CHAIRPERSON: We're starting this morning with the amnesty application of Mr C Nel. Would the various legal representatives please put themselves on record? The Committee consists of myself, Adv Bosman and Mr Lax.
MR BOOYENS: Thank you Mr Chairman. On behalf of the applicant, Kobus Booyens instructed by Carlitz, ...(indistinct) and Associates.
MR SHAIK: And I appear for myself, Eunice Shaik.
MS THABETHE: Thank you Mr Chair. I'm Ms Thabethe for the TRC, the Evidence Leader.
MR BOOYENS: Thank you Mr Chairman. I call, Mr Nel. He'll be testifying in English.
EXAMINATION BY MR BOOYENS: Mr Nel, you are an applicant in this matter, is that correct?
MR NEL: That is correct, Chairperson.
MR BOOYENS: Just dealing with your amnesty application, paragraph 7(a), the question: Were you an office bearer/supporter etc of any political party, the answer was not applicable. Did you support any political party in those days?
MR NEL: Yes, I did, it was the National Party.
MR BOOYENS: So the answer to 7(a) should be National Party and 7(b) should be supporter, is that correct?
MR NEL: That is correct, Mr Chair.
MR BOOYENS: On page 3, just for the sake of clarity, when you left the police force, you left with the rank of a Warrant Officer, is that correct?
MR NEL: That's correct, Mr Chairperson.
MR BOOYENS: Now the incident for which you are applying for amnesty took place during 1984/1985, you cannot remember the exact date, is that correct?
MR BOOYENS: At that stage you were a junior police officer attached to the Security Branch in Durban.
MR NEL: That's correct. I think I had the rank of a sergeant at the time.
MR BOOYENS: And there was an investigation according to your amnesty applications, into the activities of one Ismail, Ephraim, is that correct?
MR NEL: That's correct, Mr Chairperson.
MR BOOYENS: Were you directly involved in the investigation?
MR BOOYENS: I see. But to your knowledge was the presence of a certain Datsun 140Y motor vehicle relevant to the investigation?
MR NEL: That is correct, Mr Chairperson. My understanding was that Mr Ephraim was at some stage in possession of this vehicle and the Security Branch was interested in testing this vehicle for the possibility of it conveying explosives.
MR BOOYENS: As far as you are concerned, who was the officer in charge of the investigation?
MR NEL: At the time it was Lieut Hentie Botha.
MR BOOYENS: And the victim in this matter, Mr Eunice Shaik was at that stage detained by the Security Branch, is that correct?
MR NEL: That's correct, Mr Chairperson.
MR BOOYENS: Now as you state in your application that at one stage you were ordered to go and fetch the applicant from the police cells at CR Swart and bring him to the offices of the Security Branch, is that right?
MR NEL: That's correct. The cells are in the same building as the offices of the Security Branch was at the time.
MR BOOYENS: Ja. And did you have, at the stage that you were ordered to go and fetch Mr Shaik, have any knowledge as to why you had to go and fetch him, or the exact detail, what was planned?
MR NEL: All I knew was that Mr Shaik was to be interrogated.
MR BOOYENS: I see. Now is it correct that you and Sgt Brand Visagie, on instructions of Lieut Botha then took him from the cells and took him to the office?
MR NEL: That is correct, Mr Chairperson.
MR BOOYENS: At the bottom of page 3 and going over onto page 4 of your amnesty application, you say who the persons were who, as far as you can remember, were there?
MR NEL: I confirm that that is correct.
MR BOOYENS: What may become relevant is number 4: An unknown medical practitioner - did you know this man at all?
MR BOOYENS: To your recollection, have you subsequently seen him or dealt with him after the incident?
MR NEL: I've never seen him again and even if I see him today I will not be able to recognise this person, Mr Chairperson.
MR BOOYENS: Just to assist the Committee, this was - this doctor was a white male, is that correct?
MR BOOYENS: And thinking back to 15 years, how old would you say he was, approximately?
MR NEL: I would say between 40 and 50 at the time.
MR BOOYENS: At the time, that's 15 years back. You then describe how the incident proceeded at page 4, is that correct?
MR NEL: I confirm that Mr Chairperson.
MR BOOYENS: And it is correct that an assault was perpetrated upon the detainee at the time?
MR BOOYENS: And the role that you played is you were holding his arm, as far as you can recollect?
MR NEL: That's correct, Mr Chairperson.
MR BOOYENS: The detainee was interrogated during the process of the torture upon him and he denied knowledge of the motor vehicle, is that right?
MR BOOYENS: You state that the same evening he was booked back by yourself and Visagie into the police cells, is that correct?
MR NEL: That is correct, Mr Chairperson.
MR BOOYENS: During consultation, I pointed out to you that the applicant in his affidavit says that it was only the next evening, your comment about that.
MR NEL: As far as I recall it was the same evening, but I might be mistaken. I'm not going to argue with Mr Shaik on whether it was the next evening, it could well be. I really can't remember whether that is so or not.
MR BOOYENS: But was your contact with the applicant limited as far as the incident in the office was concerned, to holding him down during the process of the torture?
MR BOOYENS: You had nothing further to do with him in the office?
MR BOOYENS: Mr Shaik also states in his papers that on occasion that you saw him down in the cells and asked him how he was and that he also told you that he needed a doctor. Is it possible that that would have happened?
MR NEL: That could be very possible and if he did tell me that, which I cannot dispute, I can't remember that, I think I would have conveyed his request to my superiors and I also know that I think at the time all political detainees were visited on an hourly basis by whoever was in charge of the cells, it would have been the cell Commander.
MR BOOYENS: I see. You yourself, due to your rank, were not in a position to get him medical assistance on your own, is that correct?
MR BOOYENS: You further deal in paragraph 10 with the political objectives, is that correct?
MR NEL: I confirm that as true, Mr Chairperson.
MR BOOYENS: And paragraph 10(a) and 10(b), do you confirm the correctness thereof?
MR BOOYENS: And do you confirm the balance of your application?
MR NEL: I confirm that as true and correct.
MR BOOYENS: Just one aspect. In the affidavit filed by, as he then was, Lieut Botha at page 72 to 76 of the papers, he says you are mistaken as to his identity. Your comment about that.
MR NEL: I can remember Lieut Botha being in charge of this operation, if I can call it an operation, the interrogation then and I do recall him being present there and he was the person who gave Brand Visagie and myself the order to fetch Mr Shaik from the cells.
MR BOOYENS: Is there anything else you want to add to your amnesty application?
MR NEL: No, I've got nothing further to add. Thank you Mr Chairperson.
MR BOOYENS: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR BOOYENS
CHAIRPERSON: Have you any questions?
MR SHAIK: I have no question which I wish to ask, but I do wish to make a statement. Perhaps I'll do that once everyone else has finished asking their questions?
MS THABETHE: Thank you Mr Chair, just one question maybe.
CROSS-EXAMINATION BY MS THABETHE: Mr Nel, on what basis did you suspect Mr Shaik to have hidden the car? On what grounds did you reach that conclusion, do you know?
MR NEL: I was told that by my superiors, in fact Lieut Botha told us that Mr Shaik was suspected of hiding this car or had knowledge about this vehicle and that was the line of questioning when he was interrogated, was to find out where the vehicle was.
MS THABETHE: And why was it so important that the vehicle be found?
MR NEL: As I've stated, the Security Branch wanted to see whether Mr Ephraim, who had the vehicle in his possession, whether he conveyed explosives and the vehicle would have been tested by the South African Police sniffer dog unit, to find out whether there were in fact explosives carried in this vehicle.
MS THABETHE: Thank you, Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Am I correct in saying that the matter concerning Mr Ephraim drew quite a lot of publicity and attention?
MR NEL: Absolutely true, Mr Chairperson.
CHAIRPERSON: It became a very high profile matter.
MR NEL: That is correct and that is why it was important for the Security Branch to find the vehicle that he was driving around whilst being here in KwaZulu Natal.
MR LAX: With your permission Chair. Just one thing about this practitioner. Was the person English speaking, Afrikaans speaking?
MR NEL: I think he was Afrikaans speaking if I recall correctly. The medical practitioner didn't ask any questions from Mr Shaik, but I recall him speaking to Mr Botha in Afrikaans.
MR LAX: Do you have any idea why he was there?
MR NEL: Well I didn't at the time, but I know now why he was there, because he was a medical personnel.
MR LAX: Well was it usual to have medical practitioners at these torture sessions?
MR LAX: ; Well then what was the relevance of him being there?
MR NEL: I can't answer that question, Mr Lax, I don't know. I can suspect who arranged for him to be there and whoever planned this must have thought that a doctor would be the person to do whatever was done, the torture.
CHAIRPERSON: He in fact administered the torture?
MR NEL: Yes, he did, Chairperson.
MR LAX: In your experience as a policeman, that procedure was nothing unusual?
MR NEL: To me it was very unusual. I'd heard of other methods of torture whereby ice cubes were used, for instance. I've never had such an experience myself, but I've heard of that, but to me this was an unusual method of torture, yes.
MR LAX: But you would have heard of prison searches that are conducted in exactly the same manner?
MR NEL: I have heard of searches done like that, but that was, I wouldn't say that's a method of torture, that's a method of finding something from a prisoner, if he's trying to hide something.
MR LAX: My simple point is, it may be an unusual form of torture, but it's a form of activity that's perpetrated on prisoners on a regular basis.
MR NEL: I wouldn't dispute that, Mr Lax.
ADV BOSMAN: ...(indistinct - mike not on) Chairperson. Mr Botha, on page three of your statement, at the bottom, about three lines from the bottom you say
"The following members were present as far as I can remember."
It's a little ambiguous. Do you mean those are the only one who you can remember were present, or are you sort of saying you're not quite sure whether those are the persons who were present?
MR NEL: No, the names stated in my application are the people that I do remember. There were other people as well, as I've stated in number 5. I think there were more people there, but I can't remember who they were.
ADV BOSMAN: Thank you. No, that clears it up for me. Thank you.
MR LAX: Just one last thing, Chair, if I may. What was - if I understand your evidence correctly, the sole thrust of this was the question of the vehicle.
MR LAX: You didn't ask the victim about, when I say you I mean those present who were conducting the interrogation, didn't ask him about other issues, did they?
MR NEL: Mr Chairperson, as far as I can remember, the only questions that were being asked where "Where is the car?" and I might be mistaken but I remember it wasn't even mentioned what car, because Mr Botha was of the impression that Mr Shaik knew about the vehicle and what vehicle it was, so he wanted to know: "Where is the vehicle?" and that was the only line of interrogation, was with regard to the whereabouts of the vehicle which was later found.
MR LAX: Right, but now obviously not as a result of any information he gave you?
MR NEL: No, Mr Shaik didn't know about the vehicle.
MR LAX: Thank you Chairperson.
MR BOOYENS: Thank you Mr Chairman. That concludes the evidence in this application.
CHAIRPERSON: Do you propose to lead any evidence?
CHAIRPERSON: You wish to make a statement Mr Shaik.
STATEMENT BY MR SHAIK: Judge Wilson, I thank you for this opportunity to present a victim's version of the events that occurred at the relevant time. I must say as I've listened to my colleague, Christo Nel, speak, it's almost as if I was drifting in and out of his evidence. For the better part I was reliving a rather traumatic memory, so I'm going more on the record of what he said in his statement.
At any rate, I do want to say first that I'm very pleased that Mr Nel presented himself. It gives him an opportunity to bring closure to a difficult event in his life and an opportunity for me and my family to bring closure. For the fact that as a member of the side bar which we are both, I think it's quite honourable that he should uphold the tradition and ethics of our profession in this way.
I also wish to show some gratitude to Deborah Quinn of the Commission who has worked quite hard at this, getting us together, bringing people who may be relevant to these events here and I'm quite grateful to her and what she has done.
CHAIRPERSON: I can't see in front of me. Has she left the hearing now?
MR LAX: I think she's in your office, Chair.
CHAIRPERSON: I will draw her attention to what you have said.
MR SHAIK: The context of this assault, beyond just the time period, is relevant for us to take note of because in some sense it adds colour and flavour to Mr Nel's statement and if we read it in it's appropriate context, we could see how we all were caught up in a madness at the time. During this period of 84/85, the ANC of which I was then a member, had made a push to establish a forward base in Durban in preparation for the return of it's leadership and to execute that task it fell upon Ismail Ephraim to establish a forward base in the country and he in turn called upon our unit and it was known as the MJK and in that unit were my brother Mol Shaik, myself and one other by the name of Sereesh Solne. We were all quite young at the time, in our early twenties and we were about the same age as Christo Nel at the time as well. Our job was to establish the forward base, receive Ephraim Ismail from Swaziland, bring him into the country and give him logistical support and other assistance. It was during this event that I came to be imprisoned on the basis that I was lending support to Ephraim Ismail.
Dealing with the actual event that led to my arrest and my treatment whilst in the care of the police, perhaps the important thing to note is I was questioned not about the vehicle, but about supposedly bombs that were going off at the time in the Durban region, which certainly Hentie Botha held the opinion I was responsible for planting with Ephraim Ismail. So that was quite an assumption they made at the time of what we were doing and because of the bombs that were going off, because of the damage that was occurring to the psyche of civil society and it was not long before the blast that took place in Magoo, that there was a certain franticness by which the police conducted this investigation and also recognising that they would have a very senior Commander of the ANC if they captured him in Ephraim Ismail, they were not wanting to exercise due care in the way in which they treated anyone, they wanted to get him at all cost, so that made the prize all the more and I would imagine from the police end it would be a feather in their cap if they could capture him, so the lesser people around at the time could be dispensed with in any way.
Now, I substantially agree and concur that the events set out by Mr Nel are correct. I think nearly all of it, as best as I can recollect, is the correct, so in that respect I have no grouse with his testimony and I must express my gratitude to him for having made such a full and honest account of that which occurred at the time.
Might I just also say, Judge Wilson, that whilst we call Christo Nel to account for the physical assault on myself, it was part of a much greater assault, but not just on myself. The assault in the sense of torture, was endured by myself but in another context, I was also the longest serving solitary prisoner and we were made to endure for about 11 months in solitary.
CHAIRPERSON: Sorry, can I interrupt you here? Were you detained or was this just unlawful detention?
MR SHAIK: ...(indistinct - mike not on)
MR LAX: I'm sorry to interrupt you. Would you just put the mike on again please.
MR SHAIK: As to the lawfulness of the detention, application was made to Judge Shearer and he confirmed that the detention was lawful, so it endured for all of a year. During that time I was in prison with my brother, Riaz Shaik, he's commonly known as Mol Shaik and my friend Sereesh Solne. All of us were long term solitary prisoners.
If I should compare the pain we had to endure, the assault became a rather minor injury that we endured. The much greater one was to imprison in solitary for that length of period, but it's not a matter that we hold Christo Nel responsible for, except to say that having questioned us on day one, they forgot to question us for the rest of the year. If I could just leave this matter for a moment.
The assault then must be placed in it's context of both physical and the emotional assault you suffer, but even after our release, we were often threatened with re-imprisonment, if I may use that word. So in a sense there was no end and our ordeal continued over several years, as you would constantly get information to the effect that you are now being sought or you would be visited at your workplace, so as a result we were forced into the underground for about five years, I would think, right into the early nineties, we would live in the underground. Again, it's not a matter we hold Mr Nel responsible for, but their conduct, their collective conduct was to torture, to imprison and to threaten to re-incarcerate, so it left an individual in a permanent state of instability. I may say, whilst he went on to be admitted as an attorney, I had just at that time finished my articles and I could not seek admission on account of the fact that to be a member of the ANC at the time would not entitle you to enrol, so I finally got admitted 15 years late. So it is an upsetting thing that the destabilisation brought to an end a legal career but at another level, the manner in which the Security Branch at the time conducted themselves, imposed an unfair trauma on my family. Being detained for so long and having two of her sons in detention, was very traumatic for my mother. At the time when I was first captured, they imprisoned both my father, my three brothers and myself, so you can imagine my mother's horror having her entire family detained and there was no just cause to detain my dad or my niece at the time, who was with us. All of this imposed an immense trauma on my mother and she was to suffer a heart attack whilst I was detained and she died. There was some rationality if the matter could be called to an end there, but unfortunately it did not. Having detained me and released me in April - released in the March of the following year, they promptly go on to detain my brother, my youngest brother in July of that year and then kept him in prison for an entire year in solitary as well and for no reason whatsoever.
This collective treatment of the Security Branch caused us to suffer unnecessarily. My dad's business at the time had to suffer an insufferable amount of debt as we had to fund many court cases, with the engagement of Counsel and so on and Senior Counsel to secure release. It imposed a financial burden on his small business that would later see that business collapse.
My young brother, Mol Sheik, was also imprisoned with me at the time. He was a young optometrist in practice. His practice was to collapse, having been imprisoned again for a year and longer. In addition to that my younger brother Shamiem Shaik, was awarded a ...(indistinct) scholarship to go and study in the US, but having gone into detention he could not act on that scholarship and that was to cause him to lose an opportunity unfairly.
Likewise, an effect was to be felt on my whole family, including my brother Shabir who was at the time a lecturer in Cape Town, my brother Faizel was a young businessman at the time and most of all my young sister, who was to suffer an extraordinary loss, both of her mother and her brother.
Today losses, I do wish to acknowledge and show extraordinary gratitude to my family who had to endure all of this, and the heroism that they showed in the face of such extraordinary pain, to my father who absolutely refused to see his sons suffer, ensured that he got into prison and as Christo Nel had finished having tortured me, my dad came into the cell and administered medication to me. I'm eternally grateful to him.
I do wish to acknowledge the heroism of my brother Shabir. Whilst we were solitary prisoners, several months into our solitary, he came to our prison cell to speak to us and wish me well at the great danger of himself at being caught by the police and suffered and I do wish to acknowledge the love and support I received from my wife, Noshiem, who was then my girlfriend, who stayed with us through it all. I am deeply indebted to her.
I wish also to say that in as much as we saw the brutality of the policemen and of the kind of Christo Nel, there were other policemen who acted with great dignity and restraint at a time when the whole world was going mad around them. Most especially a young sergeant, no he wasn't a sergeant, he was just a private, whatever, a constable. His name was Clinton Heineke who served time with me as a solitary prisoner because he guarded me for all of that time. He was such a decent young man. He would bring me books and tell me what was going on in the world. May God bless him.
To another Constable called Michael Smith who was very humane, who would from time to time carry messages to my family letting them know that we are well. I wish to express a great deal of gratitude to Sgt Dan Pillay at the time, who was a policeman in the Security Branch. The inhumanity of the police officers caused him to lend us more support that he would otherwise. We are grateful to him.
I'm also grateful, finally, to my comrades in arms, my brother Mol Sheik, my young brother Shamiem Sheik, and Sereesh Solne, for having endured and to each of them who have now triumphed, my brother Mol is now Ambassador to Nigeria, my younger brother Shamiem is the head of the South African Defence Force Procurement, Sereesh Solne has found a life in Spirituality, for myself, I'm now the Commissioner at the CCMA, and to all of my family, they have all endured and prospered, we have come to heal ourselves and this as a life experience has made us stronger as a family and as individual members, I express my gratitude to everyone.
Finally to Christo, but before I go on I mainly wish to say again that one of the effects of long term imprisonment it develops within you an extraordinary amount of rage and for the better part my wife had to endure that as I've learned to heal myself. Long after the crime the victim continues to suffer in this kind of incident and in this case, as the victim suffers, those around him, so I forgive - I beg her for forgiveness if I have acted improperly. To Christo Nel, I do wish him to know that we are grateful that he presented himself here. There are others and many other police officers, who chose not to present themselves, so it is an act of courage on his side to present himself and to hear all this from a victim. It cannot possibly be easy on him. I do feel his discomfort and I do not wish to make it any worse. I celebrate his courage, I acknowledge his honour and his dignity by which he has conducted himself, I do wish he would heal himself and he would go on to recover as much as me and my family has. God bless you. To the Members of the Commission who have had to endure this long-winded speech, thank you.
CHAIRPERSON: Nobody else wishes to say anything?
MR BOOYENS: Mr Chairman, I will just deal with it during my address, although it's not strictly speaking necessary.
CHAIRPERSON: We would like to thank you for having taken us into your confidence as you have and I think it only right that one should hear from victims as to how they have felt, they have undergone in the past, as to hear from the applicants, which we do frequently and I know that I speak on behalf of both the members of my Commission, when we extend our sympathy to you and all your family for what you've suffered in the past and our congratulations and continuing best wishes for what you have managed to achieve thereafter and are still achieving. Thank you for that.
MR BOOYENS: Thank you Mr Chairman. Mr Chairman, before I deal with my formal address, I'm instructed to convey to Mr Shaik that indeed he is right when he says it was a time of madness, a time that one can only hope that we will never, ever see, not in our lifetimes, but also in the lifetimes of future generations in this country. It's virtually impossible for anybody who didn't go through what Mr Shaik has gone through to even begin to imagine what he has gone through. I think we've seen but a small tip of the real iceberg in what he said to the Commission today. To him and those closely related to him, we wish to say that it is a pity that these things happened. I appreciate and in so far as it is possible, I appreciate his willingness to forget the past, to start afresh and I think if more people in this country adopted that attitude, then maybe there is indeed a future and maybe indeed we can bury the past. We thank you very much Mr Shaik and appreciate what you have said today.
MR BOOYENS IN ARGUMENT: Mr Chairman, dealing with the formal aspect, I submit ...(intervention)
CHAIRPERSON: I don't think we need hear you. In respect of...
MR BOOYENS: In respect of ...(intervention)
MR LAX: Your mike please, Mr Booyens.
MR BOOYENS: Any offence arising from the assault perpetrated and although it's not stated there, any civil liability which may arise from it although I do not think there is any possibility of that anymore. I do not think all civil matters have been dealt with, but I would ask for amnesty for any offence and any civil liability arising therefrom.
CHAIRPERSON: Right. Thank you. We'll take the adjournment now before we proceed with the next matter. We'll excuse you from further attendance. Thank you and the members of your family who came with you here today, thank you. You are excused.