CHAIRPERSON: Unfortunately due to some misunderstanding we weren't told that you're ready and waiting.
MS VAN DER WALT: Mr Chair, I appear for Mr Schoon today, as Mr Prinsloo said yesterday. I call him as the next applicant.
CHAIRPERSON: It seems as though we've got a change of representatives on our right, so please put yourself on record.
MS SAMUEL: As the Chairman pleases. I must apologise for not introducing myself earlier. May name is Ms Samuel. I now appear for the family of the victim.
CHAIRPERSON: In the old days I would have said we've not seen you.
GERHARDUS STEPHANUS SCHOON: (sworn states)
EXAMINATION BY MS VAN DER WALT: Mr Schoon, your application is in the bundle from the official form on page 34 to 35(b) and this incident is from page 36 to 37 and the political motivation is from page 40 to page 47. Is that correct?
MR SCHOON: Yes, that's correct.
MS VAN DER WALT: Mr Schoon, you were, during the time when this incident took place, a member of the National Party, is that correct?
MS VAN DER WALT: And you were a member of the S A Police. Where were you stationed during 1980?
MR SCHOON: I was stationed at Josini, I was a Branch Commander of the Security Force.
MS VAN DER WALT: And your rank at that time?
MS VAN DER WALT: You have now heard the evidence of the other applicants and where it relates to you, do you agree with it?
MS VAN DER WALT: You've also attended an investigation where one of the members who presides at the moment, was also part of the investigation in terms of Section 29, where you were interrogated on this matter.
MS VAN DER WALT: And it's also bound into the bundle, is that correct?
CHAIRPERSON: It appears on page?
MS VAN DER WALT: How did it happen, Mr Schoon that you became involved in this incident?
MR SCHOON: I can't remember the dates precisely, it must have been in the beginning of 1980, it could have been later as well, but as I say, I can't remember specific dates, then one day I got a phone call from Sakkie van Zyl. He was a Lieutenant at the time. I said in my previous questioning that I was stationed at Pietermaritzburg, but he was there before that, he was at Ladysmith at the time of this incident. That is correct, as he said.
MS VAN DER WALT: So he called you?
MR SCHOON: Yes, he did and asked me to be ready to help with a sensitive operation. It was telephonically, he did not spell it out, all of it.
MS VAN DER WALT: So you would not have discussed details on the phone?
MR SCHOON: Yes, that's correct.
MS VAN DER WALT: And then you met each other at a certain place, is that correct?
MS VAN DER WALT: Where was this place?
MR SCHOON: I've heard the testimonies of the other people. I was under the impression that it took place at the farm Leeuspoort at a house, but it could have been in Josini at my office. That is also possible.
MS VAN DER WALT: And did you there meet Messrs Visser, van Zyl, Carr and Gold?
MS VAN DER WALT: Were you given any instructions there?
MR SCHOON: It was said that I had to help with the elimination of a trained MK member.
MS VAN DER WALT: Were you given any specific instruction?
MR SCHOON: The thing was discussed, the way in which it would be done and the place where it would be done and it was my suggestion that an island in the Josini dam be used, as a safe place.
MS VAN DER WALT: You were told that the body was going to be exploded with explosives?
MR SCHOON: The matter was discussed and it was decided that explosives would be used.
MS VAN DER WALT: What did you then do?
MR SCHOON: We went together to a farmhouse on the farm Leeuspoort at Candover in the Ngotje District. We went there. I cannot remember that I saw the deceased while he was still living, it is possible, but I did not communicate with him, I can't remember at all talking to him. On the contrary, I don't even know what the man's name was. In my amnesty application I saw for the first time that his name was Scorpion, that was put in by my representative in the various amnesty applications, to identify the application.
MS VAN DER WALT: Was it then that the facts, during consultation, were given to the legal representative that you were given the name Scorpion?
MS VAN DER WALT: You were also interrogated about this and it was in accordance with Section 29 and you also added that it was the only incident that you were involved in with these men, Gold, Carr, Visser and van Zyl?
MR SCHOON: Yes, that is correct.
MS VAN DER WALT: Is it for that reason that you know that it is this specific incident?
MS VAN DER WALT: You then went to fetch a boat, is that correct?
MS VAN DER WALT: For what was the boat to be used?
MR SCHOON: The boat was to take the people to the island where the explosives would be used.
MS VAN DER WALT: And did you go to the island?
MR SCHOON: I went to fetch the boat, I came back to the side of the dam where I met with the people, that is van Zyl, Carr, Brig Visser and Mr Gold. They got onto the boat plus the deceased, who was covered in a piece of tarpaulin. I took them to the island in the middle of the dam, not quite in the middle of the dam and there Gold disposed of the body with explosives.
MS VAN DER WALT: Did you help in any way?
MR SCHOON: I can't remember clearly but it is possible that I did help.
MS VAN DER WALT: And then you left, is that correct?
MS VAN DER WALT: Can you remember whether there were one or two explosions?
MR SCHOON: I remember only one, I can't remember a second.
MS VAN DER WALT: And did you do this on the instruction of Brig Visser?
MR SCHOON: I can't remember who did the talking, I believe it was Visser because he was the senior person present, but whether it was van Zyl who spoke, that was representing Visser so he was the man who had the say there.
MS VAN DER WALT: Did you have any information with regard to the deceased, as to why he had to be eliminated?
MR SCHOON: I did not ask questions, Visser just told me that he was a trained MK member who was arrested in Soweto. I now hear that he was, there are contradictions as to where he was arrested. It can be that I just deduced that he was arrested in Soweto, because Visser was present, but I assumed that he had been arrested in Soweto. I didn't ask the question, I believed it was correct and I just fulfilled my orders.
MS VAN DER WALT: You didn't know this person at all and the only assumption that you make, that we can make, is that you had no feeling of hate or revenge or anything?
MR SCHOON: Yes, that's correct.
MS VAN DER WALT: Did you gain personally from this action of yours?
MS VAN DER WALT: Why did you carry out this order?
MR SCHOON: We were at that stage in a state of war and I believed it was right and a senior officer who was a Divisional Head Commander gave me an instruction, I could not refuse.
MS VAN DER WALT: Are you asking this Committee for amnesty for any offence arising from these actions that caused the death and disposal of this person?
MS VAN DER WALT: And any delict, delictual liability that may arise?
MS VAN DER WALT: Mr Schoon, I know it does not specifically relate to you, but I would like to refer you to certain documents here. Committee, I am referring to page 130 of the bundle. This is very clearly a police document. It is from the Security Branch from Brig du Preez, written by du Preez, to the Commissioner of Police. It is an application in terms of Section 6 of the Terrorism Act of the time where they wrote a motivation. Is that how you read it?
MS VAN DER WALT: Then it follows after that, there follows on page 132 up to page 138, certain print-outs. I showed them to you this morning, is that correct?
MS VAN DER WALT: If I read these because the Amnesty's Administration put it in the bundle, it would appear as if these are computer print-outs from Security Head Office.
MR SCHOON: It would appear like that, yes.
MS VAN DER WALT: And if I see these then they are about what the family of Mr Madondo, it has to do with Oupa Ronald Madondo, is that correct?
MS VAN DER WALT: Thank you, Mr Chair, no further questions.
CHAIRPERSON: Before you stop there, can he perhaps help us with the print-out on page 138?
MS VAN DER WALT: If I could show you, Mr Chair, on page 137 there are more details, 138 is just the shortened version. I also showed it to Mr Schoon this morning, may I just talk to you for a moment? May I go backwards in the - it's about Mr Madondo and it has his date of birth which is 20/5/1948 and it gives what his home language is and goes on to refer to the fact that he is a lorry driver. Are these all the details known about this man and were put on the computer?
MS VAN DER WALT: On page 137 there was an identification, 9th month of 78.
MR SCHOON: The person who testified about him is there.
MS VAN DER WALT: He met him in Kibasch in Angola, it was an ANC Military Training Base?
MS VAN DER WALT: It appears that this person met Madondo, no that Madondo was trained in Angola at that time. In the first month of 79 this person departed. It goes on to say that G T saw him again.
CHAIRPERSON: G T did not see him again.
MS VAN DER WALT: Sorry, but in the 7th month of 83, there's a name September, his surname is Sidebe and that's a known person, is it know that he was one of the Commanders of, from where, can you remember?
MR SCHOON: From the Transvaal machinery, but he was stationed in Swaziland.
MS VAN DER WALT: That Sidebe identified him and then the next sentence, they instructed G T to eliminate him because he had worked with the S A Police in the RSA. Such information will also be available. Just below that Mr Chair, he, at that stage, it would seem to me as if it refers to 1983, he moved between Swaziland and Matola and it goes on to say G T then went with them to Kibasch where they got training. So that is about, that's the info that the Security Police had with regard to Mr Madondo.
Then we can go to page 138 which is also a summary of page 137.
CHAIRPERSON: It's almost a duplicate in fact.
MS VAN DER WALT: Yes. So this is as you understand it, that this information is obtained through informants and then placed on record?
MR SCHOON: Not just informants, these are arrested terrorists and all the information from interrogation would also be recorded.
NO FURTHER QUESTIONS BY MS VAN DER WALT
MR WILLS: Thank you Mr Chairperson.
CROSS-EXAMINATION BY MR WILLS: Mr Schoon, when you received that first telephone call from van Zyl, you indicated that he requested your assistance for a sensitive operation, did you at the time realise that this was going to involve something of such a nature, like the murder of somebody?
MR WILLS: What did you think you were going to be involved in?
MR SCHOON: I couldn't really make any deductions according to what he told me. It was vague.
MR WILLS: Was it quite common for somebody out of your area to request your assistance?
MR SCHOON: Chairman, we were in the same division and we worked together at all stages and if I had something to do and there is a neighbouring area, then I would see those people and we would work together, that was the general type of approach.
MR WILLS: So in other words it was quite common for you to have dealings with Mr van Zyl at that time?
MR SCHOON: That is correct, yes.
MR WILLS: Just getting to the boat, where did you get the boat from?
MR WILLS: Yes and whose boat was it?
MR WILLS: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR WILLS
MR BOOYENS: No question, Mr Chairman.
MS SAMUEL: Thank you, Mr Chairman.
CROSS-EXAMINATION BY MS SAMUEL: So you worked in Josini at that time, am I right?
MS SAMUEL: And where did you live at that time?
MS SAMUEL: Now of Capt Paul van Dyk, Freek Pienaar, Gert Beeslaar...(intervention)
MS VAN DER WALT: Chairman, sorry, those people are not involved at all.
CHAIRPERSON: Well, let's hear what he wants to ask because if you're implicating people, you would realise we'll have to give them notice.
MS SAMUEL: Sir, I'm just looking at page 37 of his application.
MS VAN DER WALT: Chairman, this morning I made objections to the person leading the Committee because there was a further application in this bundle by my client. He could give me no explanation as to why this was added to the bundle, and I would like to say that the application still has to be heard.
CHAIRPERSON: It is still a future application that will be dealt with at the hearing of that application.
MS SAMUEL: As the Chairman pleases. Be that as it may. Sir, where did Mr Visser live at that time, do you know?
MR SCHOON: He lived in Johannesburg.
MS SAMUEL: And Mr Visser was the person who contacted you to come and help him dispose of this body, am I right?
MR SCHOON: No, I thought I said it was van Zyl who assisted me, or who was contacted.
MS SAMUEL: Is it Mr van Zyl who contacted you, is that what you're saying.
CHAIRPERSON: That was his evidence, Sir.
MS SAMUEL: Thank you. No, I didn't write it down. Thank you, Mr Chairman. What I want to know, of all the members that you were in contact with in regard to this incident, were any other members living in Josini at that time?
MR SCHOON: I don't really follow the question. If I could answer like this perhaps, Josini was a Security Branch, a number of members were stationed there but the people mentioned in this application, none were stationed at Josini.
MS SAMUEL: Those are the people I'm referring to. Is it not true, Sir, that you being the only member that was stationed at Josini, know the area in Josini, am I right, or would know about vacant farm houses?
MR SCHOON: That is correct, Sir.
MS SAMUEL: Is it not true that you were the person that arranged for them to meet at this farm house? You informed them about this vacant farm house, Sir?
MR SCHOON: Van Zyl did mention that we used that place on a former occasion, he was also aware of that house then.
MS SAMUEL: So they didn't ask you for any assistance in regard to a vacant property that they could utilise for that day?
MR SCHOON: I don't exactly remember what was said Mr Chairman, but like I have stated, the proposal that the dam be used came from me. I do not remember about the house, whether it was Van Zyl but he did know, Carr knew about the house and I would also think that Brig Visser was aware of that house because we basically used it as a base when we had roadblocks, people slept there and we moved out from there. It was therefore well-known between the people in the Eastern Transvaal and also those people in Natal, not only Josini’s personnel, but also people even from Pietermaritzburg actually stayed there as well.
MS SAMUEL: Now on the day in question, when you arrived at the farm house you noticed that this person was already disposed of in the sense that he was already dead, am I right?
MR SCHOON: No, the first time that I saw the person was dead, I doubt that I ever saw him while he was alive, but at home I hadn't seen his body. He must still have been alive when I left there. The first time when I saw he was dead was when they went to the dam and then he was wrapped in a cloth.
CHAIRPERSON: Let's just get clarity. You went together to the house and then you went to the dam to fetch the boat. Could you give us an indication as to how long it could have taken?
MR SCHOON: Mr Chairman, I would just like to correct the distances. We talked yesterday about the fact that Botswana is about 70 kilometres away from the house. Pongola is about 70 km away from Josini. You have to go through Josini to go to Pongola. The farmstead is about 20 km away from Josini in the direction of Pongola, in other words approximately 50 km away from Pongola, it could be a few kilometres extra if one includes turnoffs. The distance from the farm to the dam, I think van Zyl was there recently, I wasn't there recently either, but I think it is slightly further than he said, I think it's at least a kilometre further. I went from the homestead to Josini. I fetched the boat there. I then took the boat and put it on the dam and I drove back to where he was exploded.
MR LAX: Just while we're on this point, why did you actually go to the farmhouse at that stage? You were at your office in Josini, they were going to the farmhouse, why did you go with to the farmhouse and then go all the way back to Josini again?
MR SCHOON: I cannot exactly remember what was said, perhaps I showed them the route, Carr must have been there before, but I cannot remember exactly. I do not know, but during the killing of the person I was not present and I therefore cannot tell, but I cannot explain why we went back.
MR LAX: It just seems strange, because you sat in your office, you discussed this matter and you worked out what would be done and as you say, you suggested an island in the dam and so on, so at that stage it would have been apparent to you that a boat was required and yet you drove 20 k's to the farm, saw that everything was right there, drove back, then went and got the boat.
MR SCHOON: Chairman, I do not know whether it was actually complete, the discussions at the farmstead, I do not recall exactly, but in the way that you put it, it sounds as though it was a useless trip, but I do not remember the facts.
MR LAX: Please continue, Ms Samuel.
MS SAMUEL: Thank you. So basically when you got to the dam, this body that you saw was wrapped in a sail, am I right?
MR SCHOON: That is correct, Chairperson.
MS SAMUEL: Did you at any stage remove the sail to see whose body was lying in the sail?
MR SCHOON: We took the person who was wrapped in the sail and we put him on the boat. There he was killed.
MS SAMUEL: He was already killed by that time?
MR SCHOON: He was dead already, yes.
MS SAMUEL: My question is, did you remove the sail at any stage to try and see whose body was in the sail, because if it was in the sail it would have been covered. What I'm trying to get at, you wouldn't have been able to identify that body at that stage, am I right?
MR SCHOON: We had not unwrapped the sail at any stage and once it was opened, it wasn't because we wanted to see who it was, because I wasn't interested at all as to see who the person was.
MS SAMUEL: Thank you, Sir. So I put it to you that you cannot admit or deny that the body that was blown up on that day was in fact the body of Oupa Ronald Madondo?
MR SCHOON: ...(not translated)
MR LAX: Are you having a problem with your headphones?
MR LAX: Ian there's a problem with the translation not coming through some of the time on the English. Would you just repeat that answer? As I recall you said that you weren't in a position to confirm the identity of the deceased or the identity of Madondo as you knew neither of them, or whether that was the person known as Scorpion. Have I recalled it correctly?
MR SCHOON: That is correct, Mr Chair, I do not know Madondo, I did not know him at all and I did not know Scorpion either. As far as I am concerned, it could have been either of the two or it could have been the same person. I would not be able to comment on that.
MS SAMUEL: No further questions.
NO FURTHER QUESTIONS BY MS SAMUEL
CHAIRPERSON: Thank you. That would conclude the evidence of the applicants present. We've already ruled that Mr Carr's evidence would be heard at a later stage. Representatives would be advised of the date and they could attend it if they want to, otherwise they could request us to send them a copy of the transcript and they could make further representation on the transcript. It may be that Mr Meyer will also be called to give evidence. If so, you will be advised of that and the same ruling would be applicable to his evidence, either we could send the transcription or you could attend the Hearing. Could we hear argument now, would that be possible?
MS VAN DER WALT: I was under the impression that the family would be called.
CHAIRPERSON: Yes, I believe Ms Samuel indicated yesterday that she would like to call a member of the family to oppose.
MR LAX: Can you hear? Can you hear us? Now can everybody hear? Can the Chairperson hear?
THOKOZILE MAVIS MADONDO: (sworn states)
EXAMINATION BY MS SAMUEL: Thank you, Mr Chairman. I refer the Commission to pages 100 to 106 of the bundle of documents being the affidavit of Thokozile Mavis Madondo.
Mrs Madondo you are opposing this application, the amnesty application of all these applicants, am I right?
ADV SANDI: Sorry, Ms Samuel, just one thing. Yesterday we were told that the sister was going to testify. I just want to find out the relationship between the witness and the deceased.
MS SAMUEL: I believe as to the identity of the deceased.
MR LAX: You're being asked, what is the relationship between this witness and the deceased?
MS SAMUEL: My apologies. Could you tell the Commission what was your relationship between yourself and the deceased, Mr Madondo?
MS MADONDO: I am his sister. I was the eldest and he was the third child in our family.
MS SAMUEL: You've seen some photographs in this bundle. Can you confirm that that was your brother?
MS MADONDO: Yes, I sent these photos to the TRC and they made copies of them.
MS SAMUEL: And he was known as Oupa Madondo, is that correct?
MS SAMUEL: Do you know what was his other calling name, whether he was called MK Scorpion?
MS MADONDO: Yes, I do know that name.
MS SAMUEL: And for all intents and purposes, you believe that the applicants are making application for amnesty arising out of the death of your brother, Mr Madondo?
MS SAMUEL: Now could you tell this Commission why you are opposing this application for amnesty?
MS MADONDO: I oppose it because on the day that he was arrested by the Protea police officers, he was on his way to Kliptown because he used to help my mother who was selling coal, so he was from home at Dube to Kliptown. On his way between Potchefstroom and Roodepoort Roads the police knocked him there. There was a person who was travelling in a bus next to his car who saw all of this and this person called me and informed me that he had seen two police vehicles, one parked in front of his car and one behind his car.
MS VAN DER WALT: ...(not translated) (Transcriber's translation - Did the witness witness this herself? It seems to me that it is hearsay evidence.)
CHAIRPERSON: She said she'd been told that and it's hearsay, but hearsay evidence could be admitted, it would only be about the value attached to it.
MS MADONDO: This person was in the bus and he saw when they pulled him out of the car because she informed me that one of the policemen went to the car, pulled him out of his car and then they drove off and she thought that they might have gone to the Moroka or Protea police stations. That is what she had told me on that morning. From there I went to the Protea police station. On arrival there I saw his car, a Chevrolet, I cannot remember the registration number but it started with BZK. I saw that car parked outside the police station. I went inside and requested to see Security Policemen, because those are the people who normally came to my home. They would come to look for him from there. They asked me who had informed me of his arrest and I told them that I had received an anonymous call and I could see his car parked outside and they informed me that they found the car abandoned in Potchefstroom Road. Because there were houses around there, they told me that he had run out of the car and run towards Kliptown and that they had not been able to arrest him. They informed me that they had then impounded the car because it appeared that it was stolen. That is what they told me, meanwhile they knew that he was in their possession.
MS SAMUEL: Now Ma'am, you've heard the evidence of all the applicants so far, do you believe they are telling the truth about what happened to your brother on that day?
MS MADONDO: I am just grateful that they came before this Committee to inform them of what happened to my brother because I was in the dark all along. That is what I appreciate, so that I have knowledge of what happened to him.
MS SAMUEL: But despite them denying that the body that was disposed of was that of your brother, do you still believe that despite those denials, the body that was disposed of, after hearing this evidence, are you convinced that the body that was disposed of, is in fact the body of your brother?
MS MADONDO: Yes, I do believe that because he wouldn't have disappeared for so long. I think that most of them have admitted that they did not know him and even the last applicant mentioned that he did not look at him. The people who knew him were van Vuuren and Visser and van Rooyen.
MS SAMUEL: No further questions.
NO FURTHER QUESTIONS BY MS SAMUEL
CROSS-EXAMINATION BY MR WILLS: Thank you, Mr Chairperson. Ms Madondo, just to place on record that my client, Mr Gold, does not deny that that body, that the person that was injured, was in fact your husband, he simply doesn't know whether or not it wasn't.
MR MADONDO: Not my husband, my brother.
MR WILLS: I'm sorry, your brother. Just referring to your affidavit on page 101, this - you refer in the first paragraph there to a Mr van Rooyen. It seems from the way you've been giving evidence that you know this person, he's come to your house before, is that right?
MS MADONDO: Before his disappearance even my son was expelled from school because of that van Rooyen. He went and informed the school that he came from a family of terrorists, so that after his standard 9 examinations, he was told not to return to school so van Rooyen came to my home and he inquired about us, just where we came from, before we resided at Dube. Therefore I know him very well. He used to come to my home and they would come to my home to harass us. They would inform us that as we would deny knowledge of his whereabouts, they would also do the same when we look for him.
MR WILLS: Do you know by chance the Christian name of this Mr van Rooyen, the first name and specifically do you know if it was Mr Martin van Rooyen?
MS MADONDO: Yes, I have a notebook that I left at home where his details are contained.
CHAIRPERSON: I think in all probability, he was at that station, I think its common cause, I don't know whether there were other van Rooyens.
MR WILLS: Thank you, Mr Chairperson. I have no further questions.
NO FURTHER QUESTIONS BY MR WILLS
MR BOOYENS: No questions thank you Mr Chairman.
CROSS-EXAMINATION BY MS VAN DER WALT: Ms Madondo, you made, you said in your affidavit on 7 May 1996, it appears on page 87 Mr Chairman, remember you said there you told the Human Rights Violation of that, do you remember that? I don't know whether your lawyer can show it to you? Page 87. Did you sign it? Look at the bottom of the page.
MS VAN DER WALT: Then also on page 104 of the bundle, there's another affidavit and I would just like to ask you whether that is correct. Is that your signature towards the end of that? And you have made that on the 18th of May 1998, is that correct?
MS VAN DER WALT: Was that after that was asked about by the Amnesty Committee, that you have done that and you've made that affidavit?
MS VAN DER WALT: You also said there in your evidence and during cross-examination, that your son was kicked out of the house, or out of the school rather because they told that he was coming from a family of terrorists, is that correct? Do you hear the translation? I'm not referring to the documentation, it is what you have said. Did you, a moment ago when that gentleman opposite you asked you, did you then say that he was kicked out of the school because of van Rooyen, who went to the school saying that he comes from a family of terrorists, I would like to know whether that is correct?
MR LAX: She's trying to hear the interpretation.
MR LAX: What happens is, the more you talk, the more they interpret for her and then she's got to wait till they've finished to answer. So just give her a chance to answer.
CHAIRPERSON: Could we have your answer then? Could you kindly listen? You've told us a few minutes ago that your son was expelled from the school because van Rooyen informed the school that your son associated with a family of terrorists?
MS MADONDO: Yes, that's correct.
MS VAN DER WALT: When did you become aware of the fact that your brother was involved with the ANC?
MS MADONDO: When he was working in my mother's coal yard, they will come together with Sipho Twala and Kholisi Twala and they will hide themselves in my mother's coal yard because they were no longer staying at Dube because police were looking for them and sometimes they were staying in Swaziland and whenever they infiltrated the country they would stay there in my mother's coal yard.
MS VAN DER WALT: In what year did you become aware of that?
MS MADONDO: In 1976, somewhere in 1976 he disappeared, in 1979 later.
MS VAN DER WALT: Prior to 1979, did you know that he was involved with the ANC?
MS MADONDO: I will repeat again. I say as from 1976 he was active and the Twala family, they had already left Dube Section in Soweto for Swaziland, therefore they will go to the Twala family and hide in Swaziland and come back with the Twala brothers.
MS VAN DER WALT: I would like to refer you to your affidavit, page 104, the last paragraph of that. It says
"During the time of his disappearance in 1979, I did not know that my brother was a member of the ANC or MK."
MS MADONDO: Yes, I do see that.
MS VAN DER WALT: Do you have any comment?
MS VAN DER WALT: What is missing now? (Transcriber’s translation - What is correct?)
MS SAMUEL: If I may just come in? Ma'am it seems like when you looked at this you just saw this for the first time. Do you confirm this or what you told the Commission that you ...(intervention)
CHAIRPERSON: Sorry Sir, but you'll get an opportunity to re-examine.
MS VAN DER WALT: What is your comment on that because it is clear that what you have said here is not exactly the same as what you are saying under oath today?
MS MADONDO: I think it was a mistake what is written here because I think when they were taking the statement, I was together with his girlfriend, because I had requested his girlfriend to accompany me, so we were making the statement together, or they were taking the statement from both of us.
MS VAN DER WALT: When was that?
MS MADONDO: Last year, somewhere in June, July, wintertime.
MS VAN DER WALT: I would like to put it to you that there is a statement here saying that this woman, Kunene, was she the fiancee of your brother? I am posing the question to you. Was Kunene the girlfriend of your brother?
MS MADONDO: Yes, she was. It is true.
MS VAN DER WALT: This statement was done on the 25th of March 1998 and it was done..
INTERPRETER: My apologies, I missed that.
MS VAN DER WALT: So your explanation is not clear.
CHAIRPERSON: The previous question about you couldn't follow the dates, could you just repeat those dates please?
MS VAN DER WALT: The dates ...(intervention)
CHAIRPERSON: Your microphone is not switched on.
MS VAN DER WALT: The dates on which the statement was made by the lady Kunene, was 25 March 1988 and the date on which this statement was made to which I refer, was made on 18 May 1998. What I'm putting to her is that the explanation as to what she's giving in her evidence is not correct according to what she has said under oath. Does she have any comment on that? No comment? Do you want to comment on that Madam? I do not know whether you hear the translation, there's no reaction.
MS MADONDO: Are you referring to the affidavit which I made in the police station? That's different. There's one which I've made in the police station and there's another one which I've made for the Truth Commission and that's why the dates aren't the same.
MR LAX: Ms Samuel, can you not keep showing her, because all you're doing is confusing her. Okay?
MR LAX: Mama, can you just listen to the questions? Stop looking at the papers. Just listen to the question. It's really a simple matter. You said to us in your testimony that Ms Kunene was with you when you made this statement and they took a statement from both of you at the same time. Now what Adv van der Walt is putting to you is that your statement which appears at page 104, which you have been referred to, was signed on the 18th of May 1998. What she's also saying to you is that Ms Kunene's statement, which appears at page 107 was signed on the 25th of March 1998. The one was signed at Orlando police station and the other one was signed before a Commissioner of Oaths, it's not clear, in Johannesburg somewhere and what she's therefore saying to you, that arising from that is that you couldn't have made the statements together.
MS SAMUEL: That's what she's ...(intervention)
MR LAX: Just listen to my question, Ms Samuel. Please, just hold it. I'm trying to explain to the witness so that she can get a clear understanding. Do you understand the question? She's saying because of the two dates being different, you could not have made these two statements at the same time and she's therefore asking you to comment on that, do you understand?
MS MADONDO: Yes I do understand.
MS MADONDO: After I've inquired about Nunke about Sipho Twala and Gen Nyanda, I was told that they were ANC members, that's why I'm saying today they were ANC members, since the time they were hiding because they were MK members.
MR LAX: The question is really - you haven't answered the question. Okay. All you're being asked to explain, why you said that Kunene made a statement with you, together with you in May 1998 when in fact her statement which appears in these papers, is dated in March 1998. Have I put it correctly?
MS VAN DER WALT: I would just like to come back to that. Page 110, on that page there is a statement made on 18/5 by Ms Kunene. There are two statements which also were made before the Committee. I refer you to page 110. I am making a note of that now.
MR LAX: Okay, sorry, mine is numbered 109, it starts at.
MS VAN DER WALT: That is where it starts, yes. I just have to put it to you that there was another statement made by Kunene on the same day, before the Committee and another one, the first one before the police, so in other words were you present when Kunene made the other statement, the one on page 109 and 110? Were you in each other's presence when that was done?
CHAIRPERSON: Yes, I think she's already testified that at some stage they were both present, so it seems as though they were in each other's presence on the 18th of May 1998.
MS VAN DER WALT: You have a version here before the Committee that your brother got lost on his way between Kliptown and Potchefstroom, when did that happen?
MS MADONDO: It was in 1979, between October and November but late 79. That's when he disappeared.
MS VAN DER WALT: And then after that you never saw him again?
MS VAN DER WALT: You personally haven't witnessed this, but lately you saw his car outside the Protea police station, is that true?
MS MADONDO: Yes, that's correct.
MS VAN DER WALT: And how did you know it was his vehicle?
MS MADONDO: I knew his car. I used to ride in his car. It was his car.
MS VAN DER WALT: Would you just afford me a moment please? Thank you. You say that you saw the car and you also said in your statement, the same registration number that you mention in your evidence here, that you knew the car because the number started with BZK, is that correct? But that could not be in 1979, these numbers came into use later only. Is that correct? So this incident that you speak of, did it happen later?
MS MADONDO: No. No it wasn't later.
MS VAN DER WALT: But something must be wrong, because then this could not be the right registration number. Is that correct? If this is the registration number, then this could not have taken place in 1979, is that correct? Are you in agreement?
MS MADONDO: I don't know. I'm not sure whether it was TJ, but what I'm certain of, the numbers were like I said, I don't know whether they were still using TJ in 1979.
MS VAN DER WALT: I want to refer you to page 132 of the bundle. Your brother's name was Oupa Madondo, is that correct? Can you remember when he was born?
MS VAN DER WALT: If you look at page 134, then you see the computer printout where your bother's date of birth is correct there. Do you see that?
MS VAN DER WALT: No translation. (Transcriber's translation - Can you remember which school he attended?)
I see you are looking at page 134 and it says Musi High School, is that correct?
MS MADONDO: Yes, it's in Pimville.
MS VAN DER WALT: Yes and on page 135 it was recorded that he was a lorry driver from 1968, is that correct?
MS VAN DER WALT: It also appears from your affidavit that he was a driver working for your mother apparently, is that correct?
MS MADONDO: Yes, that's correct.
MS VAN DER WALT: And your brother left the country for military training, is that correct?
MS VAN DER WALT: I would like to refer you to page 137 and it appears from that that your brother, because that was placed by this Committee in the bundle, it shows there that your brother in the 9th month of 78 went to Kibasch in Angola where he got military training. Do you know of that?
MS MADONDO: Yes, I do know that.
MS VAN DER WALT: I would like to put it to you that the fifth line from the top it is said that
"G T did not see him again"
but in 1983, the 7th month, there's the name September Sidebe who identified him on a photo. You will not know about that, but what I want to put to you is that you are not able to tell this Committee that this Scorpion, to whom my clients refer, is the same person as Oupa Madondo, because here it appears that Oupa Madondo was still alive in 1983. Would you like to comment on that?
CHAIRPERSON: Is that the only inference that you can draw from that? I would like to propose then that one can infer from this that September Sidebe maybe got information that Oupa was working with the police and that he, at that stage, showed a photograph, but that does not say that that person was still alive then. They got information such a person worked with the police, now he shows a photo and says that because that person possibly was a collaborator of the police, that he must be eliminated.
MS VAN DER WALT: With respect, Mr Chair, if one looks at this print-out on page 137 in total, then with respect I would like to put it to you that he should still have been alive because an instruction was given there. I think the ANC was quite up to date with its records and if he had been dead by then, the ANC would have known it especially if he was one of their members and Oupa Madondo, if he had died in 1980, the ANC would have known it and then they would not have given such an instruction, especially seen in the light of the position of Sidebe. He was one of the Commanders of the ANC and he would have been up to date.
MR LAX: With respect, the only inference one can draw is that the ANC thought he was alive and therefore wanted him killed and that is the fairest thing one can put to the witness is that from here you can draw the inference that the ANC thought he was alive, because clearly they wouldn't have tried to eliminate someone who was dead, but to say that the man had been missing from 1979 as she suggests and that they necessarily knew about that, well then we're far in the realms of speculation. I think the fairest way to put it to the witness is, from this police file it appears the ANC thought he was still alive in 1983, does she have a comment to make on that. I think that would be the fairest way to put the question.
MS VAN DER WALT: I accept it as you put it. I say with respect that I see it otherwise, but I want to ask, what do you think of these details here on the police printout?
MS MADONDO: I dispute this because in 1981 when my mother was still alive, my mother sent me to Swaziland to go and look for him in the Twala family. It was in 1981, March. When I arrived in Swaziland I only found his belongings, his clothes and everything and they told me ever since he left, they don't know where he was. I found his clothes, I didn't take them, but they didn't know his whereabouts and my mother passed away after discovering that we can't trace him back. I went in 1981 March to Swaziland to look for him.
MS VAN DER WALT: You see, Ma'am, I saw this statement. I'm very grateful that you are telling the Committee this because it is also to me a further indication because if your brother, if that man at the dam and in Soweto was your brother, what would his clothing be ding in Swaziland because this information goes further and strengthens my viewpoint that your brother was still alive at that point and that he got, when he got training, he moved between Swaziland, are you saying that he did not work in Swaziland at all?
MS MADONDO: When I left for Swaziland in 1981 it was because my mother realised that he never disappeared for such a long time, even though they were outside. Sometimes he would write letters and give to other comrades who were infiltrating the country to give it to my mother, but then this time he disappeared with no contact at all, then my mother realised that something was wrong. I went to Protea and I found his car and they said they didn't know where he was because he ran away and they just took his car and that alone, he had clothes in Swaziland because he would infiltrate from Swaziland to South Africa and back to Swaziland.
MS VAN DER WALT: You must have heard in the past couple of days about all the deeds that the ANC committed, all the people that were killed especially in Quatro camp, all the people that they know that worked with the Security Police. Did you hear that these people had been killed?
MS MADONDO: The only thing I know about my brother is that he was recruiting for ANC. He will help them to go to exile, not that he was helping to kill anyone, but he was recruiting for ANC and helped comrades to leave the country and to come back.
MS VAN DER WALT: All I want to know from you and I want to hear whether you heard of it is that the ANC killed people in the Quatro camp, especially people that they knew worked with Security Police.
MS MADONDO: Yes, I heard about such things but my brother wasn't in Angola. In 1979 he wasn't in Angola.
MS VAN DER WALT: How do you know that?
MS MADONDO: He left his girlfriend that morning and he was going to Kliptown to my mother.
MS VAN DER WALT: So that's all you can say. You do not know whether he was in Angola. You don't know where he was at all except that he was on his way to his mother, that's all that you can say? Is that correct?
MS MADONDO: No, I don't know anything about him working with police. He wasn't going to collaborate with the police because at the same time he was hiding ANC people in my mother's coal yard, so if he was collaborating with the police, how was he going to do that because all those people he was helping, they were never caught by the police.
MS VAN DER WALT: Madam, it appears clearly from all the statements before the Committee, your first statement on page 87, that you believe that around October 79 he disappeared and you, in your statement on page 104, you say that possibly he disappeared in November 79. Ms Kunene said that she saw him on the 19th of September 1979 for the last time. What do you say of this difference between the dates?
MS MADONDO: It has been a long time, that is why we cannot be specific whether October, November, September, one cannot recall the exact date, we are just estimating. It has been 20 years since he disappeared and I'm telling you that I received a telephone call and the SP's hit me after I went to see them, because they said to me they wanted my brother and they said to me if I was claiming that that car was my brother's car then I must tell them where my brother was and they were lying because they knew where he was.
CHAIRPERSON: I think we've heard the evidence. I don't think we'll be able to shed more light on it at this stage. It's clear all the witnesses complained that it's more than 20 years ago. We appreciate that and it is common cause that her brother was at some time arrested by the police and held under Section 6. According to the papers before us he was released and after that we don't know what happened to him. There's no - nobody can say what happened to Oupa, neither Mr Visser nor the witness here, so I think that's as far as we can go with this.
MS VAN DER WALT: I have nothing further.
NO FURTHER QUESTIONS BY MS VAN DER WALT
MS MADONDO: I would like to explain something to the Chairman. After he was released from prison, he went and saw the attorneys to sue the police. The attorney was David Botha, he's now late and Priscilla Jana. We also submitted a statement and when I asked Priscilla Jana about the files and we were told that another lawyer took over and those files were destroyed. Just before he was going to appear in court, the police who assaulted him, that's when he disappeared because they didn't want to meet him in court because they had tortured him and he had opened a case against them, that's why they took him and killed him.
CHAIRPERSON: When did you go to inquire at the police, when he was arrested the first time and held under Section 6, or when did you go to inquire about his arrest?
MS MADONDO: On that morning after I received a call, I went to Protea police station. It was after the first arrest and after he had opened a case against the police who assaulted him, that's when I went to the Protea police station and I found the car he was driving in the morning. He just left his girlfriend's place and then he left for Kliptown, that's when they arrested him and the police told me that they just found the car and he had run away. It was not possible for him to do that.
CHAIRPERSON: How many times was he arrested?
MS MADONDO: After he was arrested, he disappeared.
CHAIRPERSON: Yes, I've only asked you how many times are you aware of that he's been arrested by the police?
CHAIRPERSON: Was he many times arrested?
MS MADONDO: Yes and they will release him but in 1979 they never released him.
MS VAN DER WALT: I think it is perhaps important, it does appear in the bundle, but I would just like, I put it chronologically together this morning and I would just like to put it on record, according to your question now, that it appears from the bundle page 130, that Oupa Madondo on 28/7/1979, was arrested and furthermore it appears that while he...(intervention)
CHAIRPERSON: Could you go a little bit slower so that they could interpret it in the meantime and we could write down what you say? Page 131?
MS VAN DER WALT: On page 130, Oupa Madondo was arrested, on that page 130 that was on the 28th of the 7th month 1979. Then the assault charge was laid on page 124, it appears on 4 September 1979 where he complained that on the 28th, 29th July and on the 31st August he was assaulted. His application for release appears on page 122. That is the fact that he escaped in terms of Section 61. I would just like to refer you to the fact that the date does not appear but it can only be the 9th month. Why I say that, if one looks at the Section 6, it appears on page 121, then the date appears to be the 18th of September, that this application has to be just prior to this, but it appears to be in September and then on the 18th of the ninth month, he was released from the police service. I was just trying to explain the dates to you, thank you.
CHAIRPERSON: On page 123 it says that
"It might be the 20th of September that assault was already investigated and brought under the attention of this office and investigated."
MS VAN DER WALT: It also appears to have been during that time and then afterwards there was a subsequent letter saying that there was a witness, that was on page 119, on 20/11/79 there was a letter to the Secretary of Justice to say that there was no witness to substantiate these allegations.
CHAIRPERSON: Any re-examination, Ms Samuel?
NO RE-EXAMINATION BY MS SAMUEL
MR MAPOMA: Yes, Chairperson, I've got some questions.
CROSS-EXAMINATION BY MR MAPOMA: Ma'am is it your evidence that prior to his disappearance the deceased was arrested and detained?
MR MAPOMA: Now during that unrest, after his release, is it your evidence that he laid some charges against the police?
MR MAPOMA: Do you remember what year was that perhaps?
MR MAPOMA: Do you remember how long was he detained before he got released?
MS MADONDO: I don't remember whether it was a month or two, but it was a long time. I'm not sure whether it was a month or more than one month.
MR MAPOMA: Now Priscilla Jana, the lawyer, what did she do? Did she sue the police or what was her role perhaps, if you understand?
MS MADONDO: She was suing the police who tortured him. She had opened the case against the police who assaulted him. At the time she was a political attorney.
MR MAPOMA: Are there some individual police officers who were alleged to have been involved in those assaults that you know of?
MS MADONDO: He wrote a letter to the Attorney-General. I don't remember the names of the police. He mentioned them but I don't remember them.
MR MAPOMA: In your evidence in chief you said that the deceased knew van Rooyen and Visser.
MS MADONDO: Yes and van Vuuren, these three they actually frequented our home. We all knew them even my family members, they knew them because they frequented our home.
MR MAPOMA: Now those police whom you've just mentioned, did their names feature or not, to your knowledge or recollection, in the case that was opened against police prior to his disappearance?
MS MADONDO: I don't remember, it has been a long time, but all I know is that he had written down. I wasn't there when he was tortured but he did tell us that he was tortured by the police and he wrote the names down.
MR MAPOMA: And is it your evidence that his arrest up till his disappearance, coincided with the date of the trial against those police?
MR MAPOMA: Thank you Chairperson I have no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: When was this date of his trial?
MS MADONDO: I don't remember, I'll just estimate. I think it was in October, November.
CHAIRPERSON: Was there a trial date set already?
MS MADONDO: Even though the date was set, I think that they had already started discussing ...(end of tape)
then you go to court, then they will give them another date.
CHAIRPERSON: There must have been accused who had been arrested and then a postponement would follow. Who were the accused that were arrested and brought before the court?
MS MADONDO: I didn't attend the court case. For all I know is that he had opened a case against the police. I didn't go to any court and he disappeared after he had opened a case against the police.
MR LAX: Ms Madondo, do you know if this was a criminal case or a civil case or both? Do you know what Priscilla Jana actually did?
MS MADONDO: I know that he had been assaulted so he had opened a case against that because they had tortured him and they also put a snake in his neck, around his neck.
MR LAX: Okay. In your statement at page 102 you talk about seeing a policeman who worked at John Vorster Square but you don't say anything about what that man said to you. The statement is silent as to what the relevance of that person was. What information did that person give you? Why do you mention him there in your statement? Shall I read you what it says there and then it can be translated for you. It says
"Thereafter I saw one of the policemen whom I knew to be working at John Vorster Square, now known at Johannesburg Police Station. Apparently I had a friend who worked at the Magistrate's court by the name of Thomas and that is how I knew this policeman."
Why did you insert that in your statement? What were you trying to tell whoever you were making the statement for?
MS MADONDO: When my brother was arrested, we usually gave food to Thomas to give it to my brother. When I saw him he told me that my brother's car was in John Vorster Square and I went there and I found his car there. After they've taken the car from Protea police station, they took us to John Vorster Square because usually when I go to Home Affairs, to go to collect maintenance or Department of Labour, I will go past John Vorster Square.
MR LAX: But of course you don't know where your brother might have been at that time?
MR LAX: And then one last thing, you said you went to Gaberone to look for your brother in this statement, this was after you went to Swaziland? Do you remember going there?
MR LAX: When was that approximately?
MS MADONDO: I think I went to Gaberone in 1983, that's when they arrested me and took my passport, the police arrested me.
MR LAX: Did you actually get to Gaberone or were you arrested before you could cross the border?
MS MADONDO: I went to Gaberone. I used the Zeerust border gate and coming back I used the other border gate and when I arrived at ...(indistinct) police asked me where I was coming, I told them and then they communicated with the other police in the police station and they were told that I am a sister to my late brother and when they asked me I told them yes I was and then they arrested me.
MR LAX: Now, what did you do at Gaberone? Did you make inquiries from ANC cadres there or comrades there?
MS MADONDO: Yes exactly, that's what I did and I only discovered that no-one knew his whereabouts.
ADV SANDI: Sorry Mr Lax are you going to be asking about something else?
MR LAX: No, no I'm finished now.
ADV SANDI: Do you remember who these people you were making inquiries from in Gaberone?
MS MADONDO: De Boor is an MK, he's now working in a military camp called Lace.
ADV SANDI: Did they say to you - are you saying these people you were inquiring from said they've no idea at all as to where your brother may have gone to, or what could have happened to him?
MS MADONDO: They said they didn't know where he was.
ADV SANDI: Did they perhaps indicate to you as to when they had seen him last?
MS MADONDO: No, they didn't tell me when they saw him last, they only told me that ever since he left for South Africa they didn't see him again.
ADV SANDI: Did you tell them that he had been arrested by the police and his car taken away by the police? Did you tell them about that incident?
MS MADONDO: I knew that police usually arrested him and released him, therefore I thought maybe they had released him that's why I went to Gaberone and looked for him but then they didn't know him.
ADV SANDI: After your brother had disappeared, did you have any visits or inquiries by the police coming to your house to look for him or any contact like such?
MS MADONDO: Yes. Protea police used to come, some they will come by Casspir and they would just playing with our minds because they knew where he was.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: You may be excused, or any questions Ms Samuel?
CHAIRPERSON: That will be the evidence from the applicant.
CHAIRPERSON: You only wanted to dodge the rain so, who would be first?
MR BOOYENS: I will be Mr Chairman, due to the fact that my client testified first.
MR BOOYENS IN ARGUMENT: Mr Chairman, the position of Mr van Zyl in this regard, I will address the Committee on the basis that as far as we can see in Mr van Zyl's position, it makes no difference to his position whether Scorpion was Madondo or was not Madondo. It makes no difference to Mr van Zyl's position, so I will accept for purposes of argument that the identity of Scorpion has been established. Mr van Zyl is in any case not in a position to say to you that he can state as a fact it was or it wasn't the man.
Now when my learned friend, not the one who is present today, the one who appeared yesterday, was asked on what basis they opposed the application of Mr van Zyl, I must confess I had a bit of difficulty in understanding what the exact nature of - sorry as one gets older these things give you problems - I understood the basis of the objection to have been something like that he wasn't killed in action, I think that's what she said. Now I don't understand what really the nature of the position was and in fact when the relative today gave testimony, she in fact, although obviously the Committee is not bound by what she said, but she in fact said that she is glad that they came out with the truth.
I would submit that as far as Mr van Zyl is concerned in any case, that his evidence was not shown to be unreliable or untruthful, there was no evidence really to gainsay his evidence. There are certain contradictions between the various applicants. Mr Chairman, if the Committee members and I were to tell a story about something that happened two months ago, never mind 20 years ago, I would be mildly surprised if there are not certain contradictions.
CHAIRPERSON: You shouldn't ...(indistinct) the Committee members, they may forget what they've heard two weeks ago.
MR BOOYENS: Learned Gentlemen like the Committee Members confess something like that, Mr Chairman - Mr Chairman, all I'm saying is the contradictions that there are is, was it Mabazwana or Pongola, so does it matter?
CHAIRPERSON: Yes, I think one should look at the full disclosure of the material facts and it's material that they've killed somebody, it's material how they killed him, what they did with the body, what was the reason for the killing, whether they killed him 5 kilometres this side of Josini or the other side of Josini, wouldn't really in this specific case, make a difference.
MR BOOYENS: Or whether they destroyed the body in one or two explosions also doesn't make - it seems that Mr van Zyl, he conceded that he might be wrong and it seems, listening to the other evidence, that the probability is that there was one explosion. But I would submit that that is neither here nor there. It's not an exculpatory type of statement that he's making when he says there were two explosions. In fact if one looks at it objectively, it is in fact worse for him if there were... (intervention)
CHAIRPERSON: ...(indistinct - mike not on)
MR BOOYENS: Yes, it's worse because on the second explosion it would certainly have been a much more grisly experience, so I would submit that that fact one certainly cannot use Mr van Zyl, I would respectfully submit the probabilities are that he honestly and bona fide, when he made his application, he honestly and bona fide believed that there were two explosions but like he said yesterday, it's 20 years ago, I can make a mistake. Mr Chairman, as far as the - so I would respectfully submit that it cannot be said on any basis that Mr van Zyl did not make a full disclosure of the material and the relevant facts.
Now if we come to his position in so far as to the "why", in the first place he is contacted by Col Visser whom he had known from before, who tells him: "We've got a problem with a man who is an MK double agent, MK then police agent, now double agent, who's threatening our situation and tells him that Head Office has in fact given an instruction that the man must be eliminated and his body must be destroyed. So although the instruction is not given directly to van Zyl, to van Zyl is: "I've got an instruction, will you help me carry it out?" and van Zyl, listening to what is being told, says that he would assist Col Visser.
The position is that van Zyl there makes a decision, not as to the merits or the demerits of the order because the order has been given and he is not in a position to check the intelligence and as Commissioner Sandi has so clearly pointed out on a number of occasions, we have heard enough evidence, the Committee has heard enough evidence, that in the hierarchy these people were working, if a Colonel tells a Lieutenant: "This is an order from Head Office", you do not go back as a Lieutenant, sit back and say: "But wait a bit, let me just check that intelligence that they've got, is it correct, is this reliable?" It's just not the way it worked. He says he knew Visser. He says he regarded him as reliable and he had no reason to disbelieve Visser when Visser told him that: "I've got instructions from Head Office, this double agent must be killed." And van Zyl being as Visser described him, a loyal policeman and fighting for the cause at that stage Mr Chairman and I didn't bore the Committee once again with leading all the evidence that you have heard ad nauseam, about how they were brainwashed and so on, I think one only needs to look at the Cronje decisions and I think that what the full Committee there found as to the background of the entire struggle and the entire war and so on, clearly this is the background against which all these offences were committed and I would ask the Committee to take that factor into account. So Cronje - van Zyl was acting bona fide at the time. He believed that he was acting in opposing the struggle being waged against the then government of South Africa. He was a member of the Security Forces coming from a certain background and for that reason, Mr Chairman, I would respectfully submit that in so far as his position is concerned, seeing that there was an order, although the order wasn't given directly to him, but there was an order that it must be done, that he falls squarely within the ambit of those who qualify for amnesty and I would respectfully submit, with reference to Section 20, 21 (a) that (a) his application complies, that the act was associated with a political objective, Section (b) and that there can be no argument that he didn't make a full disclosure of the facts as well as he could remember them. He is, in so far as the political objective is concerned, he is in the position of Section 20 (ii) (b), as an employee of the State, committed bona fide with the object of countering or resisting the struggle or at the very worst for him, he is in the position of Section (f) that being a person referred to paragraphs (b) (c) and (d) who on reasonable grounds believed that he or she was acting in the cause and scope of his duties and within the scope of his express or implied authority. It cannot be suggested that it would have been unreasonable for him to rely on a senior officer and even if the Committee may have a doubt, which I submit the Committee should not have, that he qualifies in terms of (ii) (b), I would in any case submit that he clearly qualifies within the ambit of (ii) (f).
Mr Chairman, in so far as what he should be granted amnesty for is concerned, I would respectfully submit that he should be granted amnesty for the murder of the deceased in this matter.
CHAIRPERSON: If amnesty is given, I'm only referring to orders made in other matters recently, for any offence flowing, for any offence or delict flowing from the death of a person on such and such a date, at or near Josini and then it would include even the disposal of the body, but we could mention that inter alia as one of the offences connected therewith. ...(mike not on) the evidence given before us.
MR BOOYENS: Mr Chairman, I would submit that that would be the appropriate order to make, because otherwise if ...(intervention)
CHAIRPERSON: That wouldn't on the other hand include anything that's not been revealed before us.
MR BOOYENS: Mr Chairman, yes, I would then ask for an order, any offence or delict associated with the killing of and I would ask, and this is just ex abundante because I don't know what other evidence, the killing of, the death of O R Madondo or a person known as MK Scorpion, which killing occurred near Josini dam during 1980 because we haven't even got certainty unfortunately as far as the date is concerned.
CHAIRPERSON: The farm was mentioned as being Leeuspoort.
MR BOOYENS: Yes, that's what Mr Schoon said, but I'm not so sure if that is indeed the same farm because, well, ...(intervention) CHAIRPERSON: I think we will be able to describe the vicinity so that it could be identified and not be confused with another incident.
MR BOOYENS: The only reason why I say Leeuspoort, I see the reference to Leeuspoort is actually in connection with, at page 37, it's the farm Leeuspoort, in connection with the Ngome ... Is it the same? I'm informed by my learned friend, Ms van der Walt that in fact it's the same farm, so Leeuspoort, I think, would be safe. The farm Leeuspoort in the district of Ngotje, near the Josini dam. I think that would cover it Mr Chairman.
Unless there's something specific that the members of the Committee would like to hear me, those are the submission I wish to make. If necessary, Mr Chairman, I would, depending on what other evidence might be forthcoming, it may be necessary for us to appear again. I do not foresee that as a possibility at this stage, and if necessary we would submit further argument, if we think anything else that directly relates to the position of my client is concerned. Those are my submissions, Mr Chairman.
MR WILLS IN ARGUMENT: Thank you, Mr Chairperson.
I submit that my client, Mr Gold, also satisfies the requirements as contained in Section 20 (i) of the Act in that first of all his application complies with the requirements of the Act, that the Act was an act committed with a political objective, committed in the course of the conflicts of the past and that the applicant has made a full disclosure. He too falls under Section (ii) (b) in that he was an employee of the State, acting within the course and duties or within the scope of his express authority and the act was directed against a known liberation movement at the time. As regards the aspect of whether or not the act was bona fide, I think that's clear and it's amply described in his viva voce evidence, but succinctly in paragraph 20 (i) of his affidavit on page 12 where he indicates how he was totally convinced that his role in operating against the ANC and its communist influence, was the right thing for any loyal South African to do.
I don't think, with respect, that there can be any question about whether or not he should have followed the instruction given to him by his superior, the then Lieutenant van Zyl, particularly in the light of the fact that at a later stage there was even a more senior officer present, which would have, from his perspective, as he indicated, corroborated the fact that that decision came from a higher authority and particularly in view of the fact that my client had a relatively junior rank, in the circumstances.
In any event, I submit that should the Committee find that he doesn't meet that criteria, which I submit it should, with respect, he therefore would still fall into the category of Section 20 (ii) (f) where he was acting on reasonable grounds. I submit that is quite clear.
His political motivation, it was quite clear, is based on an order and that hasn't been disputed. As regards the full disclosure, he has made a detailed affidavit and indicated to the best of his knowledge, taking into account this incident occurred 20 years ago, he's relayed every material fact. I think what is significant in this application is the Committee can see that whilst the parties have been represented by different counsel, that they largely corroborate each other and clearly that I think supports the fact that they are all ...(intervention)
CHAIRPERSON: Are you suggesting it's not negotiated.
MR WILLS: Yes, that's exactly what I'm saying. What I'm saying, if I could, the evidence in it's essential, in other words material, the event as described, the material facts are corroborative in every respect. There were incidents where my client was obviously reminded or given more detail and his version changed slightly as a result of him, (1) having read the other persons' versions prior to coming here and also hearing the viva voce evidence of the first applicant, but I submit that essentially it stayed the same throughout and as a result of that, I submit that there can be no finding made against his credibility. There's no suggestion whatsoever, Chairperson, that this act was done for personal gain, or that it was done out of personal malice or spite directed against the victim. I submit on two legs, firstly the fact that he was given an order, but secondly the fact that all he did was essentially blew up the body, that the issue of proportionality doesn't even come into consideration at this point.
I submit my client would - he has been involved in the murder of this person, although not directly, clearly there was a common purpose, he knew what was going to happen to this person when he was alive and I submit that Adv Booyens' suggestions as regards the order, I concur with completely. I think that it's fair to say and it's justified a decision to the effect that it involves any incident or any crime flowing from the murder of a Mr Madondo, or a person known as MK Scorpion, which occurred during 1980 in this particular location.
Like Mr Booyens we have nothing to say as regards, or nothing to gain or lose as regards the actual identity of the body and so I cannot make any submissions in that regard. It was obviously immaterial as regards my client's involvement, as to who that person was. It could have been anyone, from his point of view.
CHAIRPERSON: Could you perhaps assist us? We must make an order recommending whether people should be considered as victims in terms of the Act. We would only be in a position to do so, I think, unless you could help me, that I'm wrong in this, if we could find on the probability that the person killed was related to the family here and was in fact Oupa Madondo, the brother, if there's no room for finding that on the probability, can we make a recommendation on other grounds perhaps?
MR WILLS: Mr Chairperson, I think that clearly, as regards the scope of this application, the only time one would be able to make a finding in regard to this particular witness as a victim, would be if you related, if you made a finding on the probabilities that the deceased person was in fact related to this person, I submit that the probabilities are for her in this instance. I submit that it's just highly improbable that there would be an informer by the name of Martin van Rooyen who went looking for his informer at her house after the event, particularly in the light of Mr Visser's evidence, that he disposed of this person in circumstances where no other member of his Security Branch was informed and so he hid it from them. So it's just too coincidental for me now that you've directly asked me this question, to sort of imagine that this van Rooyen would pitch up at this house at about this time, looking for this particular person. Obviously this issue isn't finalised and I haven't applied my mind fully to the issue, because obviously it doesn't impact directly on my client.
However, should you wish for argument on that, I submit I'd only be in a position to do that after the evidence of, I believe, Mr Meyer and when the evidence is finalised.
CHAIRPERSON: Yes, no I only asked for assistance, I realise that it is not within the ambit of your brief actually. Could I also inquire, I've asked yesterday whether there could be some arrangements in order to point out the scene to the people present. I don't know whether you people had the opportunity to discuss it or not?
MR WILLS: I have spoken to my client about it. He would be able to take any person to the exact location of the site and he'd be very willing to help in that regard. In fact his version is quite clear that he would like to help the victim actively to find that spot, should that be her desire.
MS VAN DER WALT: I think, Honourable Chairperson, you do not necessarily need to hear me. The seniors have spoken already.
CHAIRPERSON: Would it make any difference to the application of your client if it were indeed Oupa who was killed?
MS VAN DER WALT IN ARGUMENT: If the Honourable Committee is to accept Mr Visser's version that the person was a double agent and that the situation was of such a nature that he
couldn't do anything but that, then it would make no difference. However what does scare me is that the Committee may, I do not say this is the case, but there is no evidence, but I just don't want - the suggestion was made that due to the assault, something had happened and I would like really to rule that out totally, especially if one looks at Mr Gold's evidence and what he has expressed towards you, as to how he felt, I would like to say to you that if the person in any way was assaulted so badly, I do not say there is no such evidence, that they had to get rid of him, then Mr Gold would have been the first person to tell the Committee about it. If you rule out that, then it would make no difference to the application of my client.
CHAIRPERSON: To what extent do you rely on the fact that he too also has done something that he was told to do?
MS VAN DER WALT: I most definitely support it. In fact his evidence is of such a nature that he has discussed it with Brig Goosen and that he told him to do so. That is according to the evidence from all the applications and that is how it is discussed and I would like to put it to you that he has never done it of his own accord, he was told to do so.
CHAIRPERSON: ...(indistinct - mike not on)
MS VAN DER WALT: My sympathies go to the family. I think it must have been a very traumatic experience if you didn't know what happened to a family member. However, what does bother me with regard to this whole aspect, I think if one looks into all the statements of the family, it points to a degree of payment, because there are family members involved and children involved. The documents are referred to, towards the end, the print-outs on page 137 and the fact that what was very interesting in terms of Mr Madondo was the fact that the registration plates, that BK something, she refers to it in her statement that she makes to Priscilla Jana, she repeats those letters here again and all of us know that in 1979 those number plates never existed. Then read together with what is stated on page 137, there has to be doubt in one's mind as to what really happened to Oupa Madondo, because what would the police do with Oupa Madondo since September 1979 until, let us accept my client's version that it must have been the second part of 1980, I think Mr van Zyl also linked it to certain other cases.
CHAIRPERSON: He linked it to one April.
MS VAN DER WALT: Even one April is a long time and somewhere something must have gone wrong because the implication is that Oupa Madondo was not the ordinary illiterate prisoner because he knew about his rights, he complained at the Magistrate and something must have shown there. If the police were to have kept him for such a long time, they must have kept him somewhere and there was nothing in the evidence to speak against this and the fact that there was a ruling on one day and the next day we had the operation. That is what I would like to say as regards the application or the fact that the family is against the application. That is what it is all about. But like you have said, if my client's version is accepted as to why this was done, then it would make no difference.
MR LAX: Ms van der Walt how about the possibility that all of them were actually slightly wrong and that it happened late 1979? Mr Schoon thought it was, it happened in the very early eighties. If it happened at that stage, your problem is actually non-existent because then he was detained for a long time.
MS VAN DER WALT: Yes, Sir, I do listen to you, but if you look at the application then it is quite clear from it that my two clients were not in contact with Mr Gold at all and nor with Mr van Zyl. The applications were done by different people in different parts of the country and then the possibility does exist that all of them would say 1980 in their applications, especially if you look at Mr van Zyl and I would like to draw the attention of the Committee to the fact that I think he was a remarkable witness and my client really could not remember, but Mr van Zyl in that regard was a superb witness, because those things he could recall, he did so and he coupled them to certain instances and times and then I would accept that it was in 1980. I don't think all of them would make the same mistake.
Further, I don't know whether you would like to hear anything else from me as regards this aspect.
CHAIRPERSON: I think one does accept the problem that the witnesses had with regard to time and even the family of, they even have indicated that this happened years ago and one couldn't expect one to remember all these dates unless something really got stuck in one's mind.
MS VAN DER WALT: That is true. I did speak this morning to the other legal representatives. It was not placed on record, I should have done so, but Mr Visser had a brain operation. I have handled two applications of his which were very good. I do not always want to come up with excuses which is why I haven't placed it. Next time I will remember about them, but really I felt sorry for him because he simply couldn't remember and I do know that the photographs, like I have said, were faxed to us. We never really saw the originals, but there is no real reason as to why he should shy away if this were to be Oupa Madondo. I think he really cannot remember, he cannot remember the person's name and as to what is in this bundle, he cannot identify him according to that information. I would furthermore like to say to you that he does apply with the law. I do believe that his evidence was convincing. I must say that it sounds very strict. I should try to say in English that he did reveal all the facts satisfactorily and that he would adhere to Section 20 (ii) (b) as well as (f). I would then, what you have mentioned to Mr Booyens, in terms of that I have also asked you that should you consider to give amnesty to both him and Mr Schoon, that they should receive amnesty as to any murder of that person. Perhaps that can be cleared with Mr Meyer later on. I haven't said anything about Mr Schoon. I think his part was of such a nature that as he was saying here, it was confirmed now, therefore I don't think there was anything else that I can elaborate on as regards his evidence. Thank you very much.
MS SAMUEL IN ARGUMENT: Thank you Mr Chairman. Unfortunately I'm not in a position to argue this matter. May I be granted an indulgence in regard to the argument of the matter to be held over until we have listened to Mr Meyer who in fact positively identified the deceased as being Scorpion or alternatively Oupa Madondo. Also if Mr Visser would be given an opportunity, I'm sure an adjournment, if granted, will give Mr Visser an opportunity to look at proper photos of the deceased and maybe then it will jog his memory as to whether we are talking about the same Mr Madondo, alias Scorpion. Also what is
very important is the evidence of Mr Des Carr. I think only after we have listened to Mr Des Carr's evidence will we be representing the victims only, the victims will be in a position to argue for or against the granting of amnesty.
CHAIRPERSON: So at this stage you're not saying you're opposing and you are not saying you're not opposing.
MS SAMUEL: At this stage we are uncertain, at this stage looking at the evidence we are uncertain as to whose application we should in fact oppose because clearly there are some persons here who did not even know, they just merely followed instructions like the blowing up of the body. One cannot reasonably expect to oppose such an application because it seemed like it was from higher authority and they made full disclosure. However, in regard to Mr Visser's application, there might definitely be reason to oppose his application. In the circumstances, only after listening to all the evidence will we be able to make some certain decision as to our application.
CHAIRPERSON: Okay. I'll note it. Mr Mapoma, any suggestions at this stage?
MR MAPOMA IN ARGUMENT: Chairperson I wouldn't if I were to argue, oppose the applications of the other applicants except for Mr Visser's application, for the reason, Chairperson, in particular that the identity of Oupa Madondo, I submit is of vital importance on his application and at this point there still remains some testimonies to be tendered in establishing exactly whether Oupa Madondo was the Scorpion who was killed. I am saying that, Chairperson, that the identity of Madondo is critical to the application of Mr Visser because if it can be established that Madondo was in fact, or most probably, was the Scorpion who was killed, then one may argue that the reason for him to be killed is because he laid charges against the police and him, Mr Visser, as well.
CHAIRPERSON: Is there any evidence that that was in their minds?
MR MAPOMA: As I'm saying, Chairperson, at this stage it is not conclusive, but if further evidence can be tendered, it may crop up that that evidence is material and to a certain extent that may have been the reason. In fact, Chairperson, if I may go further, Visser in his application vehemently denies that this Scorpion was in fact this Oupa Madondo, the one who is spoken of.
CHAIRPERSON: That's what he still said, as far as he could bring the two together, he still believes it wasn't the same man.
MR MAPOMA: Yes, that is very interesting and I argue, Chairperson, that in itself invites serious scrutiny on the part of the Committee because one understands why, he has got an interest in fact in showing that Scorpion was not in fact Oupa Madondo because of the relevance of the identity of Oupa Madondo because if it can be established that Oupa Madondo was in fact Scorpion, then it is clear that his application may fall, that's my view, Chairperson.
CHAIRPERSON: Was he questioned about assaults on Madondo?
MR MAPOMA: Well he wasn't but it was not taken any further. It does not gainsay the possibility that there was assault. He may not have personally assaulted him but his guards, there is evidence that they did assault the deceased and he was a Commander, the buck stopped with him.
MR WILLS: Mr Chairperson, sorry, I just want to confirm before we go off record, that our arguments are all subject to at least the transcripts of the rest of the evidence and then we will decide whether or not to submit further evidence. Thank you Mr Chairman.
CHAIRPERSON: Could you kindly find out when Mr Carr would be available. We would like to finish the matter as soon as possible. If he could advise us.
MS VAN DER WALT: Mr Prinsloo said yesterday that it would still take two weeks because he's still in intensive care, he has been yesterday, he will then be released and then it would take at least a further two weeks. That is all I can say at this stage.
CHAIRPERSON: Could you ask Mr Prinsloo to let us know as soon as possible, as soon as he is in a position to do so. One would not like to postpone these things, it makes our work so much more difficult if we cannot complete those things.
MS VAN DER WALT: I will do that Sir.
MR BOOYENS: Mr Chairman, just one aspect that you mentioned to my learned friend Mr Wills. Mr van Zyl is not so convinced that he will be able to find that place again, I mean it's years, but just during an informal discussion, I don't even know whether my colleague was there, Mr Schoon I think will probably be the man because he in fact mentioned that it has been changed to some extent, apparently it's been consolidated by a number of farmers into a game farm now, but he seems to be the one who is reasonably convinced that he should still be able to find the point.
MS VAN DER WALT: He most definitely said so. Yes, he is very positive as to where the place is and he'd be able to point it out.
CHAIRPERSON: That would conclude our session. I believe the matters that would have been heard tomorrow are postponed indefinitely and so all the other matters that have been placed on the role for next week, so we adjourn this sitting here and we wish to thank everybody who made it possible and who made it under the circumstances that we're assembling here, made it possible to hear these matter which clearly cut very deep and we hope that this has contributed to reconciliation and that even the family would be able to find peace at least if it's established where their beloved one died.
To everybody, the interpreters, the staff, the representatives, thank you.