WILLEM ALBERTUS NORTJE: (sworn states)
EXAMINATION BY MR LAMEY: Mr Nortje, you also applied for amnesty for various incidents in which you were involved as a member of Vlakplaas. Some of them have already been heard by the Committee, is that correct?
MR LAMEY: You then applied for your involvement in the operation during which MK Valdez was killed or injured and then died later on at the scene.
MR LAMEY: In the bundle in front of the Committee, your initial amnesty application is from page 9 and it was then signed by you on page 11 and then with reference to the annexure to your initial application, there are, on page 16 in front of the Committee, details concerning this?
MR NORTJE: Yes, that is correct.
MR LAMEY: You then have a supplementary application that you prepared with the assistance of your legal representatives, that is found on page 17 onwards?
MR LAMEY: It was then signed by you on page 22. Furthermore your background and training has been dealt with and there we find on page 32 the details of, as far as you can recall them, of what happened, is that correct?
MR LAMEY: Apart from what you are going to explain now and comment on, do you confirm the content of this statement?
MR NORTJE: Yes, that is correct.
MR LAMEY: Just one aspect, that during consultation after you had insight to some of the other statements of or that you would like to comment on and that is concerning the question around the medical assistance that was provided. Evidence by some of the other applicants was that that intravenous drip was applied, Mr de Kock testified concerning that and Mr Bosch also said that he can remember, as well as Mr Flores, I cannot quite remember what Mr Tait said, what is your recollection concerning this?
MR NORTJE: I can just say that after Mr de Kock testified I did recall that Task Force members did give medical assistance, but after I made my statement and there was no doctor on the scene and he was also not taken to a hospital.
MR LAMEY: There was no ambulance at the scene either?
MR NORTJE: That is correct, yes.
MR LAMEY: Do you confirm then that after he was wounded, he was then interrogated in this police van. Did you participate?
MR LAMEY: And as far as you can recall, you do mention on page 33 that as far as you can remember, that some of the members of the Witbank branch then got out of the van. Can you remember if they were involved in the interrogation?
MR NORTJE: Yes, as far as I can recall, they were with this person most of the time and they assaulted him. At one stage the door was opened, they sat on top of him and they suffocated him, hit him. I knew that was happening inside and then later, it could have been maybe 40 minutes or more, they then got out and I immediately realised that this person must be dead because the indications were there. I looked in and the person was lying quietly and we knew that he was dead and we then realised that he had to be taken to the mortuary.
MR LAMEY: Who made those arrangements?
MR NORTJE: I know that the Commander of the Security Branch of Germiston was then called in and they then took the arrangements further. We had nothing to do with it.
MR LAMEY: You also could not recall in your statement that Mr de Kock was involved with the assault and interrogation.
MR NORTJE: No, initially I could not remember it, but I forgot about the shooting, where he shot at the vehicle, but I knew that there was such an incident, but when he then talked about and that would have been the normal procedure, he would have had the interest in the action that he would have been there with the initial interrogation, but he was not there for very long.
MR LAMEY: Very well. Can you recall at all who the members of the Witbank branch were?
MR NORTJE: You talked about Chris Rorich, but as far as I can recall, he was only in charge of the members who came there. Two young members whom I did not know at that stage, it was the first time that I'd met them and I could not remember their names.
MR LAMEY: I think Mr de Kock also testified that Chris Rorich was also involved in a briefing beforehand.
MR NORTJE: It could have been so, yes, but I know that he was in charge of them.
MR LAMEY: But you cannot place Chris Rorich at the scene?
MR LAMEY: You did mention in your application that he was the Commander of the Security Branch.
MR LAMEY: Very well. What was your rank then? We're now talking about November 1988.
MR LAMEY: You then apply for amnesty for the fact that, or you agree with the evidence that the purpose of this operation was to arrest this person?
MR LAMEY: And that the victim was then wounded while he was trying to flee?
MR LAMEY: Well the question concerning the circumstances of his injuries, did you personally see where he jumped over the fence or is that what you mention in paragraph two of your evidence?
MR NORTJE: I did not see him being shot. We stopped in front of the house and we just heard somebody saying "There he goes" and we then followed him. I think that the shooting occurred maybe two houses from the original house and maybe in front of the house. As far as I can infer, they provided him with medical assistance because everything looked the same in that street, I think maybe that's why the members became confused about the details, but I did not specifically see him being shot, or what specifically happened there, that is correct.
MR LAMEY: But what you understood was that he tried to run away and that he was then stopped?
MR NORTJE: Well, I saw him jump over the wall and I remember the person hanging half-way over the wall and then firing a shot.
CHAIRPERSON: Which wall was this that you now remember?
MR NORTJE: There was a wall behind the house, it was not a six foot fence, it was one of those concrete fences, but he did not shoot him there, he already jumped over the wall at that stage and everybody then followed, jumped over and that must have been in the house behind the first one. There were two rows of houses in one block and he had to jump over that fence to go into the next house. It did not happen directly at the original house.
MR LAMEY: Very well. You then request amnesty for the fact that from a legal perspective you omitted, as a member of the police, to prevent that the person then be assaulted during interrogation and especially since this was a person who required medical treatment.
MR LAMEY: And then any other offence which may emanate from the facts of this matter, along with your omissions.
MR LAMEY: Possibly also culpable manslaughter.
MR LAMEY: Then with regard to the political objective, it is, as you recall it, or it has been set out on pages 35 and 36.
MR NORTJE: Yes, that is correct.
MR LAMEY: With regard to the order and the approval.
MR NORTJE: That is correct and I did not receive any financial reward for my participation.
MR LAMEY: Thank you, Chairperson, nothing further.
NO FURTHER QUESTIONS BY MR LAMEY
MR HATTINGH: Thank you Mr Chairman, Hattingh on record.
CROSS-EXAMINATION BY MR HATTINGH: Mr Nortje, I was taking instructions from Mr de Kock when you spoke of his involvement there at the vehicle and I couldn't really hear quite well what you said. Would you concede that he was also in the van when the deceased was interrogated there?
MR NORTJE: As I have said, while I gave evidence I recalled that he was there at a certain stage and that he re-emerged from the vehicle and departed again with other members.
MR HATTINGH: Yes and after his departure there were still some of the Witbank people in the vehicle who were busy with the deceased.
MR HATTINGH: And they continued with the interrogation.
MR NORTJE: Yes, I recall that specifically.
MR HATTINGH: Then subsequently some of them disembarked and one of them said that they thought that the person was deceased.
MR HATTINGH: Thank you Chairperson, nothing further.
NO FURTHER QUESTIONS BY MR HATTINGH
MR VAN DER MERWE: I have no questions, thank you Mr Chairman.
NO QUESTIONS BY MR VAN DER MERWE
MR CORNELIUS: Cornelius on record. No questions thank you Mr Chair.
MR KOOPEDI: No questions on behalf of the victims, thank you Chairperson.
MS LOCKHAT: No questions, thank you Chairperson.
MR SIBANYONI: Mr Nortje, you said at one stage the door was open and you saw them sitting on him and hitting him. Who were doing that?
MR NORTJE: It must have been during the process of his assault. I cannot say precisely whether it was at the beginning or whether it was at the end, but I knew that an assault was taking place inside there and the members were standing with their backs facing the rear so I didn't really stand at the vehicle and look in, we were standing some distance away. It must have been when someone disembarked or opened the door. It's very difficult to say. I cannot pinpoint somebody specific, but I know that they were busy with an assault there. He was lying on the floor of the vehicle.
MR SIBANYONI: Did you remain there until the attack stopped?
MR NORTJE: I am not certain whether I was present all the time, I may have been busy with something else. I cannot recall that I was there all the time, but I was present when they basically began there, when he was loaded into the vehicle and when they disembarked and said that he was dead. I recall that I was also present at that stage, but I cannot say that I was there at all times.
MR SIBANYONI: Did you accompany de Kock and the other people who were going to search for their weapons?
MR NORTJE: I tried to think of that, but I don't believe that I went with them. I cannot imagine that, I cannot recall that I went with them. It may be so but I cannot recall anything specific that I did, which would have meant that I accompanied them, I am not certain.
MR SIBANYONI: Thank you Mr Chairperson, no further questions.
CHAIRPERSON: How was he loaded into the vehicle?
MR NORTJE: I would recall that at a certain stage he was seated in an upright position when they applied the drip to him and also the bandage. When I saw him, he was shocked but his wounds or injuries were not of such a serious nature that he lay flat on his back. I know that he was seated in an upright position when they were treating him. They mentioned that he was sitting at the house. I know that he sat on the grass or on a wall at some stage when they were treating him, so he wasn't that seriously injured, although he had suffered a gunshot wound to the leg. I cannot say whether they carried him to the van or whether he walked independently, I'm not completely certain.
CHAIRPERSON: You see you used the words a minute or two ago
"I was present when he was loaded into the vehicle."
I'm just ask you, how was he loaded in?
MR NORTJE: Well I recall that when the interrogation commenced, I was in the vicinity, but I cannot recall specifically whether he climbed into the van independently or whether they loaded him in as such, I cannot recall this pertinently.
MR LAMEY: Thank you Chairperson.
RE-EXAMINATION BY MR LAMEY: Just with regard to this loading in, Mr Nortje, policemen often refer to loading someone into a police van and transporting him, is that what you actually meant? You don't mean that you recall specifically that he was physically picked up and loaded into the van?
MR LAMEY: Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR LAMEY
MS LOCKHAT: Chairperson, that concludes the case for the applicants, and then just Ms Shongwe, the wife of the deceased, would like to make a submission. Thank you Chairperson.
MR KOOPEDI: Chairperson, if I may intervene, the situation has since changed. Somehow she has been affected and does not wish to make the statement any further. in the short and brief address I will make, I will incorporate what would have been her statement. Thank you Chairperson.
CHAIRPERSON: Gentlemen, you have 15 minutes to prepare your addresses. We'll take the short adjournment now.
MR HATTINGH IN ARGUMENT: Thank you Mr Chairman, Members of the Committee. I'm going to be brief.
Mr Chairman, I submit the facts in this matter speak for themselves. It's a clear cut case, I submit, with respect. Mr de Kock's evidence was not challenged by any of the other applicants, nor by the representative for the family. His evidence briefly was that he received a request from the Security Police at Germiston Witbank to assist with the arrest of four or five MK members who were involved in acts of sabotage and terrorism, according to the information that he received and for that reason he thought it wise to obtain the support from the Special Task Force of the police. They went there, they found the late Mr Valdez and he was shot, injured.
Mr de Kock quite frankly admitted his involvement in the interrogation and the assault during the course of the interrogation whereupon he left and when he came back, the person had died.
I submit with respect, Mr Chairman, clearly the actions of Mr de Kock are covered by Section 20 (ii)(b) and (f), if I remember correctly, that he acted, he said he exercised his own discretion and in this regard, I would once again refer you to the supplementary affidavit which he made when the Vlakplaas as a political institution was dealt with, where he deals with the question of exercising his own discretion.
I submit that the political objective is clear and that he furthermore made a full disclosure of his involvement in this incident and that he did not act for personal gain or out of personal malice, ill-will or spite and I submit therefore Mr Chairman, that he has satisfied the requirements for amnesty and I submit that amnesty should be granted in respect of the offences of murder, alternatively culpable homicide, assault with intent to do grievous bodily harm.
CHAIRPERSON: Now is there any evidence that he was guilty of murder?
MR HATTINGH: Mr Chairman, in the unlikely event that it might be said that he had dolus eventualis, that he realised that the man was seriously injured and instead of obtaining proper medical care or assistance for him, he proceeded to interrogate him and then left the scene where he was in charge of the operation at that stage Mr Chairman and in that regard, it might possibly, I agree with you with respect Mr Chairman, that's it's unlikely that on the evidence now available, a conviction for murder would be obtained but it is possible that they could be charged on the basis of dolus eventualis and for that reason I submit that he ought to be granted amnesty for murder, alternatively culpable homicide, also for assault and then Mr Chairman, it's not clear from the evidence before you that he was a party to a cover-up, as would appear from the statement of one Schoeman. I don't think it's necessary to apply for amnesty for defeating the ends of justice.
MR LAX: Well except, Mr Hattingh, that he backs up the general story of keeping the place under observation and everything else that happened there.
MR HATTINGH: That is quite correct and I'm indebted to Mr Lax for drawing my attention to that. Perhaps I should ask for amnesty for - Once again ex abundante Mr Chairman, I would ask for amnesty for defeating the ends of justice as well. Thank you Mr Chairman, I've nothing further to add.
MR BOOYENS IN ARGUMENT: Thank you Mr Chairman, Honourable Committee Members. I'm dealing with the application of Mr John Tait in this matter.
Mr Chairman, his role in this matter is rather insignificant. He was a member of the South African Police contingent who, under the command of de Kock, went to effect the arrest of terrorists and/or traced the whereabouts of weapons and ammunition, according to information at their disposal. he was present with Flores at the stage where the deceased in this matter was fleeing and fired upon by Flores. I want to submit to the Committee that it could be argued that Tait acted in common purpose with Flores at the time when Flores fired at the deceased as described before this Committee. It is true that there are some material differences in the versions of Tait and Flores regarding to where exactly this happened and how it happened. Mr Chairman, with all due respect I want to submit to the Committee that I think that the length of the chase is possibly the only material difference in the evidence here. It is clear that this person was shot around the vicinity of a wall, at some stage when he tried when he tried to change course of where he was fleeing to and as such I want to submit to the Committee that I'm of the opinion that this difference in their versions is not material to this specific amnesty application and it should not bear any other consequence save for the fact that it just illustrates once again how fragile the human mind is when you have to recollect these things.
CHAIRPERSON: Well on both versions, isn't it, that here was a suspected terrorist attempting to evade arrest.
MR BOOYENS: That is correct, Mr Chairman.
CHAIRPERSON: And it would also appear clear that there was no intention to kill him. The sole wound was just above the left knee, it was more to prevent his escape.
MR BOOYENS: That is correct, Mr Chairman. In view of your comments Mr Chairman, I would say then and submit to the Committee with respect that Mr Tait made a full disclosure, that there was no financial gain for him in this exercise, he did not act our of malice or ill-will, that he did have a political motive when he acted as he did, that he complies or falls under the Section 20 (ii)(b) and (f), probably (b), as regards to being an employee of the State acting against members or supporters of a liberation movement. The crime that he should apply for Mr Chairman, I would submit could in this instance be attempted murder, in that it is possible that some court might decide that when Mr Flores fired at the deceased as he did, that he acted contrary to the provisions of Section 49(ii) of the Criminal Procedure Act, 51 of 1977 and as such also then possibly defeating the ends of justice in that they might have known or could have known at the stage when the deceased died that he in all probability did not die as a result of any loss of blood, as was told at that stage.
CHAIRPERSON: Well, he did die, but what caused it to become that serious is a different matter.
MR BOOYENS: That is correct. The evidence is also that Mr Tait was not there at that stage and never had any further dealings with this, but as such I will leave it there. Then also for any possible delict that my client might have committed. Thank you Mr Chairman.
MR CORNELIUS IN ARGUMENT: Thank you Mr Chair. Cornelius on behalf of Flores. I submit that he filed a proper application in terms of the Act timeously. He's an applicant in terms of Section 20 (ii) (b) and Section 20 (ii) (f) possibly. He was a member of Vlakplaas, a sergeant at that time. I would like to add without, or being very brief, although there are contradictions, I refer you to the decision taken in the London Bomb case as well as the decision in the Cosatu and Khotso House Decision, but these contradictions are not fatal to the application. He in fact admits that he was on the scene, he in fact shot him and there can be no doubt that he made a full disclosure of all the facts. It's clear he had a political motive and the objectives were in the light of the conflicts of the past and that there was no personal malice or any gain.
CHAIRPERSON: Isn't one of the problems for us, not for you, that we haven't really got a clear picture of the vicinity. There was a wall at the back of the house. Were there walls behind the other houses? Things of that nature. Because I have assumed, and looking at my notes I think the assumption may have been justified but it may not, that "When Mr de Kock spoke of being in front of the house, he meant in front of the house that we had gone to search", but on a rereading it may have been in front of one of the houses along that road and without having any certain knowledge of it, it's very difficult to say that the versions are different, when one says he climbed over a wall to assume he's talking about the wall immediately behind the house. When Flores says it was a wall, that it's not a wall two houses down the road.
MR CORNELIUS: Yes, precisely Mr Chair and if you look at the application of de Kock you will see that he says that after they got information from Mr Valdez, they then went to a house and they made a search, so there's quite clear confusion as far as that is concerned, I quite agree.
I then ask for amnesty to be granted to the applicant, I think it would be fair for attempted murder, obviously defeating the ends of justice and all acts, all delict flowing from his acts and/or obviously omissions, as far as this application is concerned. Thank you Mr Chair.
MR LAMEY IN ARGUMENT: Thank you Chairperson, I'll just make brief submissions on behalf of the applicants Bosch and Nortje that I represent.
Both of them were, in my submission, lower ranking non-commissioned officers of Vlakplaas, of which the commanding officer was De Kock, who was according to his own evidence, in control and in charge of this operation. Chairperson, my submission is that as far as the political objective is concerned, that what also must be taken in regard as far as their applications are also concerned, the evidence of Mr de Kock. As far as their involvement and participation is concerned, none of them were directly involved in either the wounding or shooting of the victim, or the assault upon the victim. In both their cases, I think their blameworthy conduct lies in their omission to prevent it as from a strictly legal sense of the word as being policemen and also their failure not to ensure or that he receives proper medical treatment after he's been wounded and been taken to hospital. In that sense Chairperson, it has been stated in the amnesty application that possible commission of the offence of culpable homicide lies in front of his door.
Chairperson, I must just add also in thinking of it that there's also a find line here between objective unreasonable conduct and the subjective foreseeability of death and I would also submit that should you grant amnesty for murder on the basis of dolus eventualis, not only culpable homicide, that you should also extend this to these two applicants, although they haven't specifically mentioned that in their applications.
The other aspect is, Chairperson, that there was a plan to arrest and as Mr Nortje has also mentioned in his written application, the intention to question him should he be arrested, now in that regard Chairperson, from the whole culture of the Security Police and the culture also of Vlakplaas, I would submit it was also foreseeable that he could have been assaulted and to that extent, I submit that there's possibly also a common purpose aspect here could be laid at their door, although they have not actively participated in the assault and then also any other delict that could be inferred from the facts.
CHAIRPERSON: One point which I should perhaps have put to Mr Hattingh, but I don't think it is as important in the case of Mr de Kock himself, you said Mr de Kock was in charge of the operation, but as I understand the evidence, and I would like to have corrections here, Capt Rorich of Germiston requested the assistance of Capt de Kock, he was a Captain then wasn't he? Rorich was in Witbank, to assist him in a operation. Rorich briefed them all and thereafter delegated authority for the actual carrying out of the operation which was in his area, to Mr de Kock. We've had this similar argument about operations, well not argument, about operations in the Eastern Cape and where the authority was derived from. Here it would appear that the authority was derived from Rorich to carry out an operation here and certainly the persons from Vlakplaas under Capt de Kock, would have had no reason whatsoever to doubt that this was a perfectly legitimate operation being carried out. They were instructed at the Witbank ..., by the Commanding Officer, they were instructed at the Police Station and they went and carried out the operation.
MR LAX: Just one correction. Lotz was the man on the ground, he was the local Commander. Rorich was from Witbank.
CHAIRPERSON: Lotz was the local Commander. But as far as de Kock being in charge, he was only placed in charge of the operation after the briefing, he was not the man responsible for having planned it.
MR LAMEY: No, no, I'm not that.
CHAIRPERSON: I'm saying, I think you can as far as the other applicants are concerned, they would all in this case have no reason to question what they were doing.
MR LAMEY: No, exactly Chairperson and from their point of view being under the command of Vlakplaas on the ground, I think whatever happened after the wounding of the victim, lay actually within the discretion of Mr de Kock as being their Officer Commanding on the ground.
MR KOOPEDI IN ARGUMENT: Thank you Chairperson, Honourable Committee Members. A brief address on behalf of the victims in this matter.
May I perhaps at the outset Chairperson, Honourable Committee Members state that the victim is please that she has found the grave of her husband. This victim, Chairperson, comes from a particular background. She is a trained MK Cadre herself. She still works full-time for the ANC, she supports and understands the TRC and the amnesty process and Chairperson, it is on those bases that she did not wish to have a lengthy hearing and hence the instruction not to cross-examine Eugene de Kock and his fellow applicants. Chairperson, the victim is the wife and mother of ...(indistinct) children, leaves it to this Honourable Committee's discretion to determine whether or not to grant amnesty. May we put on record that the victim sees this killing as one of being of a political nature. This victim believes that she's in no position to prove that there was any personal gain on behalf of Mr de Kock or any of his fellow applicants and hence that route was also not followed.
Chairperson, indeed when this hearing began there were what we would call half disclosures. We asked for an adjournment. More investigations were undertaken. More statements came out, there were explanations as to why these statements were not initially disclosed. The victim believes that this Honourable Committee is capable of determining whether the type of disclosures and the timing of those disclosure which are now here before this Committee, comply with the requisite full disclosure. To promote national reconciliation, the victim feels that she has forgiven in particular Mr de Kock. It is however, still very hurtful for her and perhaps some of the people here, to hear references made to her beloved freedom fighter, that he's a terrorist.
May I mention at this stage Chairperson that during the short interval that we had, some of us witnessed a very touching reconciliatory meeting between the victim here and applicant de Kock. I believe the contents thereof are perhaps not important for this Committee but there was such a meeting and very touching Chairperson.
The victim is also finally happy that to a certain extent or to a very large extent, the truth has come out in that names of certain police people from Witbank and the Germiston Security Branches who participated in the torture and murder of Valdez, these names have come out, they've come to the fore.
Perhaps the last two aspects we wish to address in this brief address is the fact that the external appearance of the body and limbs of the late Valdez, that is when the post-mortem was done, shows that he had no less than 27 injuries. This can be see Chairperson from page 2 and the annexure to page 2 of the post-mortem and to a certain extent this is inconsistent with the version of a man running away, perhaps brushing a few trees and being shot. However, we still leave that to the capable Honourable Committee to determine as to whether that would be the truth. Chairperson, there have been also other contradictions on the events of the day as to whether these contradictions will be seen as complying with the requisite full disclosure, because the applicants perhaps may have forgotten, it has taken a long time. This again, the victim feels that this Honourable Committee is capable of determining. Thank you Chairperson.
CHAIRPERSON: Could I perhaps also at this stage say that I, in questioning certain of the applicants, also used the word terrorist. That I did so in the context, that that was what would have been said at the time by members of the Security Branch. It certainly was not intended to in any way reflect on the deceased in this case.
MR KOOPEDI: If I may respond Chairperson. Indeed this address was prepared long before you could even make that utterance and it was well understood from this side what you meant. Thank you Chairperson.
MS LOCKHAT: Chairperson, this concludes the matter. I have no submissions in this case.
CHAIRPERSON: As is the normal practice, we will release our decision at a later stage. I would like to thank all of you for the assistance you have all given us, in particular the widow of the deceased in the hearing of this matter and I trust that she will be able to continue with her efforts of reconciliation for the future of our land.
We now adjourn, because my colleague wishes to take a trip to the Lowveld, till Thursday morning. What time, 9.30? 9.30 on Thursday morning.