a picture of a vehicle. Could this be the vehicle?
MR CRAUSE: Page 32? As far as I can remember it was not a Peugeot. I cannot remember. But I would think it was a Nissan.
MR VISSER: Mr Chairman, I must come in here to explain to you that these annexures which you have from page 23 onwards, 22 onwards, no 23 onwards, have been bound in together with Mr Steyn's application, but incorrectly so. They and if you compare the Naledi Bundle and Exhibit B, they form part of Mr Wikus Loots' document, they should never have been here.
If that is of any assistance to my learned friend, I just needed to clarify that. That's got nothing to do with Steyn's application, although he refers to Exhibit B, but these are only the annexures to Annexure B.
CHAIRPERSON: Mr Visser, the point of the question is to establish what type of motor vehicle this witness thought that the proposed target drove.
MR VISSER: I have no problem with that, I am just pointing out that this is not the vehicle.
MR KOOPEDI: Thank you Chairperson. When Charl Naude came to your office in Zeerust, did he tell you that at their level or in their unit, they had already decided to eliminate the two people or did he just ask for information without saying what steps they wanted to take?
MR CRAUSE: No, he just asked for information and he talked about possible actions.
MR KOOPEDI: So he did not tell you that in fact there is a decision to eliminate the two?
MR CRAUSE: I understood that through his actions, it will entail elimination.
MR KOOPEDI: But he didn't say it, he just asked for information?
MR CRAUSE: He only asked for information.
MR KOOPEDI: Chairperson, I have no further questions for this witness.
NO FURTHER QUESTIONS BY MR KOOPEDI
MR VISSER: I have no re-examination Chairperson.
NO RE-EXAMINATION BY MR VISSER
ADV SIGODI: Tell me, do you know where Mr Naude is today?
MR CRAUSE: I do not know at all.
ADV SIGODI: When was the last time you saw him?
MR CRAUSE: Last year in April in the amnesty application hearing in Pretoria.
ADV SIGODI: Do you know if he is still working?
MR CRAUSE: I do not know at all what happened to him, we never had contact.
ADV SIGODI: You never spoke to him, you never found out what he is doing after you had been doing things together?
MR CRAUSE: We never had contact, the only contact that I had with him, was when I saw him last year in April, at an amnesty hearing. Then he told me that he was busy somewhere, but we did not have a good relationship in the Defence Force with each other, at that stage.
ADV SIGODI: At which amnesty hearing, whose amnesty hearing?
MR CRAUSE: It was the Nietverdiendt 10.
CHAIRPERSON: Naude came to you after the incident?
MR CRAUSE: That is correct, yes.
CHAIRPERSON: What did he say to you?
MR CRAUSE: He just said to me that the operation concerning Nkadimeng was executed, and that it was successful. I then mentioned that I saw it in the newspaper and he confirmed that it was the work of Special Forces.
CHAIRPERSON: When you provided him with the information approximately six weeks before the incident, did you know it was an operation?
MR CRAUSE: I suspected it yes, but it was never confirmed to me.
CHAIRPERSON: That is why I am asking, why did Naude come back to you and then give a report and say that the operation was successful?
MR CRAUSE: Well, he said that they executed an operation and that it was successful, concerning Nkadimeng.
CHAIRPERSON: You do not know if he was present at the actual operation?
MR CRAUSE: No, that I cannot say. How it was planned, who was involved, I do not know.
CHAIRPERSON: Thank you. You may be excused.
MR CRAUSE: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Visser, are there any other evidence?
MR VISSER: No Chairperson, we have no further evidence. That is the case for the applicants.
CHAIRPERSON: Mr Koopedi?
MR KOOPEDI: Thank you Chairperson. Chairperson, we will not lead any evidence, it might be important for me to at this point mention that the deceased's wife or ex-wife is here. The mother and father of the deceased, the brothers and sisters of the deceased are also here, but we will not lead any evidence Chairperson, thank you.
CHAIRPERSON: Is there opposition to the application?
MR KOOPEDI: Yes, there is on the basis that no full disclosure has been given.
CHAIRPERSON: Please extend on that argument.
MR KOOPEDI: Well, I was hoping I would do that in my argument, and perhaps this is time for my formal submission, Chairperson.
CHAIRPERSON: I just want to ask Mr Steenkamp if any witnesses are going to be called?
ADV STEENKAMP: Mr Chairman, those are the witnesses for - no further evidence will be led, thank you.
CHAIRPERSON: Mr Koopedi, I think maybe you must argue first.
MR KOOPEDI IN ARGUMENT: Thank you Chairperson. Like I said, the next-of-kin, the relatives of the deceased are opposed to the granting of amnesty to the two applicants because it appeared from the applicants, the two applicants' application forms, that they were not complying with the requirement of full disclosure, in that the very relevant facts, the very truth that the family wants to learn about and hear, was not disclosed in the application form, which is ...
CHAIRPERSON: Which is it? Yes, let's hear.
MR KOOPEDI: I was going to go to that, Chairperson, which is who planted the bomb, who is the person who went and planted the bomb; where on the vehicle was this bomb planted; on what day was this bomb planted; when did the bomb planter expect the explosion? There were supposed to be two targets here, so there must have been a certain type of reconnaissance in terms of saying when would both be in the car, what type of an explosive was it, was it - how was it detonated? Was this electronically done, by remote control? Would this have happened when the car was started? All those facts were clearly not on the application forms and it was the immediate feeling that full disclosure is not being meted out.
CHAIRPERSON: I can understand that feeling, based on your argument, but now having had the benefit of the evidence, and having heard what they said, what is your view?
MR KOOPEDI: Here is my view now Chairperson, moving from the first part which would have been my instructions.
My view currently is that we have two applicants who strictly speaking only gave information to some other agents. These two applicants did not at any stage come up with the idea that the two people should be eliminated. They did not, at any stage, give anyone any order to eliminate the two.
They only passed out information which the Defence Force would have gotten any way. My submission is therefore that the two applicants did not conspire, did not commit the act, they did not conspire with anyone that the two people should be eliminated, they are therefore not proper applicants before you.
CHAIRPERSON: This is probably what is going to be their argument, that within the ranks of the Special Security Branch at least, everybody there knew what the activities of Special Forces were and when Special Forces representatives come to ask for certain information, there is an inherent suspicion, justifiable they would argue, that the people mentioned and in respect of whom information is being sought, are likely to be killed, because that is the job of Special Ops?
They themselves, both of them say that they had relatively good suspicion that this was going to happen. Don't you think that in that was the conspiracy, at least?
MR KOOPEDI: I respectfully differ from that, Chairperson. The last witness here told you that when Charl Naude came to his office, he merely asked for information. A specific question was asked as to whether "were you told of a decision to eliminate the two", there was a clear answer to that, that they were not told of a decision.
The fact that Special Forces do kill people, does not necessarily mean that by giving information to them, you therefore collude or conspire with them to murder someone.
They came and asked for information, this information may and I would underline that, may have been used to specifically find the two people and execute their operation.
CHAIRPERSON: A known robber comes to Mr X and asks Mr X how much money is in that bank, he comes to someone who obviously knows that, who has that information, is that person who has that information and possibly gives it to the known robber not entitled to think "this guy is preparing to rob the bank"?
MR KOOPEDI: I believe Chairperson, the distinction should be drawn between thinking that a person could do X and actual intentional conspiring to do something. When people sit, talk and agree that it is proper to eliminate this person, I would believe that that is conspiracy, but if I sit and think "he kills people outside, he might kill this person", with respect Chairperson, my submission is that I was not party to colluding to kill this person. A decision was made elsewhere that ...
CHAIRPERSON: (Microphone not on)
MR KOOPEDI: Excuse me?
CHAIRPERSON: What is your liability if you facilitate the killing of that person by giving addresses and type of car driven by the prospective target, etc? Is that not being party to the whole operation?
MR KOOPEDI: I submit Chairperson, we most probably are getting into common purpose.
CHAIRPERSON: Yes.
MR KOOPEDI: And which would mean that you have to take an intentional decision that "I am associating myself with this particular act". At the stage when Charl Naude goes to the last witness' office, there is no act of murder that has been spoken about. As far as the Security Police are concerned, no one has made a decision that this person is to be killed, only information is being sought from them.
I submit Chairperson, this information could have been used for a variety of things, not necessarily killing people. Yes, it could have been used for a variety of things.
CHAIRPERSON: ... Special Ops do?
MR KOOPEDI: Chairperson, I don't know, I wouldn't say Special Ops did this, because I believe till today people still wants to know what did Special Ops do.
But be that as it may Chairperson, even if Special Ops is the responsible unit, even if Special Ops is known or was known to be the killers, my submission is that mere knowledge of that fact, does not make you a conspirator, Chairperson. You are not told that these people are going to kill anyone. They only want information from you, you don't ask any question, questions that would lead you to know that actually a proper action is going to be taken.
It is my submission that the reason why, from the Security Police, the reason why the second target was not followed was simply that, Chairperson, they were not party to the decision. They were not concerned as to whether the second target is killed or not.
CHAIRPERSON: ... would have asked about it?
MR KOOPEDI: My submission is they would have wanted to know, if they were party to the conspiracy, they would have wanted to know why not the second target, why don't you take further action.
CHAIRPERSON: ... agreement, is that what you are saying? Had they been party to it, they would have enquired about the second part of the arrangement?
MR KOOPEDI: That is what I am saying Chairperson, and because they were never told that there was going to be a murder or there was going to be a particular action against the two, they were not bothered whether one person was killed, whether it took three weeks to accomplish the mission, why did it take three weeks, that was not their baby.
And my submission is therefore that they are not proper applicants before you, because they are not guilty of any offence, thank you Chairperson.
MR MALAN: May I just ask of you Mr Koopedi, is the evidence not that something between "we knew that planned action would lead to an attack or an elimination, the knew was, we had a very strong suspicion" and I think both applicants at some stage, used the words "we knew that there would be actions although it wasn't said to us".
If you then, under those circumstances, having the suspicion that something is probably going to happen, and you nonetheless disclose certain information which makes it possible for the person to commit that crime, aren't you then at least on the basis of dolus eventualis linked into that action, carry on regardless, you have the strong suspicion to put it mildly, and you nonetheless assist in making it possible?
MR KOOPEDI: Chairperson, we do not have any evidence whatsoever that the information given assisted the Special Forces in the operation. More than anything else, we sit here and surmise, we think that because Special Forces went to the Security Police, asked for information, it might therefore be that this information was used for the killing.
CHAIRPERSON: ... that what went through their minds in any case? Wasn't that their intention, to facilitate what they thought was eventually going to happen?
MR KOOPEDI: Well, I don't know about that Chairperson, however ...
CHAIRPERSON: I am asking you about it.
MR KOOPEDI: My answer is I don't know about that, but what I am saying is if there was no word said to applicant Crause by Charl Naude, if Charl Naude did not say to Crause "we are going to kill these people, or we are going to do X to them", therefore there was no conspiracy to do anything, and my submission is that the giving of that information does not necessarily mean that it is this information that led to the killing of the two people.
CHAIRPERSON: ...(indistinct), the requirements for common purpose are set out, especially in the event where there was no prior agreement, one of the aspects as defined there is that you would be guilty on the basis of common purpose of any eventual crime if you physically or ...(indistinct) assist in the commission of that crime. Here, in their minds, both of them said "we had a suspicion that a crime was going to be committed in that Mr Nkadimeng and Ms Molefe were going to be assassinated. We were asked for information as to where these two individuals could be found", an essential part of the commission of the crime or crimes. And they provided, are they not party to a crime, never mind what the crime may be, we can talk about that later?
Are they not guilty of a crime? Even if it is not the Special Ops that committed that crime?
MR KOOPEDI: My submission is still not, Chairperson. If I understand properly the requirements of common purpose, it is that if you physically or in your mind, or one way or the other, assist in the commission of the offence, then you are guilty of the offence. At this stage Chairperson, we do not know if this information led to the killing. There is no evidence towards that.
Further Chairperson, no indication was given to the Security Police that "this is what we are going to do" and my submission Chairperson is that the information may or may not have been used. It is a known fact that Special Forces also had their own intelligence agency, all sorts of things could have happened, that information could have been used for going into a data base, this information could have been used to send other people, you know, who would have been termed as MK members, to the two people if indeed their job was to infiltrate people into the country.
What I am saying Chairperson is that, if Charl Naude does not say to Crause that we want to eliminate these people, it is not for us now to come to the conclusion that in fact the two people conspired to commit the action. There was clearly no conspiracy, there was clearly no mention of the fact that the two people could be eliminated. Chairperson, I do not wish to believe at one moment that in all matters where Special Operations or Special Forces was involved in, this meant killing? We might not know exactly what is it that they did, but the mere asking of particulars or personal details of some people, does not necessarily mean that any person who gives this information, is therefore a conspirator.
ADV SIGODI: Are you then drawing an analogy between the situation of the applicants as being the same as that of the informers in Botswana who supplied information to the Security Branch in that they did not commit any crime or offence, they merely supplied information?
Are you saying that the applicants merely supplied information to the Defence Force and therefore are not guilty of any crime, because in their minds they did not come up with the idea of eliminating these people, did not agree that these people should be eliminated, were not part to any such agreement, were merely supplying information?
MR KOOPEDI: That is exactly my point, that applicant Crause went to applicant Steyn, Steyn gave authority not to kill, but authority that information can be passed. Steyn did not know how, where, by whom will this operation be carried, so didn't Crause. None of them at any stage, was concerned with why one target, why not the other, why do we hear after three weeks after the operation, they had no interest in the matter, and my submission is that they did not collude to the killing.
ADV SIGODI: In other words, if they fail to supply the name of the informer, can we then say the informers there in Botswana who gave them the information, were also part to the crime, because they knew that the information that they supplied to the Security Branch would be used one way or the other?
MR KOOPEDI: That would be so, if I was convinced that the applicants colluded or were consciously taking part in the planning of the killing, I would therefore critically want to get to the informants, the people, both who we were told, were both from South Africa and Botswana, who gave information on the two, but we could not be given information as to who these people are, and perhaps it is simply because these people did not know what this information was for, and of course, if anyone gives information to Security Branch members, clearly this would be something that the informer would know that it has something to do with the Security Police and the people against who I am informing.
But as to what is going to be done to this person, the people I am informing on, whether these people will die, this poor informer does not know. My submission is that the two applicants had no knowledge as to what exactly would happen.
MR MALAN: Mr Koopedi, I am now faced with a bit of a conundrum. We are agreed that the evidence at least was that they were approached for information on the basis of Special Forces planning some action in Botswana. Evidence was that in their minds, the planning of action means either an attack on a facility or an attack on an individual.
Now, when you were asked for your position and to argue with us, your first argument was that they should not be granted amnesty on the basis of there being no full disclosure. Now that argument presupposes the existence of some act which constitutes an offence, otherwise there is no obligation to disclose. Then the Chairperson asked you about their evidence and their obvious lack of knowledge as to how this operation was carried out and then your second argument becomes, they shouldn't qualify because they have not disclosed any act which constitutes an offence, if I understand you correctly.
Now, is your argument indeed that on what they have put before us, no competent Court could make any finding as to the applicants having committed any offence whatsoever, on the fact that they brought before the panel, is that your argument?
MR KOOPEDI: The answer is yes, and I am happy that you actually summarised the two stances very clearly. My first response was to explain what my instructions are, the basis on which I told the Committee that my clients opposes the granting of amnesty here, and I was asked for reasons, and of course at that stage, my advice to them, and what they would say to me would be based strictly on what is in the application forms, because we didn't have any testimony.
I was then asked that now that we have given this testimony, what is my view, and the second part now, that is my view that they are not properly before the Committee, because they were not party to the colluding. That is my stance.
MR MALAN: Well, not only colluding necessarily, but any offence. You see, because the qualification for amnesty in order to qualify for amnesty, an applicant must admit of an act which constitutes an offence or a delict.
MR KOOPEDI: Yes.
MR MALAN: And your argument is clearly and that would then, to take it to its logical consequences, your advice to a Prosecutor would be on this evidence, don't prosecute, because these two applicants have not committed any offence whatsoever?
MR KOOPEDI: That is very clear.
MR MALAN: That is what you would say to a Prosecutor?
MR KOOPEDI: They committed no offence and I do not believe that any charge would stick, the charge wouldn't stand.
MR MALAN: The I understand your position clearly, thank you.
CHAIRPERSON: ...(indistinct)
MR KOOPEDI: No, not at this stage Chairperson, if there is, I will ask the Committee to allow me to.
MR VISSER IN ARGUMENT: Mr Chairman, I am not sure if and if so, to what extent I must get involved in an argument regarding the issue of the offence.
There are of course two issues here. The one is the question of common purpose who only came really to its full right in Safatsa's case, before that and Mr Malan, Commissioner Malan mentioned this before, the issue of dolus eventualis and that was, that was a decision which was given in the Witwatersrand Local Division by the late Justice Dowling in the case of S v Pillay, I am not sure whether that was a relation.
CHAIRPERSON: No, no, criminals in my family.
MR VISSER: But the facts there were interesting in the sense of how I would submit, they are relevant to the present case. In that case, Mr Erin Mendelow, my colleague, appeared for Mr Pillay who was charged together with three African gentlemen who all hailed from Kliptown and the African gentlemen went to Mr Pillay and obtained from him a firearm with which they told him, they were going to rob a filling station in Vereeniging.
They set off and of course what happened is that they shot the poor filling station attendant and he died, and they were all charged with murder. I had the privilege of being in court during the hearing in 1963, it might have been 1964 when Justice Dowling asked Mr Erin whether his client had ever heard of the qui facit per alium facit per se and Mr Mendelow immediately retorting, "My Lord, I can assure you in Kliptown they speak of little else", but in that case, that case was the locus classicus if I may say Chairperson, where as in this case, information was given to the perpetrators. There a firearm was given. There is no difference in the two situations.
It is more, it is more dramatic in the case of the firearm, because the firearm was used to shoot, but here, it is exactly the same thing. The information is used to direct Special Forces to the person and they kill him. With great respect Chairperson, I started off by saying this morning that it is not for you to analyse and dissect the evidence to the extent of what precise offence or delict had been committed.
If one only thinks of delicts, of all the hundreds of delicts that we have today and even with the advent of the new Constitution, it is a matter of almost impossibility to put actions into pigeon holes, Chairperson.
The point is both these applicants, as was pointed out to my learned friend, gave very clear evidence that they suspected very strongly what was going to happen and as you put it yourself, Mr Chairman, what else did Special Forces do? I certainly don't know of anything else they did. They went and they clobbered what they considered to be their enemy and their installations.
Now, at least we know that at the very least, there was a defeating of the ends of justice, that is clear. Because they certainly never went public with their knowledge that it was Special Forces who did it, and in that sense obviously they committed that offence.
Chairperson, the evidence of Crause went a little further than what my learned friend said. He said Naude told him that they are considering acting against these people, that was his evidence. We don't believe with respect, that it makes any difference whether he said so or not. Whilst it is in the mind and part of the mens rea of the applicants, that there is going to be a killing or a destruction of property and I assist by giving information, I have little doubt that an Attorney-General is not going to pay too much attention to my learned friend, Mr Koopedi, when he tells him not to prosecute.
Chairperson, as far as Mr Naude is concerned, Mr Naude together with Mr Joe Verster, Gen Joep Joubert and I believe there were one or two others, were in fact applicants for amnesty in the Nietverdiendt matter. In that case, there were 10 people from Mamelodi who had given an indication to Mr Joe Mamasela that they wanted to go out of the country to receive military training. Joe Mamasela took them all in a Volkswagen kombi and of course alerted the Security Branch in Pretoria who alerted Western Transvaal Security Branch and I believe it was Mr Jack Cronje who alerted Special Forces, Mr Charl Naude, and what happened with those unfortunate gentlemen is that near Nietverdiendt, their kombi, they were first drugged and I think they were injected with a drug, to make them sleep, unconscious and they were then placed back in the kombi, pushed down into a ditch and the kombi was blown up.
The reason why Special Forces applied for amnesty in that case, was because they had obtained a written opinion from one of my colleagues, right at the outset of the amnesty process, and they were advised, rightly or wrongly, and I make no judgement on the matter, that when they acted over the borders, in a foreign country, their actions fell within the prescribes of the Defence Act and that they therefore did nothing wrong.
On that basis, they decided not to make application for amnesty in any of the events where they acted over the borders. The Nietverdiendt one was the exception, because that took place in the Transvaal, and that is why they then all applied for amnesty and that is basically the background as to Charl Naude's position, for what it is worth.
Chairperson, you have heard the applicants. Any Security man in 1985 ...
CHAIRPERSON: Sorry Mr Visser, I thought that the Trojan Horse concept was founded in Italy and later, like last week in New Zealand ...
MR VISSER: Chairperson, the evidence of the witnesses you have heard, and it is simply my submission that any Security Policeman who could have thought that Special Forces wanted information for any other reason, wouldn't have been worth his salt. He would he known and there is no question that they knew when they gave this information ...
CHAIRPERSON: Mr Visser, let's for the benefit of Mr Koopedi say that that information did not play a part in the commission of any offence if it did occur. The point of the matter is that they conspired there to what they thought would eventually turn out to be a murder?
MR VISSER: Absolutely, both on the basis of common purpose and the purpose of dolus eventualis, yes.
CHAIRPERSON: It doesn't matter if Special Ops committed this offence or not?
MR VISSER: Yes, of course you also have the offence of attempt, you don't have to have a completed offence, a completed act of the murder taking place in fact. As we know, it didn't take place in the case of Ms Molefe, but they are just as guilty of an offence in regard to her as they are in regard to ...
CHAIRPERSON: ... is the offence of conspiracy to commit a murder, a lesser offence than attempt to murder or vice versa? I don't want to get into moot cases ...
MR VISSER: Chairperson, I must tell you that there has been so many arguments about that, and it really only comes to play when the Judge has to consider his sentence. Frankly, I would not like to go on record as to say the one is more serious than the other.
CHAIRPERSON: ... particular finding assuming that we find there is liability or there would be liability on the part of your client. I am just trying to fathom out which direction I must go.
MR VISSER: Chairperson, the moment you speak of a conspiracy, it is to commit murder and nothing else. Whether the murder takes place or not, that is not the point. That is what he is going to be charged with and the Judge will as a competent finding, in terms of the Criminal Procedure Act be able to say "well, on the facts of this case, I think there was an attempt" which if I am really pressed, I would say would be the more serious of the two.
There was an attempt, or there was simply a conspiracy which came to nothing. But really you don't, I don't believe, have to decide on which of the two is the more serious.
CHAIRPERSON: Is there anything else that you wish to ...
MR VISSER: ... there is just the question also of Mr Charl Naude, you will find at page 1 of your Bundle, that there is a reference to an Adv Alex Bosman, that is really an Attorney Alex Bosman, he is the Attorney for Mr Charl Naude, him being the person who is implicated here, and there is his telephone number, so if there is anything you want to know about Mr Charl Naude, his Attorney is on record.
Chairperson, the only other point that I feel I perhaps need to address, is the issue raised by Adv Sigodi that they were in the same position as the informers. Well, really Chairperson ...
CHAIRPERSON: I think she was asking the question of Mr Koopedi, in terms of his argument?
MR VISSER: Well, there is clearly a difference in the situation, and frankly, if they knew that the information that they were given, was definitely going to lead to attacks, well, then obviously they would be socius criminis, but that's got nothing to do with the application before you today.
And of course Chairperson, throughout all of this, we must not forget that we are also speaking of delictual liability.
CHAIRPERSON: My view, and I don't speak for anybody else, my view is that if there is amnesty, it goes together.
MR VISSER: Yes, Chairperson, we would therefore ask you to favourably consider to grant the applicants amnesty for any act or offence or omission and or delict committed in regard to this particular incident, which we have fully described, took place on the 14th of May 1985 and concern Mr Nkadimeng and Ms Molefe. Thank you Mr Chairperson.
CHAIRPERSON: Mr Steenkamp, have you got anything to add?
ADV STEENKAMP: I've got no further submissions, thank you Mr Chairman.
CHAIRPERSON: Have you got anything to add?
MR KOOPEDI IN REPLY: A brief reply to what counsel had referred to as ...
CHAIRPERSON: Only new aspects, please. I have heard what you have said in the first place, and I have heard what he's got to say. If you want to add new aspects, then be my guest.
MR KOOPEDI: Chairperson, I am replying to what he said, so it is definitely not anything new. I am only confining myself to the Pillay case that was cited. In that case, the three robbers went to Pillay and told him that "give us a gun, we are going to rob", and he gave them the gun which was the instrument.
In this instance, the Security Police were approached to give the Special Forces information but they were not told what that information is for, and I believe that is where the thin line exists, Chairperson. Thank you.
CHAIRPERSON: Yes, thank you. We are going to reserve our decision on this matter, we will deliver it in due course. We will adjourn until two o'clock.
COMMITTEE ADJOURNS
