CHAIRPERSON: Good morning everybody. Today we will be resuming the hearing. When we adjourned last time, Mr van Zyl was in the process of being questioned by Mr Kahanovitz.
MR WILLIAMS: Thank you Mr Chairman, before Mr Kahanovitz proceeds, would you just allow me to address one issue, Mr Chairman?
CHAIRPERSON: Certainly, Mr Williams.
MR WILLIAMS: Thank you Mr Chairman. I must say that I am very displeased with the choice of this venue, Mr Chairperson. This venue is really inaccessible to the victims and to the community of Kewtown itself.
Mr Chairperson, I just want to say that the bombing incident in Kewtown had wider implications in the community, or for the Kewtown community. The community became divided as a result of that incident because local gangsters or local community members were used to destabilise the community and as a result of that, people who associated with these people, were treated with suspicion by the victims or other members of the community.
This is the one chance to address those deep-rooted divisions which arose as a result of, directly as a result of this incident. I would have expected the TRC to choose a venue that is more accessible, it need not necessarily be the Early Learning Centre itself, but there are other suitable venues. I understand from Ms Coleridge that most of the legal representatives of the applicants had no, in principle, objection to the Hewitt Training College, except Mr Slang van Zyl or his legal representative.
Mr Chairperson, I get the impression that any venue is okay, as long as it is in a so-called white area, irrespective of the fact that more bombs had been detonated in this area and surrounding areas than had been the case in Kewtown or surrounding areas, Mr Chairperson.
I will ask the Committee to seriously reconsider this venue and to see whether it is at all possible to get the Hewitt Training College, to enable victims and the community to participate in these proceedings. Thank you Mr Chairperson.
CHAIRPERSON: Thank you Mr Williams. Mr Bizos?
MR BIZOS: Yes, Mr Chairman, I don't know whether the letter written to us, dated the 30th of May is available to you?
MR BIZOS: It indicates, I accept that its contents is true, nobody has - but indicates a very strange state of affairs. It says that the original venue was not available, which we accept, but I want to read the rest of the letter, and I think that the Committee and we and our clients are entitled to an explanation as to whether these decisions are made as a prerogative of Mr van Zyl and his legal representative.
"... We are aware of the strong opposition raised at the amnesty hearing by Mr Martini the legal representative of Mr van Zyl, to the change of venue, ie 7th floor, 106 Adderley Street, Cape Town. On 29th May 2000, the writer attempted to conduct a telephonic conversation with the said Attorney, informing him of the developments in the matter. From the outset of the conversation, he refused to communicate to the writer to the extent of him refusing any future telephonic conversation. Mr du Plessis, representing Mr Burger, Mr Maree, Mr Basson, Mr Barnard and Mr Alex Bosman representing Gen Verster have indicated to the writer that they are not opposed to the change of the venue. We wish to point out that the order, by consent in the High Court application in the case of Slang van Zyl v Truth and Reconciliation Commission states that the TRC "is interdicted from proceeding or continuing with the amnesty hearing in so far as the applicant is concerned, from the 13th of March to the 17th of March, pending the relocation of the venue." The venue referred to in the said order is the Athlone Learning Centre. Find annexed here to a copy of the order, by consent marked Annexure B.
"... In the spirit of reconciliation, we reiterate the words of the Honourable Justice Miller in response to Mr Martini. 'We are aware that there has been a decision made, but I am also fully aware of the anxiety of the victims, and a change of venue I can assure you would be done in consultation with yourselves. It is just done in honest endeavour to get something that is more convenient and more acceptable, for all the people.' Find annexed hereto a copy of pages 763 to 764 of the transcript, marked Annexure C. We await your urgent response, confirmation to the issue of the said venue by not later than 14H00, Thursday, 1st of June 2000."
Now Mr Chairman, what is this power that Mr Martini and Mr van Zyl Slabbert purport to have?
MR LAX: I don't think that is fair on Van Zyl Slabbert.
MR LAX: Your microphone, Mr Bizos.
MR BIZOS: I apologise, Mr Chairman, to the very important figure in public life. It would indeed be a compliment to the applicant, which was not intended.
Mr Chairman, what is it that Mr van Zyl and his Attorney have, that we haven't got that the wishes of the other legal representatives and our clients' strongly felt wishes, are ignored and theirs, are accepted? Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Bizos. Does anybody else wish to address us? Ms Coleridge?
MS COLERIDGE: Thank you Chairperson. Just from the Commission's side, Chairperson, we have attempted as the letter of the 30th stated. Initially we had the Hewitt College, Chairperson, and your last instructions were that we reach consensus on the issue of the venue.
I, the only person to date Chairperson, that raised the opposition, was Mr Slang van Zyl and his legal representative, Mr Martini, acting on his behalf. The Commission attempted to liaise with Mr Martini, he refused to speak to me, Chairperson, as the Evidence Leader on that particular date, and therefore he said, you know, just to get all correspondence, etc, in writing, which I therefore had done, I did that, that was the letter of the 30th. I then circulated the letter to all the legal representatives.
At the outset, Chairperson, I attempted to speak to Mr Martini, just to get consensus whether he agreed to the venue or not and then we were forced in a sense, Chairperson, to communicate to everybody that we have this venue, which we rightfully were to do, which we did, and still Chairperson, Mr Slang van Zyl and Mr Martini raised the opposition.
The TRC, we were involved in the application, the High Court application and we just want to inform the victims Chairperson, that we did vehemently oppose that application and that we are aware of the rights of the victims, but in every attempt that the TRC had made in liaising and communicating with Mr Slag van Zyl's Attorneys, we got strong opposition, and in all instances Chairperson, he threatened legal action once again.
On the basis, the only basis, was that his client feared for his life. The position of the Commission is, Chairperson, that we do have a limited lifespan and we have to take note of that. We are attempting to complete all matters by July/August Chairperson, and it is unfortunate that we have this limited lifespan, that we cannot entertain and oppose this as the Commission would have wanted to.
Due to that factor, we thought that to speed up and expedite this matter, we would have it here, just to get Mr Slang van Zyl here and to hear his evidence, Chairperson, which the victims are entitled to hear.
That is the position of the Commission. We have attempted to do everything in our powers. Thank you Chairperson.
CHAIRPERSON: Thank you, Ms Coleridge. Does anybody wish to ...
MR MARTINI: Well, I suppose Mr Commissioner, I would have to address this. I thought this issue was long gone but unfortunately it seems to raise its head again.
I didn't want to get involved in this debate, Mr Commissioner, but however, I think we need to place correct facts before this Commission, particularly since Mr Bizos selectively, and it seems to be the tendency here, to record only certain things.
I have to address Mr Coleridge because unfortunately there are attacks on myself as a legal representative and my client. Well, first of all, we don't profess to exert any power. What we do have, is a Court order. We followed the justice process and the justice process agreed with my client. That issue has been decided.
What we find remarkable, Mr Commissioner, is if you recall these proceedings were adjourned on the 17th of March. The issue of the venue was an issue, it was an issue that went to the High Court of the Cape Province and an order was granted. The issue raised its head again at the hearings, and there was a lot of debate at these hearings. I think unnecessarily so, however, it keeps raising its head. What then happens, Mr Commissioner, and unfortunately I will have to read a letter into the record, because Mr Bizos supported by Ms Coleridge, chose to address their letter, read their letter into the record.
What we find remarkable is these hearings terminated on the 17th of March, the issue of the venue was an issue. The first time we ever hear from the Commission was on the 1st of June. The Commission, represented at this stage of state, through Ms Coleridge, knew the Athlone area was an issue and that issue was fully ventilated in Court papers in the High Court, so I need not delve in that again.
But at the late stage as to the 1st of June, no attempts were made to even try and attempt to accommodate my client's concern. What we get is a letter saying and I put on record, a distorted letter "there is a venue in Athlone", no attempts made to accommodate my client's concern.
Now it becomes important to read my reply because I think I must also put this on record, there seems to be a personal attack on me as a legal representative, I am here doing a job, protecting my client, and I will do my job to the best of my ability. I will protect my client's rights where possible. Now, we have read, and what is going to be significant, Mr Commissioner, is we have never got a reply to this very important letter.
Ms Coleridge addresses me a letter on the 30th of May, it is dated the 30th of May, it is telefaxed to my office on the 31st of May. Mr Bizos has read it into the record. What is important is that we place my reply on behalf of my client, into the record so we get the truth before this Commission.
I write, acting on behalf of my client -
"... We refer to your telefax, 31st of May, telefaxed at 15H04. The writer takes exception to your unfounded remarks. You have had months to address your aforesaid letter to the writer, however, you choose to telefax it on the date and time aforesaid and arrogantly demand a reply by 14H00 on the 1st of June."
Mr Commissioner, Ms Coleridge had since the 17th of March, she writes a letter on the 31st at approximately four minutes passed three, and demands a reply the next day on a sensitive issue. I carry on to quote from my letter, Mr Commissioner -
"... The writer will arrange to consult with our client and thereafter revert to you at our earliest opportunity on the issue of the venue. At this stage our failure to respond fully to you, mustn't be construed as admission. For the record, the Truth and Reconciliation Commission has already determined the venue, namely 7th floor, Adderley Street."
That was the venue that was allocated after the Court order. Be that as it may, the last paragraph - I continue to quote, Mr Commissioner -
"... the last paragraph of your aforesaid letter is certainly not a recordal of the true facts. The writer was certainly not rude to your Ms Coleridge, as alleged, or at all. The writer informed your Ms Coleridge, in order to avoid any misunderstandings, that she should address the writer in writing on the issue of the venue. The only person who was rude, was your Ms Coleridge, who summarily replaced the received to answer her cellular phone, that was ringing."
I have to put this on the record, because Ms Coleridge chose to give evidence now.
"... The writer certainly did not demand that you refrain from any future telephonic communications with the writer. Such statement is a blatant distortion of the truth. The writer reiterates that he advised your Ms Coleridge that she should address the issue of the venue in writing, in order to avoid any misunderstandings. Since your Ms Coleridge distorts the true content of telephonic discussions, it would now be advisable to liaise with the writer in writing. We would suggest that your Ms Coleridge refrain from unwarranted and untruthful personal attacks on the writer. One can however, understand your Ms Coleridge's personal emotions, which can only be ascribed to her past high handed decision - (we refer to her past emotive comments to the press) - which was proved to be incorrect and costly for the Truth and Reconciliation Commission and taxpayers of this country. In this regard we refer you to the High Court order which included an order for costs against the Truth and Reconciliation Commission. We request that your Ms Coleridge put her emotions aside and act in a reasonable and mature manner, without embarking upon further unwarranted and untruthful personal attacks on the writer. The venue was not only the Athlone Learning Centre, possibly your Ms Coleridge should read our client's affidavits carefully. Significantly the recordal of the Honourable Justice Miller's comments is also selective. We will complete your "selective recordal of such comments" ..."
Mr Commissioner, I pause here. This is in relation to Ms Coleridge and relating to the comments Mr Commissioner made at the end of the hearing -
"... people, and there won't be anything done that will catch you by surprise, it will be done by consensus, hopefully with all parties concerned. Can we leave it at that?"
Ms Coleridge in her letter selectively chose Mr Commissioner's comments of the last hearing, I just completed it for her. For the record, this debate only took place at the end of the evidence as a result of a specific request by the Honourable Min Omar, through Adv Bizos. This was not suggested mero motu by the Commissioner.
Very important now, Mr Commissioner -
"... We assume that your letter seeks our client's consent to the venue referred in your aforesaid letter. Before we formally reply to your aforesaid letter, we require the following information ..."
and significantly Mr Commissioner, it still hasn't been forthcoming -
"... as from which date did the Truth and Reconciliation Commission become aware that the 7th floor, 106 Adderley Street, would be occupied from the 1st of June 2000, by whom is the 7th floor allegedly occupied, is it occupied in terms of Annexure A to your aforesaid letter, if not, please let us have a copy of the relevant document. When was Annexure A to your aforesaid letter, signed? Precisely where is the Athlone Technical College situated, is it in Athlone or the city centre? When was the venue secured by Ms Martin? Was your Ms Coleridge authorised by the Truth and Reconciliation Commission to address and record the content of your aforesaid letter to the writer?"
I pause there, Mr Commissioner. To date, I haven't had a reply to that letter, but it will be important to place another letter on record.
"... Please let us have the aforesaid information as soon as possible, so that we may have such information at hand when we consult with our client, in order to address you fully and issuably on the issue of the venue."
No reply. Bearing in mind, my client was given until two o'clock the next day to reply.
"... Please note that should any decision once again be taken unilaterally, without our client's consensus, our client reserves his rights to approach the High Court for a leave, if necessary."
"... In the interim, all our rights are reserved."
What then happens Mr Commissioner, is I believe this letter came to the attention of the Chief Executive Officer of the TRC and they asked Ms Coleridge no longer to deal with me on this issue, and an Adv Prior liaised with me.
CHAIRPERSON: He is the Legal Officer at the TRC.
MS COLERIDGE: Chairperson, Chairperson, if I can just come in here, just for one - I actually, Mr Martini knows that I referred the matter to Paddy Prior, our Legal Officer because of the correspondence between the two of us, so it wasn't as if the Commission had come, I actually went to our Legal Officer. So just to get that fact straight, thank you Chairperson.
MR MARTINI: Mr Chairperson, if I may finish, Adv Prior communicates with me telephonically, I have no problem with Mr Prior and he writes to me, he says
"... We wish to confirm (this is on the 2nd of June) that according to the Supervisor of 106 Adderley Street, Cape Town, and the letting agents, Golding Commercial Properties, Cape Town, the 7th floor is not available to the TRC. This can be confirmed by Debby McCullum, the letting agent, cellphone number 0829211244. In the circumstances, the TRC has secured a suitable alternative venue for the forthcoming hearing, at the Freeman Centre, Cnr Main - and Upper Portswood Roads, Greenpoint. The venue meets with the various criteria of the TRC for the holding of such public hearings, and it is a short distance outside the city bowl. Would you kindly advise us of your client's attitude towards this arrangement."
Now Mr Commissioner, I get no reply from the Truth Commission to my letters in order to address the issue of Athlone, no reply to my letter. It still hasn't come. Mr Prior communicates with me and now he suggests another venue, which we accept. The next letter becomes important Mr Chairperson, and I am sorry we have to go through this painstakingly, but it has been raised again and it has to be placed on the record. All right -
"... We refer to your letter the 30th of May and the 31st and the writer's subsequent telephonic discussions with Adv Prior. (This is a letter from my office, addressed to Adv Prior on the 2nd of June) Please note that our client still holds the same concerns as regards Athlone as a venue, as was dealt with previously. In addition, our client's submissions as regards altering the venue to Athlone are on record. Our client does not accept the venue in Athlone as said on your letter of the 30th of May, for reasons which need not be elaborated upon at this stage, in view of the new venue. Our client has instructed us to advise that he is prepared to accept the new venue, namely Freeman Centre, Cnr Main Road & Upper Portswood Road, Greenpoint as set out in your letter of the 2nd of June. Notwithstanding our client's acceptance of the new venue, our client insists that adequate and proper security be in place at such venue. In this regard, the writer confirms having advised Adv Prior that after the hearings terminated on the 17th of March the following occurred - a certain Mr Mark Bishop, approached Capt Benade of the Security Unit and requested to see our client urgently. Capt Benade took this gentleman up to a room with our client. Capt Benade duly frisked this gentleman to ensure that he had no firearms. The gentleman then requested Capt Benade to leave the room, which he duly did. This gentleman advised our client of a plot to attempt to assassinate our client, whilst he was at the amnesty hearings. Our client has reported this incident to the authorities. Whilst our client is appreciative that this may be a prank, alternatively a publicity seeker, our client nevertheless regard such incidents in a serious light and as a serious threat to his safety and security. Accordingly, notwithstanding, our client has accepted the venue at the Freeman Centre, Main Road & Upper Portswood Road, Greenpoint, Cape Town. We would request that proper and adequate security be in place at such venue for the entire duration of the proceedings."
"... Kindly confirm that the hearings will now take place at the Freeman Centre, Upper Portswood Road, Greenpoint, Cape Town, that proper, adequate security will be in placed at such venue, more particularly in view of what is stated herein. Finally (and for the record) writer spoke to Debbie McCullum, that is the agent, I was invited to speak to, this afternoon as suggested in your letter. She confirmed to the writer that (1) apparently a month ago the Department of Finance took occupation of a section of the 7th floor, Adderley Street, namely the offices to the right side after entering the double glass doors; (2) the section, namely the open area which was utilised by the public to watch the televised proceedings and the actual hall in which the proceedings took place on the last occasion, together with all the offices to the left of the glass doors, is unoccupied. She did advise however that they are presently in negotiations with the Unions to occupy this vacant space, although no agreement for occupation has yet been concluded. The writer also discussed this with the Building Manager, Mr Carl Kiefer, who confirmed the aforesaid. From the aforesaid discussions, it is apparent to the writer who is aware of the premises having attended at the same, that the venue is available, save for the portion to the right which on the last occasion, was utilised as a press room. Be that as it may, our client accepts the venue in Greenpoint, subject to proper and adequate security being in place as aforestated."
So Mr Chairperson, what we have here is no replies by the Truth and Reconciliation Commission to my enquiries of the venue. Notwithstanding that the Truth and Reconciliation were aware of this issue since the 17th of March, that letter has still not been addressed.
What we also have is the agents and Building Manager of the TRC building, confirming that the 7th floor is still available. So one asks the question "what is going on", Mr Commissioner. But the fact remains, Adv Prior was given the mandate to deal with the venue, notified us of another venue which we accepted and we are here, and we hope that this issue of the venue is at an end now.
Unfortunately I see that there is not many members of the public in the gallery. As the Judge in the court case, the order, the interdict stated, he sees no problem for people of the Athlone community coming out to venues which isn't at a distance from Athlone. In fact Mr Commissioner, if you have to have reference to the affidavits, the TRC provides in a budget for transportation of victims to the venue. So what is the problem?
But I don't want to get embroiled in that dispute, it has been ventilated by a Court of law, we sincerely want to get on with the hearings and not waste time.
To reply to Mr Williams, it is significant what Mr Williams had to say to day, it was never placed on record before, this division of the community in Athlone. Why suddenly two months later, has this now, we hear this for the first time, that this bombing divided the community? Mr Commissioner, let's get on with the purpose that we are here, we are at a new venue, we have accepted this venue, a decision has been taken and let's get on with it. Let's not waste time, taxpayers' money and let's get on with these hearings. Thank you Mr Commissioner.
MS COLERIDGE: Chairperson, there are just a number of issues that I have to address. Chairperson, the Commission takes exception to the fact that Mr Martini is now saying that we never, ever responded to him regarding his letters that he addressed to us.
The fact of the matter is that our Legal Officer, Adv Paddy Prior, took the matter further and actually did liaise with Mr Martini and therefore we are here today Chairperson, in order to get consensus from them, which they accepted Chairperson. The fact that he is stating the Commission never replied to him, we do take exception to that.
And then just on the issue of the victims as well, Chairperson, in relation to transport. We do provide victims' transport, but the Commission, it has more to do with the community at large, that I think Mr Williams was referring to. The onus obviously of the community at large is to get to a venue where it is accessible, but unfortunately in this case, we have the facts before us.
And then just another distortion of the facts, Chairperson, this is more, I don't really want to get into personal debates regarding the correspondence between Mr Martini and myself, but regarding the press statements made by myself, was in relation to the High Court application, which I had the mandate to do. The only statement I made was that the Truth Commission is vehemently going to oppose the application. In that respect Chairperson, there is absolutely nothing derogatory in that sense, it was our right, which we did.
And then also just regarding communications between myself as the Evidence Leader and between Mr Martini, regarding the telephonic conversations, his response to me was Chairperson "I do not want to speak to you, I do not want to speak to you", and he reiterated that quite a few times. The fact that he says I answered telephones, etc, Chairperson, it was at that stage, his comments to me was "I do not want to speak to you", and that was the end of our conversation.
I just wanted to address those issues, Chairperson. Thank you.
MR MARTINI: Mr Chairperson, I take exception to that, that is a blatant distortion of the truth, what Ms Coleridge has put on record. Sorry Mr Chairman, this is very important, because this attacks my integrity.
If Ms Coleridge stands by her convictions, she should have replied to my letter and told me that she didn't distort the truth. What I told Ms Coleridge, she phoned me, Mr Commissioner, she chose to phone me on a landline and then answered her cellphone rudely and then put the phone down. If we are going, I don't want to get into this debate, Mr Commissioner, but it attacks my professional integrity and if she's put that in a letter, I take exception to that and I just want to clear the record. What she has just placed on record, is not correct. She was told to communicate with me on the venue by correspondence, to avoid misunderstandings. Thank you Mr Commissioner.
CHAIRPERSON: Thank you. Yes, well, we have heard all that has been said. I am not aware of the present availability of any other venues, but I think it would probably be in the interests of all of us, if perhaps during the tea interval or maybe the lunch interval, if we could speak to the legal representatives, with the Panel and see if we can finally sort out this matter.
I would at the same time, like to say that this actual venue that we are in now, has been made available to the Commission and we appreciate the fact that we are here. I was under the impression that the whole of the 7th floor was not available, in any event, that wasn't a convenient venue, as convenient, or suitable as this.
But as I said earlier, we are fully aware of the views of the victims, not only the victims, but of the community in Athlone. Perhaps if we can talk it through during a tea interval, we might be able to come up with some solution. But I would appreciate it if we could proceed with the evidence, as Ms Coleridge said, our time in the Commission is getting limited now and our prime concern is to finish matters as soon as possible, but obviously we are not going to be roughshod and let undue haste in any way tarnish the quality of the proceedings.
Would that be acceptable then, if we could speak about this later, off the record, and try to arrive at some conclusion? We've got two weeks here. If it is possible, I don't know, if it is at all, to change a venue, if we can agree to do so, maybe we can. If not, then we will have to proceed with this venue.
As I was saying when we started, Mr van Zyl was in the process of being questioned by Mr Kahanovitz.
MR KAHANOVITZ: Good morning Judge. What time would you like the tea break?
CHAIRPERSON: Well, maybe we can hit it through to lunch today. I don't know if that would be too pressive, would it, seeing that it is twenty to eleven now, we go through to lunch. I apologise to the caterers for that, but we can perhaps have a little bit of a bigger lunch that we would have ...
MR KAHANOVITZ: Judge, I am going to attempt to spell my surname again for the people who transcribe.
CHAIRPERSON: Is it Kanovitz or Kahanovitz?
MR KAHANOVITZ: It is K-a-h-a-n-o-v-i-t-z.
MR KAHANOVITZ: Because according to this record I am not quite able to spell my own surname.
CHAIRPERSON: Do you pronounce it Kahanovitz or Khanovitz?
MR KAHANOVITZ: Either, it doesn't matter.
MR KAHANOVITZ: Judge, also there is an error at page 709 of that record. You will see it roundabout, well, if it was lined, it would be approximately line 10, where it says
"CHAIRPERSON: Sorry Mr Kahanovitz, may I intervene here just on one aspect",
and then a question is put. It says that it is put by me, it was in fact put by yourself.
CHAIRPERSON: Just delete that, Mr Kahanovitz.
CROSS-EXAMINATION BY MR KAHANOVITZ: Yes. Judge, there is one error that, part of the record that suggests that a certain policeman was a member of the South African Communist Party, but I think that will be noted by everyone. More important, at page 728, approximately line 30, there is a question put by me and there is quote "it is not my project, it is Maria's project", that should obviously be "Maree's."
Mr van Zyl, you will recall that towards the end of the proceedings on the last occasion, you were given an opportunity to reflect on the contents of the statements that you made while you were in detention, so that you could return today to point out which portions, if any, were untrue. Are you in a position to now answer that question?
MR VAN ZYL: Yes Chairperson. I have studied the Section 29 statements, it is my opinion that there is no difference with regard to the Section 29 statements and the statement that I submitted to the Honourable Commission and if there are any differences, then I will be able to clear that up.
MR KAHANOVITZ: Mr van Zyl, that doesn't actually answer the question that was put to you and you are aware of that.
You were asked whether any statement contained in those documents, and to be more precise at pages 11 to 60 of bundle B, any statement therein contained is factually incorrect or untrue, what is your answer?
MR VAN ZYL: Chairperson, in terms of the Early Learning Centre incident and in terms of the Dullah Omar incident and in terms of the monkey foetus, the incidents for which I apply for amnesty, there are no differences.
MR KAHANOVITZ: Mr van Zyl, you are avoiding the question. Please answer the question.
MR MARTINI: Mr Commissioner, Mr van Zyl has answered the question.
CHAIRPERSON: I think what Mr Kahanovitz is getting at, the question was "are any of the statements contained in the documentation between pages 11 and 60 of bundle B, factually untrue" and the response was "well relating to the Early Learning Centre, the Omar incident and the money incident, they are correct". I think besides those incidents, are there any other matters that might be factually untrue, contained in ...
MR VAN ZYL: Chairperson, there is only one instance where this person is focusing on, and that is the Lubowski incident, where factually incorrect versions appear in the Section 29 statement, and I do not want to elaborate on that because this is not part of my application, and in terms of one instance for which I did not apply for amnesty, is the burning down of a printing press.
I mentioned there that I gave Gakkie instructions to do this, it was not Gakkie, it was indeed Peaches Gordon.
MR KAHANOVITZ: Mr van Zyl, let's deal with the paragraph concerning Mr Lubowski. Can you direct us to the paragraph which you say contains untrue facts?
MR VAN ZYL: I just want to ascertain, are we on page 58? Chairperson, I read to you and I think it may facilitate matters to comment afterwards.
"... As far as I know, Chap handled Aitcheson. I never saw them together, I do not know what he looks like. Who shot Lubowski, I do not know, I am not able to say, although Aitcheson was tasked to work for him."
This factually is incorrect. The last part - "... Aitcheson was tasked to work for him."
I do not have any knowledge of it, it was said to me, but that is incorrect.
"... The submission was done by Chap ..."
"... Staal and Joe Verster approved it and recommended it to the Chairperson ..."
"... On the 1st of September 1989 I saw Chap made the submission to Chriso ..." (transcriber's interpretation),
"... Shortly afterwards I went to the hotel room and went on leave the same day, I went to Cape Town, that is why I do not have any knowledge about the project and while I was in the Cape, I had Ferdi Barnard there on Omar's matter and he and I were in the Cape when Lubowski was shot. That was the last time I saw Ferdi."
MR KAHANOVITZ: Mr van Zyl, you said it was said to you that Chappie Maree was Atcheson's handler, but that, is that your evidence, it was said to you, but what was said to you is not correct? Is that what you are saying?
MR VAN ZYL: No, in terms of the fact that Chap Maree handled Aitcheson, it was said to me, but I did not see that. That factually is correct.
MR KAHANOVITZ: So what is wrong with the sentence
"... Aitcheson’s my kennis strek, het Chap vir Aitcheson hanteer ..."?
MR VAN ZYL: There is nothing wrong with that, that is not what I have said. What I have read to you, what is incorrect here, I said in the third line, Aitcheson was tasked to work on him, that is the first incorrect statement that I pointed out to you. I did not point the first sentence out to you as incorrect.
MR KAHANOVITZ: All right, so you are saying somebody told you that, which is why you put it in the statement, and you subsequently discovered that it was untrue?
MR VAN ZYL: No, that is also not what I am saying.
MR KAHANOVITZ: Well, is the statement true?
MR VAN ZYL: The statement that Chappie handled Aitcheson?
MR KAHANOVITZ: No, the statement that Aitcheson was tasked to work on Lubowski?
MR VAN ZYL: I don't know about that, in other words that is false.
MR KAHANOVITZ: I don't understand your answer, Mr van Zyl. When you put that sentence, when you inserted that sentence into the statement, and you swore an oath that it was true and correct, on the basis of what knowledge or information did you come to provide the policeman who drafted the statement, with that information?
MR VAN ZYL: Chairperson, that was a Section 29 statement, which was made under coercion and that is just inferences put in here so that a statement could be made, so that one could be released. That is why I am pointing out that it is incorrect.
MR KAHANOVITZ: Are you suggesting that the Investigating Officer who prepared the statement, put those words into your mouth?
MR VAN ZYL: That is not what I am saying, I said these were inferences that I drew.
MR KAHANOVITZ: But you are the person who drew the inferences?
MR KAHANOVITZ: And now you are wishing to withdraw from the inference that you drew, is that what you are saying?
MR VAN ZYL: That is so, because factually that is incorrect. The only reason why I am doing this, is because I cannot prove it. If I could prove it, then I would have told you this is correct.
MR KAHANOVITZ: So you are saying you don't know whether it is true, that Aitcheson was tasked to work on Lubowski?
MR KAHANOVITZ: It could be true?
MR VAN ZYL: It could be so. I do not know.
MR KAHANOVITZ: Judge, might I have one minute to look at a document?
ADV BIZOS: (Microphone not on)
CHAIRPERSON: Yes, Mr Martini, if we can stop doing that.
MR MARTINI: Sorry Mr Chairperson, I accept that, I apologise for that. My client asked me for a legal opinion on the questioning and I said we should carry on answering.
MR KAHANOVITZ: Mr van Zyl, I am going to come back to the Lubowski incident later, so I am going to reserve my questions about the truth or otherwise of what was being said there. Apart from those two paragraphs and the statement made in relation to the printing press, the wrong name that you supplied, is everything else in these statements a hundred percent true?
MR VAN ZYL: According to my perspective, yes.
MR KAHANOVITZ: If I could ask you to look at bundle A, page 74, paragraph 8. You said in your amnesty application
"...I confirm herewith that there was no personal gain involved in my action and that my conduct was with a political motive".
MR VAN ZYL: Yes, that is correct.
MR KAHANOVITZ: You have already admitted that you joined an organisation, whose primary purpose was to maximally disrupt the enemy by the commission of amongst others, criminal acts, including assassinations?
MR KAHANOVITZ: And you agreed to carry out criminal acts on behalf of that organisation?
MR VAN ZYL: I agreed to concur with my instructions, and that this included criminal actions, is so.
MR KAHANOVITZ: The answer is yes?
MR VAN ZYL: Yes, but I think one has to see it in the right perspective.
MR KAHANOVITZ: And in agreeing to commit these acts, your version is that there was no personal gain involved, in other words you are saying that you did it purely for selfless patriotic reasons, because you thought the security of the State was threatened? Is that your version?
MR VAN ZYL: Chairperson, when one continues with that paragraph it says on the following line
"... I saw my task as acting as a soldier and to protect the government of the day and to maintain the State dispensation."
That is why I did this, I was part of a structure that belonged to the Army and where instructions were given to me, which I concurred with. No other benefit, there was no other benefit involved for me.
MR KAHANOVITZ: The part I am interested in, you are saying money had nothing to do with your motive, you were doing it for patriotic reasons?
MR VAN ZYL: That is so. Money played no role in the execution of any of these instructions.
MR KAHANOVITZ: Let's deal with the carrot that was dangled before you when you were enticed to join the CCB. I am just going to take you through various aspects of your package. In the first place, and you have already testified about this at the Harms Commission, you were offered a much better salary than in the SAP. You said your salary increased by approximately one third, is that correct?
MR KAHANOVITZ: You received a BMW318i and R30 000 was paid for that vehicle, correct?
MR KAHANOVITZ: You received a housing allowance?
MR KAHANOVITZ: You received production bonuses?
MR KAHANOVITZ: You had an expense account in the sense that money was given to you to stay in hotels, go out on meals and so on and so forth?
MR KAHANOVITZ: You were given money to set up a business and you were told that you personally could keep the profits from that business?
MR KAHANOVITZ: You were paid a 13th cheque?
MR VAN ZYL: That is indeed so.
MR KAHANOVITZ: Now, in the absence of these financial inducements, I want to put it to you that you would never have given up your career in the South African Police Force in order to assume the risk of becoming a political assassin?
MR VAN ZYL: No, a better offer was made to me and that was through the Army and this was a simple business decision that I took.
MR KAHANOVITZ: All right. Also, another factor that played on your mind at the time was that the Police wanted to transfer you away from Brixton Murder and Robbery, out of Johannesburg, to work at Pietermaritzburg, correct?
MR VAN ZYL: That is indeed so.
MR VAN ZYL: This dealt, this was about an incident where Jack le Grange and van der Merwe were accused of murder and van der Merwe would have alleged to the then Attorney General, Claus von Lieres, that he conveyed certain messages to me which was not true, and I was approached in that regard and I told Mr von Lieres that the statements that van der Merwe was making, were false and because of that I was not prepared to testify about it, and because of my refusal to testify in court that he deemed it necessary to contact Gen Stan Schutte and tell him that there was a breach of trust between the two Officers and because of that, I could not work at Brixton any longer.
MR KAHANOVITZ: Mr van Zyl, if you are asked as a policeman by the Attorney General to come and give evidence at a criminal prosecution, how can you refuse?
MR VAN ZYL: I did not say that I was not prepared, what I said was I was not prepared to testify in his court, to tell him what he wanted to hear, I will tell him what the truth is, but that what I wanted to testify about, was not what he wanted to hear about.
MR KAHANOVITZ: Are you saying that Adv von Lieres was trying to put pressure on you to come and perjure yourself in the court of law?
MR VAN ZYL: No, that is not what I am saying. What he told me was that a statement was made by van der Merwe, which I denied and the mere fact that I denied that statement, he did not place any pressure afterwards on me to say that he would force me to come and testify in court, he left me.
MR KAHANOVITZ: Mr van Zyl, isn't it so that the authorities in the Police Force, were of the view that you were unwilling to come and give incriminatory evidence against your former colleagues from the Brixton Murder and Robbery Unit and for that reason, they decided to punish you by transferring you to Pietermaritzburg?
MR VAN ZYL: That is an inference that is drawn, this was never factually proven. I deny it.
MR KAHANOVITZ: What was the inference that you drew about the fact that they were transferring you against your will to Pietermaritzburg?
MR VAN ZYL: I felt that it was unfair.
MR KAHANOVITZ: Why did you think they were doing it?
MR VAN ZYL: Because of the inference that you made now, yes, that is so.
MR KAHANOVITZ: So a further advantage that you had in joining the CCB was that you would be able to remain in Johannesburg, which is where you wanted to be?
MR KAHANOVITZ: Now, bundle A, page 87, paragraph 22 you deal with the training course that you attended when you joined the CCB and you say that you were told that you would be indemnified against prosecution.
"... I also wish to state that during the course the Managing Director put to us that we would be indemnified from prosecution for any acts of violence which we may commit during the execution of approved projects and we had to see to it that our actions could not be traced back to the Army."
MR KAHANOVITZ: Did you believe this as a policeman?
MR VAN ZYL: Yes, I was naive enough at that stage, to believe it.
MR KAHANOVITZ: But just explain to me, you know how the mechanics, you were well aware how the mechanics of a prosecution would occur. Let's take any hypothetical situation - the CCB commits a crime inside the country, diligent policemen come along, they discover who is responsible, they prepare a case docket, they hand it to the Attorney General, the Attorney General decides to prosecute. What now?
MR VAN ZYL: Will you repeat the question please.
MR KAHANOVITZ: I am trying to, you are saying you were naive enough to believe that you were indemnified. I am asking you to explain your statement.
MR VAN ZYL: It is quite simple as this, Mr Chairperson, at that stage, I was 26 years old. In my opinion just about every member of the Army and the then structures of the Police Force and other structures were brainwashed and were brainwashed by the government and what the government advocated and so forth, and I think it was naive and if you would table the same proposition today to me, I would not accept it. I cannot explain it any better.
At that stage I was aware of how the prosecution structures worked and the investigative structures worked, but that is what I believed at that stage. I think that it is no secret certainly that in most countries of the world, organisations like the CCB existed and probably still exists and that over the course of time, they look after those people so that those people are not exposed to any prosecution.
So it is in that light that I felt that we would be indemnified from any prosecution.
MR KAHANOVITZ: I would have assumed at this course, you as a policeman with several years of experience at that stage, would have wanted to ask Col Verster a number of questions about the mechanics of this indemnity?
MR VAN ZYL: I did not do this.
MR KAHANOVITZ: Are you suggesting that in a country such as South Africa, or in other countries, there are some secret laws that no one knows about, that indemnity people who commit murders on behalf of their governments?
MR VAN ZYL: I do not think that one could qualify it as secret legislature, but I think there are secret structures who make this possible, yes.
MR KAHANOVITZ: You see, I can understand if your evidence was that you believed that the docket might disappear or that pressure would be put on the Attorney General to make sure that no one was prosecuted, but I don't understand your evidence where you say that you honestly believed that people would be indemnified against prosecution.
Do you understand the distinction between the two?
MR VAN ZYL: Technically I do understand the word indemnify.
MR KAHANOVITZ: Now, you were told at this course that the South African Police would not be able to act against the kind of people who were going to be your targets and do I correctly assume this is because the Police were not supposed to break people's windows or murder them?
MR VAN ZYL: That is so. And I referred furthermore Chairperson, that no evidence existed against those persons that would have enabled the Police to act legally against them, in other words to arrest and prosecute them.
MR KAHANOVITZ: Now if you could turn to page 91 of bundle A, paragraph 31, you deal with the stage at which you leave the Police Force and you go and work for a company called Matthysen Busvervoer. You go on to stress in paragraph 31
"... I also wish to state that Matthysen did not have any knowledge of any of our activities or projects, not as far as I know."
MR KAHANOVITZ: And I have seen, you have given evidence on a number of occasions in various forums, on each occasion you have stressed that Mr Matthysen had no knowledge of the activities of the CCB members that were now linked up his business?
MR KAHANOVITZ: Why? Why are you so keen to protect Mr Matthysen?
MR VAN ZYL: It is not an instance of me protecting him, it is the truth.
MR KAHANOVITZ: How many buses did Mr Matthysen have?
MR VAN ZYL: Approximately 80 at that stage.
MR KAHANOVITZ: Now you were "employed" from May 1988 to March 1989 at Matthysen, approximately a period of 11 months, you were on their book, correct?
MR KAHANOVITZ: Now, the following activities are taking place at Mr Matthysen's bus company, suddenly Mr van Zyl, Mr Burger, Mr Maree, Mr Botha become his employees, but he doesn't have to pay their salaries, correct?
MR KAHANOVITZ: In fact these people do no work whatsoever for him?
MR KAHANOVITZ: He gets R30 000 deposited into his bank account to buy you a BMW, correct?
MR KAHANOVITZ: And I assume in similar fashion money was deposited into his bank account to buy cars for the other Region 6 members?
MR KAHANOVITZ: Mr Matthysen was also a good friend of Staal Burger, correct?
MR VAN ZYL: That is indeed so.
MR KAHANOVITZ: Yet, all these things are happening over a period of 11 months and Mr Matthysen has no knowledge of the activities of these people who are apparently working for him?
MR VAN ZYL: Mr Chairperson, I just want to explain it in the following way. What I said here is that I mentioned that Matthysen had no knowledge of any of our activities or projects, I specifically referred to the projects for which I am applying for amnesty and also the other projects mentioned in my statement.
Mr Matthysen was very aware of it that we were working for the Army, he was one hundred percent informed about this, but he was not, he did not have any knowledge about the specifics of what we were busy with, in other words the project regarding Min Omar, or the project regarding the monkey and that is what I am trying to say to you.
MR KAHANOVITZ: In other words he knew that you were involved in covert activities on behalf of the South African Defence Force, but he didn't know of the details of those activities?
MR VAN ZYL: I never discussed anything with Mr Matthysen regarding my activities, being covert, or whatever aspect of the work it might have been. I can admit that Mr Matthysen did know that we were working for the Defence Force, but the degree to which he knew about it and what he knew about it further, I cannot say. You will have to ask Mr Burger about it, they were good friends. Maybe he told him more.
CHAIRPERSON: Sorry, could I just ask a question. Do you know whether Mr Matthysen received any benefit for facilitating your organisation in the way that he did?
MR VAN ZYL: None, Mr Chairperson, not that I know of.
CHAIRPERSON: He just did it, just let people come onto his employ, because there would be some ramification, you cannot just employ people like that, you know, you've got to enter Paye As You Earn, tax returns and Workman's Compensation, all that sort of stuff that an employer has to do to comply with certain regulations? It is not just so easy to write names in a book and say "okay, they are my employers", it goes further than that.
MR VAN ZYL: I agree with you Chairperson, but I once again want to sketch it out for you that our employers' tax and our UIF, I don't know if they subtracted it back then, but our tax was already deducted by the Army before we received our salaries.
It was not the function, as I understood it, of Mr Matthysen to subtract this amount of money. Mr Matthysen in all probability, as I see it, only facilitated us by giving us cover. In other words myself and Staal and Calla and Chap, could give our then colleagues at Brixton and other people that we knew, in a fraudulent manner, pretend to be employees of Matthysen and Matthysen would then confirm this.
We didn't do any work for him, for which he had to compensate us. We got our compensation or our money from the Treasury.
CHAIRPERSON: So, he would at least have benefited indirectly in the sense that your salaries, payable by him, would be reflected in his books, as operational costs, which would reduce the profits that he had made, and therefore he would pay less tax, because of the bogus salaries for all those people being paid? There would be some benefit like that?
MR VAN ZYL: No Mr Chairperson, not even in this case, because we received our salaries in cash and the salaries did not go to Mr Matthysen and was deposited into his bank account and he gave us a cheque. The only money that I know of that went directly to Mr Matthysen was the R30 000 that the State had approved, or the then Department of Defence, had allocated for me purchasing my vehicle.
That R30 000 as far as I know, was deposited into his account, by him and then he wrote out a cheque so that I could purchase the vehicle, and that is all that I know of.
MR KAHANOVITZ: Mr van Zyl, have you seen Mr Matthysen since your days in the CCB?
MR VAN ZYL: I saw Mr Matthysen about two years ago, over a period of about 12 years. I saw him regarding a business transaction, because of the work that I am doing at the moment, and he had a problem and I saw him relating to this and since then, not.
MR KAHANOVITZ: So he was a client of yours at some stage?
MR VAN ZYL: Yes, if you want to call it a client, then you may call it a client, but I did not do any investigative work for him, it was only a conversation regarding a potential investigation. At the end of the day I did not do any investigation for him and I did not send him an account.
MR KAHANOVITZ: All right. Do you know if Mr Matthysen is still in business?
MR VAN ZYL: I understand that Mr Matthysen did retire at a certain stage, and I do understand that he is involved in business again, also a bus company. From where he functions, I do not know. This is what I hear.
MR KAHANOVITZ: Do you know where Mr Matthysen lives at the moment, where can we find him?
MR KAHANOVITZ: You don't know where?
MR KAHANOVITZ: And his business, where is it located?
MR KAHANOVITZ: And the original Matthysen bus company, where is that located?
MR VAN ZYL: The original Matthysen bus transport service was sold to Unitrans, the Unitrans Group. They bought it, although the buses are still operating under the name of Matthysen Bus Service, they bought the whole service.
MR KAHANOVITZ: Now, your first project that you dealt with in the Western Cape, was a project to burn a microbus. Now, you deal with that at page 95 of bundle A, paragraphs 36 and 37 and the crux of what you say is that you went down to the Cape in March of 1989 and Peaches had recruited two other people who were going to work for you?
You say also that you had received information about a SWAPO member, from Peaches, this SWAPO member had a microbus which he was using to transport ANC and UDF members to a terrorism trial that was on the go in the Cape. Correct so far?
MR KAHANOVITZ: You go on to say that Peaches supplied you with the details about this microbus and where it is parked, also the details of the two people that were going to work for you, namely Ismail and Isgak, also better known as Gakkie and you then go on to say that, this is in paragraph 37, that the Co-ordinator, that is Mr Basson, approximately a week later, gave you authority to prepare a preliminary study for a project for the burning of this microbus. Correct?
MR KAHANOVITZ: You go on to say that you did this study, handed it to Mr Basson who then placed it before Staal Burger and that the proposal was that the kombi should be burnt by Ismail where it was parked in the evenings, in Athlone, correct?
MR KAHANOVITZ: Subsequently an "in-house" was held, you received approval for the project and the plan was that Ismail would be paid R1 500-00 for the execution of the project, correct?
MR KAHANOVITZ: Now, who was the SWAPO member who owned this microbus?
MR VAN ZYL: No idea, Mr Chairperson.
MR KAHANOVITZ: Did you ask at the time?
MR VAN ZYL: I will accept that that specific person's name was known at that stage, and that it would have appeared in documentation, but it was, I cannot tell you now.
MR KAHANOVITZ: Was it important that the microbus belonged to someone who was a member of SWAPO or would you have burnt the microbus even if it belonged to a private transport company?
MR VAN ZYL: I think it is very difficult to say, I will accept that there would have had to be a relationship with a banned organisation.
MR KAHANOVITZ: Are you saying that you viewed the owner of the microbus as being a person who was deserving of punishment?
MR VAN ZYL: What happened Mr Chairperson, is that there were names of persons who allegedly were members of SWAPO and these names were given to me.
These names I gave to Peaches and Peaches according to him, could track down one of these people, and additionally he brought it under my attention, that that person was responsible for supporting supporters to a terrorist hearing with the bus. Whether he was the owner of the bus, I do not know.
I channelled this information through to the Co-ordinator and I assume that this information was tested by means of the Information Structure and as a result thereof, I received instructions to burn out the vehicle.
MR KAHANOVITZ: What purpose would be served by burning this bus?
MR VAN ZYL: I think it would have been a disruptive action, Mr Chairperson, maybe to disrupt people for one or two days, so that they could not get to the trial.
MR KAHANOVITZ: So for you in your own mind, it was justifiable to burn someone's microbus, merely to attain the objective of maybe interrupting one or two days' of transportation to a terrorism trial, is that what you are saying?
MR VAN ZYL: What I am saying is that I received the legal instruction to do that. At that stage I did not think it through, and I did not think whether it was justifiable to burn out the bus or not, I just did what was asked of me to do, and I have already told you that I think if they were to give me the same instructions today, then naturally I wouldn't do it.
At that stage I was very naive.
CHAIRPERSON: It couldn't really have been a disruptive action? I mean, you know, if my kombi gets burnt down, then I catch a taxi. So if I want to get to a destination, I am not going to be disruptive by it, it is not like it was the only transport available to those people? There is a huge amount of public transport, surely?
MR VAN ZYL: I agree with you Mr Chairperson, but I cannot think that there could have been any other reason for burning out the bus, other than it being a disruptive action.
CHAIRPERSON: Or just a malicious action, just to spite the driver or the owner of it?
MR VAN ZYL: No, I thought that it was a disruptive action so that we could prevent them from using the transport of supporters to go to the terrorist trial.
MR KAHANOVITZ: What was wrong with people going to attend the terrorism trial? Why should their families, friends, not go and watch the trial?
MR VAN ZYL: Mr Chairperson, it was back then, in a time of undeclared war where we were fighting against the ANC, we were fighting against SWAPO, they took certain steps against us and we against them, and today you can ask yourself many questions, whether it was correct or not.
At that stage any person who then associated him- or herself with the then enemy, were seen as an enemy by me.
MR KAHANOVITZ: You have also just said that you were merely obeying a lawful instruction. We have debated this at the previous hearing, I am thinking that might have been a slip of the tongue on your part, it couldn't possibly have been a lawful instruction to go and burn someone's kombi?
MR VAN ZYL: No. It could not be lawful, but I will once again say that within the context of me receiving instructions, in terms of the structure that had been set up in which unlawful deeds were committed, and it is within that context that I saw it as a lawful instruction.
I know that it was not lawful.
MR KAHANOVITZ: A lawful unlawful command?
MR VAN ZYL: You can call it that.
MR LAX: Can I just interpose, there was a second part of that answer that perplexed me a little bit, Mr van Zyl.
You said in essence, you were just following the instruction, you hadn't formed any assessment yourself, you said you just fed the information through, the instruction came back? I asked this question of Mr Verster when he was testifying, you wouldn't have fed information back if you didn't think there was some validity in the objective of feeding that information through, isn't that so?
MR LAX: So in fact you did form your own assessment of that information and you did form your own assessment of the object of sending that information through?
MR VAN ZYL: I understand what you are saying and I agree, but I am not totally sure what the crux of the question is.
MR LAX: The crux of the question is quite simple, really. In a sense your previous answer was to deflect the responsibility for that action to those who gave you orders, and what, and thereby to indicate in fact that you yourself didn't really associate with the object entirely, it was simply a matter of following orders. What I am saying to you based on your answers to me now, is that in fact you did associate with the object, you had to assess the object and you had to assess the nature of it, otherwise you wouldn't have sent the information through with the kind of approval that resulted in then the decision to go ahead? It was explained to us, let me just clarify this, it was explained by Mr Verster that you were required to do your own assessment and in a sense, in providing a report of a positive nature, you actually supported the decision, are you with me?
MR VAN ZYL: I hear what you are saying. Firstly, we received instructions that we had to execute. It is so that one was part of the gathering of information for certain of those projects, it is so that one was part of the presentation stage that happened and one can say that there had been a very eager interest from our side, over and above the fact that we executed instructions, and that we followed up those instructions, but it was all within the work structure.
But it does not matter with what proposals I went to my Regional Manager or with what proposals I went to the Co-ordinator, but the eventual decision of what had to be done, and what did not have to be done, was with the Managing Director and the Chairperson, and from there we received the instructions and this is the reason why I want to tell the Honourable Commission how I understand it.
MR LAX: You see, I want to question what you are saying in essence, because that is not how Mr Verster put it to us the last time we were here.
The proposals for these actions, came from you guys, as the kinds of projects you were suggesting should be carried out. You were the people who made those proposals, you made the presentations to the Regional Managers for their consent and approval. There is a big difference between taking orders and putting forward a proposal which you want them to approve and that is really the emphasis of my question.
MR VAN ZYL: My first instruction, when a project was identified or a target was identified, being elimination or burning it out, I would receive an instruction from my Regional Manager who would tell me, here we have information, let's name the bus incident, "here is information relating to the bus incident, I want you to do a pre-study about how this bus would have to be burnt out" and with this instruction I would come to Cape Town and I would meet my structure, I would make a proposal, I would put the proposal in writing and I would send it back, or I would submit it to the Regional Manager. As a result of this proposal, an "in-house" is held where the project would then, at the end of the day, be approved or altered a little bit.
MR LAX: So, if I understand you correctly, you are saying the initiative came from above, you simply did the reconnaissance, the fact gathering and so on, and then sent it back up and the decisions were taken at that level?
MR VAN ZYL: That is absolutely so, Mr Chairperson. The initiative did not lay with us at grassroots level, we did not identify people and persons and say "here is Mr X and we propose that he be eliminated". Those instructions came from the top, and we were only part of the preparation that was made in order to execute these instructions.
MR LAX: And as I have said earlier, in my lead into the question, that is in essence a different view to how Mr Verster put it to us when he testified?
MR VAN ZYL: It might be the case.
MR KAHANOVITZ: Thank you Mr Lax. Mr van Zyl, let's clarify the various stages of the evolution of a project, because it is going to come up again and again.
Before you would make a written presentation to the Co-ordinator, Mr Basson, what would happen? What would cause you to start taking steps?
For instance in the Omar case, you said that you were given names about certain prominent figures, you came up with the name of Mr Omar, take us through the next stage before you start preparing this written document, that you would give to Mr Basson, what you call a "voor-studie"?
MR VAN ZYL: Is this specifically regarding Mr Omar?
MR KAHANOVITZ: No, no, just in general terms.
MR VAN ZYL: What would happen is I would either receive an instruction from the Co-ordinator or from the Regional Manager, that would be specific and it would tell me "go and investigate the possibility that this site must be damaged, or go and investigate the possibility that this person would have to be eliminated." In other words, I would then receive an instruction to do a preliminary study and then I would have to come back.
I would have to contact my structure and I would evaluate the situation and investigate it and then I would go back to my Regional Manager, with the post possible proposal or to the Co-ordinator and I would say to them "listen, I propose that this project can be executed in the following manner."
MR KAHANOVITZ: Let's pause there, because you have already given evidence that Adv Omar's name was not handed to you from above, but in fact was supplied by you from below, as a consequence of information that was fed to you by your informants based in the Western Cape?
MR VAN ZYL: No, what I said is that it is the case that Min Omar's name was given to me by my structure and then that I gave this name to the Co-ordinator so that the Co-ordinator could process it.
But the instruction, the further instruction in terms of Min Omar, came from the senior structure, to do a preliminary study. The gathering of the information, that phase relating to Omar, was a secondary part of my work, and I executed it and I did it, but I did not necessarily expect them to come back to me relating to Min Omar and say to me "prepare a project".
They could take this information and they could have given this information to a person in another region to handle it, or they could have given it to another person who was in my cell, to handle it.
MR KAHANOVITZ: Two central questions I would imagine that are involved on each occasion - who is the target, who is the target; why are they a target and thirdly, what steps should be taken against that target. Do you agree with me, those are obviously three central issues.
MR KAHANOVITZ: When you present your written "voor-studie", would you deal with those issues?
MR VAN ZYL: No. Because in my preliminary study, a target had already been identified to me and this target would be identified to me by the command structure.
MR KAHANOVITZ: Yes, but Mr van Zyl, obviously they want to know from you as the man on the ground, as regards what steps should be taken. Please Mr van Zyl, tell us in your "voor-studie", are we talking about breaking a window here, burning a car, or killing the person?
MR VAN ZYL: No, when I receive my instructions regarding a preliminary study, they would say to me as was the case with Omar, a preliminary study would have to be done, so that he could be eliminated.
A preliminary study would have to be done in terms of the bus, so that it could be burnt. I will receive my instruction, it is not a case of me getting a cheque that I can fill in any amount. I will just follow specific instructions.
MR KAHANOVITZ: So the "voor-studie" is merely concerned with the strategy and the tactics that should be employed in order to achieve the objective that is being handed to you by your superiors?
CHAIRPERSON: Sorry, if we take the burning of the bus, you said that you were told by Peaches, was it, that the bus belonged to a SWAPO member who were transporting people to and fro for a trail, is that right?
CHAIRPERSON: Then you would have then fed that information to your Head Office, is that right?
CHAIRPERSON: But would you at that stage have said, made any recommendation that the bus should be burnt or the SWAPO member should be killed?
CHAIRPERSON: So you just say "there is a bus, there is a microbus, a kombi, that is ferrying people to and from a trial that we believe belongs to a SWAPO member, fullstop?"
MR KAHANOVITZ: That is correct.
CHAIRPERSON: So somebody then makes a decision rather to burn the bus than to slash its tyres and to kill the owner, that comes from somebody else, and you have no input in that at all?
MR VAN ZYL: No. That is absolutely correct.
CHAIRPERSON: So your instruction is then to investigate the possibility of burning the bus, not just "investigate and come back to us with what would be the best course to follow"?
MR VAN ZYL: Regarding my projects, I had specific instructions that I received and I can explain myself in this way, and I can say that in my cases, regarding all my projects, I had clear instructions and no proposals came from my side, saying that we had to do this or that.
CHAIRPERSON: Thank you Mr Kahanovitz?
MR KAHANOVITZ: But Mr van Zyl, I am finding this very difficult to understand because just imagine a conversation with you and Mr Basson, okay, you are now going to tell Mr Basson "I've received this information about this microbus, what I can tell you, there is a microbus, it is in Cape Town, it belongs to someone from SWAPO, it is used to transport people to a terrorism trial"?
MR KAHANOVITZ: Mr Basson does not say to you "but, what are we talking about here, Mr van Zyl, should we get the Traffic Police to go and give them a parking ticket"?
MR KAHANOVITZ: You had absolutely no discussion with Mr Basson as to what steps, if any, might be taken against the owner of the microbus or the microbus itself?
MR KAHANOVITZ: So if they come back and they had said "thank you for your information, Mr van Zyl, the plan is that you must kill the man who owns the microbus", do you accept that?
MR KAHANOVITZ: And you would have gone ahead and executed that instruction?
MR KAHANOVITZ: All right Sir, you now have this preparatory study, it is in writing, in the case of this project, how long was your written submission?
CHAIRPERSON: Are we talking about the microbus?
MR KAHANOVITZ: The microbus, yes, how many pages?
MR VAN ZYL: I cannot recall. I would have to guess, probably two pages, I cannot recall.
MR KAHANOVITZ: Now, Mr Basson, he reads it. I assume at that stage he can say "we are not even going to have an "in-house" on this project, because I think it is nonsense"?
MR VAN ZYL: Could you please repeat that?
MR KAHANOVITZ: Mr Basson's role as the Co-ordinator, he must filter through the information which the operatives give him in their written submissions in order to decide whether or not an "in-house" should be held to take the project further or do you hold an "in-house" on every written submission that comes, that is put on the table?
MR VAN ZYL: No. I accept that Mr Basson would then receive instructions to say that a pre-study has to be done and an "in-house" has to be held, but not, it is not necessary with regard to each pre-study that is done.
I believe that an "in-house" would be held. I cannot answer that question.
MR KAHANOVITZ: But in relation to every written submission that you made, preparatory submission that you made, a subsequent "in-house" was held?
MR VAN ZYL: That is indeed so.
MR KAHANOVITZ: Now, dealing again with the kombi. Now an "in-house" is held, I assume at this "in-house", Mr Basson and Staal Burger would have been present?
MR VAN ZYL: Along with the Chairperson, I beg your pardon, the Managing Director.
MR KAHANOVITZ: So around this table we've got Basson, Verster, Burger and van Zyl and now you are sitting, having a discussion about this microbus?
MR KAHANOVITZ: How long was this meeting?
MR VAN ZYL: I cannot tell you, but I would accept that it could have been anything from half an hour to probably an hour, hour and a half, I am not able to say.
MR KAHANOVITZ: Now, if Mr Burger wants to say "I think this is a stupid plan to burnt his kombi, it makes no sense", are those sorts of issues then discussed at the "in-house"?
MR VAN ZYL: What is discussed at the "in-house" Chairperson, is the submission of the pre-study that has been placed in writing by me, along with inputs from the Co-ordinator and inputs from the Regional Manager, that is what would be discussed there in order to bringing the project to execution according to the pre-study that had been done.
MR KAHANOVITZ: So you don't discuss whether puncturing the tyres might be better than burning the microbus, all you discuss is how we are going to go about burning a microbus?
MR VAN ZYL: I cannot tell you now whether in this specific regard, or in this specific instance, alternatives were discussed with regard to the minibus. That is possible that it was done, it is only humanly possible that alternatives would be discussed, but at the end of the day, and that is why at the end of the day the primary plan which was submitted, is actually discussed.
MR KAHANOVITZ: So, just in relation to the incidents that you are applying for amnesty for, we can accept then that at the time the "in-house" was held, a plan in the case of the Early Learning Centre, had already been approved and accepted to sabotage the building, all you would be discussing at your "in-house" were the mechanics of the plan - when, where, how, with what equipment, involving which operatives?
MR KAHANOVITZ: Similarly in the case of Min Omar, at the "in-house", before the "in-house" started, it had already been decided to eliminate Min Omar, all you would be discussing was who is going to do it, when are they going to do it, how are they going to do it, how much are they going to be paid and so on and so forth?
MR KAHANOVITZ: What was your understanding as a member of Region 6, as to who had decided?
MR VAN ZYL: I understood it that the final decision was the Chairman's decision and I would then accept that under the circumstances, the two persons who really decided whether a project would be executed, whether it should proceed or not, was the Managing Director, Joe Verster, or the Chairperson, Gen Webb, in certain of the projects.
MR KAHANOVITZ: You see Mr van Zyl, you have also given evidence that what would happen after this was that there would be "'n tweede in-huis", and at that "tweede in-huis", the people who would be present would be Joe Verster and Gen Webb?
MR KAHANOVITZ: Correct, and they would be the only people?
MR VAN ZYL: As far as I know, but it may be that in certain regards, the Regional Manager would be called in. Whether this was done, I don't know. My understanding of it, I understood during the second "in-house", only the Chairperson and the Managing Director would be present.
MR KAHANOVITZ: But you see the evidence of Gen Webb as I understand it, and Col Verster's as I understand it, is that in order for a project to gain approval, it had to be approved by the Chairman, Gen Webb, in consultation with the Managing Director, Col Verster. Correct?
MR KAHANOVITZ: The meeting at which that process would occur, is known as a "tweede in-huis", correct?
MR KAHANOVITZ: If you follow the logic of what they are saying, until that meeting has taken place, there can be no project to eliminate Dullah Omar?
MR KAHANOVITZ: But you see, what you have just said is entirely contradictory to what you have said before? You say you walk into an "in-house" on the basis, on the premise, that there is already a decision that has been made, that the go ahead has been given for a project to eliminate Dullah Omar, all that needs to be discussed, is the mechanics, are you with me?
MR VAN ZYL: Yes, that is what you said. That is not what my testimony has been, but please finish your statement, I shall answer it.
MR KAHANOVITZ: But on Gen Webb and Col Verster's version, and in fact on your original version, at the stage that you are having the "in-house", Gen Webb knows nothing about the project?
MR VAN ZYL: Yes, that is correct, I agree with that, but at that stage Chairperson, that project has not been approved yet. The project is only approved when it is submitted to the Chairperson and he gives his approval, and only then would I receive an instruction to execute that project.
I think where the misunderstanding is here is these recommendations which one has to refer to, which has been done during the first "in-house" where I am present, a plan is then recommended to the Managing Director and that plan is taken further by him, to the Chairperson, and only at that level is it approved and then I shall receive an instruction to execute it.
CHAIRPERSON: I might have misunderstood, but I thought that initially you, let's just take the case of the microbus, you had sent up information, "there is a SWAPO member, got a microbus, using it to transport ANC supporters", you had sent that information up, with no comment, nothing, just straight information.
Then there must have been some sort of decision, I don't know how binding it was or whatever, at the end of the day, but somebody made a decision, coming back to you to say "look, carry out a preliminary investigation in regard to the possibility of burning that kombi", in other words somebody made the decision that that kombi should be burnt, not that the owner should be killed or that the tyres should be slashed. So you then do that?
CHAIRPERSON: And you say "okay, it is parked out of a particular house in Athlone every night and we can send somebody and burn it" and you put up a proposal?
CHAIRPERSON: But it is not really a proposal, it is a suggested method of carrying out an operation?
CHAIRPERSON: How the actual decision to burn should be carried out?
CHAIRPERSON: Then there is an "in-house" on that?
CHAIRPERSON: And that decision to burn, may or may not be changed, somebody may say "well, okay, let's instead of burning it, let's slash the tyres or kill the owner", is that possible?
CHAIRPERSON: And then after that decision, it goes to a "tweede in-huis"?
MR VAN ZYL: That is correct, where the decision is then taken whether the project will be executed or not.
CHAIRPERSON: So it is a whole long procedure?
MR VAN ZYL: That is correct Chairperson.
CHAIRPERSON: It doesn't matter what the nature of the operation as?
MR KAHANOVITZ: Mr van Zyl, what you are saying would boil down to this, let's take the example of Min Omar, before Gen Webb has even indicated whether he regards Adv Omar to be a suitable target for elimination, you would have gone to hire the potential assassins in the sense that you would have spoken to people and you would have said "are you willing to assassinate Dullah Omar, if so, how much money do you want for the job", because you would need that information to go to the "in-house"?
MR KAHANOVITZ: Correct? You are telling us that you would then, you would have exposed the State to huge potential risk about this project in circumstances where Gen Webb doesn't even know that there is such a project?
MR VAN ZYL: That is how the system worked. There was no other way.
MR KAHANOVITZ: But are you saying that we must, must we assume that Col Verster even before the "in-house" takes place, has approved the selection of Min Omar as a target, or on your version, he too hasn't heard about it yet, because he is only going to hear about it when the "in-house" is held, the "eerste in-huis"?
MR VAN ZYL: The first time that I for example discussed the Min Omar incident with Joe Verster was at the first "in-house", I do not know whether he had knowledge, he controlled the whole structure, so that may be possible.
MR KAHANOVITZ: But you and Mr Basson couldn't possibly just off your own bats go off and start offering money to people to assassinate Dullah Omar?
MR VAN ZYL: No, that was not an incident of us going left and right and offering money to persons. In order to enable me to make a proper pre-study, I have to for example know how many persons I would use to execute the project and what they would be paid for their services, that is correct yes.
But this is information that I do need, and this is the risk attached to it, that is how the system worked, and that is how we executed it.
MR KAHANOVITZ: Before you would prepare your written "voor-studie", wasn't it so that Mr Basson would have gone to speak to Joe Verster to say "look, I have spoken to Slang van Zyl, he has certain information about this kombi in Cape Town and so on and so forth, do you want him to prepare a "voor-studie"?
MR VAN ZYL: I do not know Chairperson, that is a question that Wouter would have to answer, whom he spoke to, with what persons he liaised after he for example had received information from me with regard to the minibus, I do not know. The structure worked as we had explained, on a need to know basis.
I went up to Wouter Basson and whom he liaised with further, I am not able to say.
MR KAHANOVITZ: Just to return to some final issues on this microbus. The decision to use Ismail to burn the microbus and not his colleagues, Gakkie or Peaches, whose decision was that?
MR VAN ZYL: That was my decision.
MR KAHANOVITZ: Why did you make that suggestion?
MR VAN ZYL: At that stage I wanted to test Ismail, I regarded it as a relatively low risk project.
I had the choice, I could have used anyone of my three operatives, so it was only a decision.
MR KAHANOVITZ: I am just trying to work out your reasoning, why you are involving more people into the loop? You've now got three people who know about this project, as opposed to one, for instance?
MR VAN ZYL: That is indeed so, but that was the decision that I made.
MR KAHANOVITZ: You don't really know?
MR VAN ZYL: That was just a decision.
MR KAHANOVITZ: All right. Now, you decided that R1 500-00 was a reasonable amount of remuneration to commit this kind of damage to property, correct?
MR KAHANOVITZ: Where did you get the figure from, was this what the man offered to do the job for, or did you offer him that amount? How did you arrive at that figure?
MR VAN ZYL: It happened by means of negotiations, because I would make the first offer.
MR KAHANOVITZ: Did you have some guidelines from the CCB as to ...
MR KAHANOVITZ: No? There was no going rate for a murder?
MR KAHANOVITZ: Subsequently you discovered that you had been cheated, is that correct?
MR KAHANOVITZ: Did you try and get your money back?
MR KAHANOVITZ: But at the time that you discovered that you had been cheated, you were still very much involved with both Gakkie and Peaches, correct?
MR KAHANOVITZ: And Ismail was their man, correct?
MR VAN ZYL: Ismail was a third person whom I handled.
MR KAHANOVITZ: Yes, but they ...
MR VAN ZYL: They were all three known to each other.
MR KAHANOVITZ: Yes, but they brought him to you, correct?
MR KAHANOVITZ: Yes. What I don't understand is if Peaches' contact, weren't they in the same criminal gang, Gakkie and Peaches were?
MR KAHANOVITZ: Not "mag", you know what gang they were a member of, don't you?
MR VAN ZYL: I think they were members of the Americans.
MR KAHANOVITZ: Wasn't Ismail also in the Americans?
MR KAHANOVITZ: In any event, you are dealing with Peaches, the man that Peaches has brought to you as a further operative that could be of use to you in the Western Cape, has now cheated you out of R1 500-00, but you take no steps to either recover that money from Ismail directly or through Peaches, why?
MR VAN ZYL: I didn't deem it necessary.
MR KAHANOVITZ: Why wasn't it necessary?
MR VAN ZYL: It was just a decision, I did not deem it necessary to do it, otherwise I would have done so.
MR KAHANOVITZ: Don't you think it would send out a very bad message to Peaches and these other people, "we can cheat this van Zyl chap and he does nothing about it"?
MR VAN ZYL: I believe that is what he thought, yes.
MR KAHANOVITZ: Mr van Zyl, we are still trying to clarify, let's take a proposal to eliminate somebody, we are still trying to work out exactly where that proposal originates.
MR VAN ZYL: I think you would have to ask that of the Co-ordinator, or you must have asked Mr Verster.
MR KAHANOVITZ: We did ask Mr Verster, Mr Verster says it originates with people like you?
MR VAN ZYL: That is incorrect.
MR KAHANOVITZ: Is his evidence in that regard, wrong, then?
MR KAHANOVITZ: All right, I want to turn now to the plot to assassinate Mr Omar.
Let's deal with the preparation of the "voor-studie". Just some background, you had received this information, you had been asked to go and see who were prominent radical figures in the Western Cape, correct?
MR KAHANOVITZ: As a consequence of that process, you had fed that information to your superiors?
MR KAHANOVITZ: Do I take it at that stage, there was as of yet, no project to eliminate Dullah Omar?
MR VAN ZYL: That is entirely correct.
MR KAHANOVITZ: In various of these other cases that have dealt with the CCB, there is continuous reference to something called a "Binnelandse Teikenlys". Are you aware of such a document?
MR KAHANOVITZ: Did you ever see a target list?
MR KAHANOVITZ: Now, this information is now fed upstairs, what, at what stage were you asked to prepare a "voor-studie" on Dullah Omar? What triggered that event?
MR VAN ZYL: I am not certain whether I received that instruction because of the fact that I had supplied information with regard to Min Omar to the structure, or whether it was an independent decision that was taken and the instruction just fell in my lap.
MR KAHANOVITZ: Mr Basson comes to you and he says "Mr van Zyl, I want you to prepare a "voor-studie" for the elimination of Dullah Omar?
MR KAHANOVITZ: What else does he say to you, is that all he says to you?
MR VAN ZYL: That is all. Then I accept we have to investigate all the possibilities as to how the project would be brought to execution, and that is what we call the "pre-study", that is why in this regard I came down to the Cape and contacted Peaches in this regard, so that I could place a proposal in writing which I could send back to the Co-ordinator.
MR KAHANOVITZ: You mentioned that another name that was given to you of a prominent radical figure in the Western Cape, was that of Trevor Manual, correct?
MR KAHANOVITZ: So both those names would have been sent, escalated to your superiors?
MR VAN ZYL: With regard to Mr Trevor Manual I can recall that I did receive his name, but at that stage, weeks, a few weeks after I received his name, he was detained in terms of Security Legislation, and that is the only information which I sent back to them.
MR KAHANOVITZ: But I am assuming if you go and ask your informants in the Western Cape to give you the name of prominent radical figures, they are not just going to come back with one name?
MR VAN ZYL: This was the instance, or the information which I received from Peaches, only specifically dealt with Min Dullah Omar.
MR KAHANOVITZ: Isn't that very strange, because according to your statement, your instructions to them were "go and get me names of prominent radical figures", they just came back with one? Is that your evidence?
MR VAN ZYL: That is what happened.
CHAIRPERSON: Mr Kahanovitz, when you get to a convenient stage, I have been requested for a five minute adjournment.
MR KAHANOVITZ: I would strongly support that adjournment right now, thank you.
CHAIRPERSON: We will just take a very short, five minute adjournment.
CROSS-EXAMINATION BY MR KAHANOVITZ: (cont)
... the Omar incident, could you just look at page 117 of bundle A, paragraph 57 concerning a project to burn down a printing press.
"... I received information early in June 1989 that the printing press was doing printing work for amongst others the ANC, the UDF, COSATU and other limited organisations. The information was given to the CCB and a project was identified that the place would have to be burnt down. After an "in-house" with the Managing Director, the Regional Director informed me that the project was approved and the place would have to be burnt down. I gave Isgak instructions to execute the project. Later he reported to me that the place had been burnt out and he was compensated with R2 000-00. I also later heard that the printing press was never burnt out."
Do you confirm that statement, correct?
MR VAN ZYL: That is what you read and this is the incident that I referred to this morning Mr Chairperson, where the name was wrong. Isgak should actually be Peaches.
MR KAHANOVITZ: But Mr van Zyl, you have testified on the basis of this statement, on countless occasions, why is this the first time that you are drawing this to anyone's attention, that this is incorrect?
MR VAN ZYL: When I compared it with my Section 29 statement and I read it through, it came to my attention, and this is why I mentioned it to you this morning.
MR KAHANOVITZ: But surely you would have a clear recollection as to who cheated you of R2 000-00?
MR VAN ZYL: I know it was Peaches who was involved in this project, but Isgak or rather Gakkie, is mentioned here, it was not him.
MR KAHANOVITZ: You say that you
"... I received information ..."
who did you receive this information from?
MR KAHANOVITZ: Now, who owned this printing press?
MR VAN ZYL: I do not have a clue, Mr Chairperson.
MR KAHANOVITZ: What was the name of the printing press?
MR VAN ZYL: I do not know, I cannot remember.
MR KAHANOVITZ: But you made this statement ...
MR KAHANOVITZ: Yes, in 1990, within months, I think it was, just get the date of your statement, it was March 1990 and you were talking about events in June 1989. You wouldn't have had difficulty remembering?
MR VAN ZYL: Mr Chairperson, I can see that this specific project was very briefly touched upon because it was discovered afterwards that execution had never been given tot he project, because it seems as if the place never existed. That is why we briefly referred to it and not in detail as we did with the other projects.
MR KAHANOVITZ: But Mr van Zyl, surely it was purely a matter of luck that the project was never fulfilled, when one is dealing with your criminal intent, it was your intention that the printing press was going to get burnt down and you put plans into motion to achieve that objective, correct?
MR KAHANOVITZ: And you followed the ordinary procedures of the CCB in giving effect to that plan?
MR KAHANOVITZ: And you are telling us as you sit here today, that you've got no idea what the name of this printing press was?
MR VAN ZYL: I cannot remember it.
CHAIRPERSON: Sorry, did I hear you correctly, sorry Mr Kahanovitz, Mr van Zyl, did you say that that printing press may never have existed?
MR VAN ZYL: That is the feedback that I received, or the impression that I was brought under, that that site did not exist and that accordingly was never burnt down.
CHAIRPERSON: But if you were to make a "pre-study", you know you send the information through above and then it comes down "make a pre-study about the burning of this printing press", wouldn't, I would have thought that it would have been very basic for you yourself, the person in charge of the study, to go and physically take a look where this printing press was, it might have been on the 19th floor of the building in the centre of Johannesburg or it might have been in a little shack in the suburbs, information that would be hugely relevant as to the carrying out of an operation of that nature, just to see it, whether it is possible to burn it down or not? Didn't you do that?
MR VAN ZYL: I agree with what you are saying, but I didn't do it.
CHAIRPERSON: So the "pre-study" was then just information that you received from Peaches? Was Isgak, what is his name, was his involved at all?
MR VAN ZYL: No, it was Peaches, not Isgak.
CHAIRPERSON: But I mean was Isgak involved at all?
CHAIRPERSON: Not at any stage?
CHAIRPERSON: So you just relied on information received from Peaches and put that in your written submission?
CHAIRPERSON: Without even looking at the place?
MR LAX: Sorry, before you do, may I just follow up something. You say here that
"... I also heard later that the printing press was never burnt down?"
MR LAX: There is nothing there to say that it did not exist? You just simply say here that it was never burnt down, where does this additional information come from now, that it didn't ever exist, in addition to never having burnt out?
MR VAN ZYL: This was information that I gathered in time from Gakkie, that the place did not exist and accordingly nothing was burnt out.
MR LAX: So was this now Gakkie telling you that Peaches had in fact betrayed you?
MR LAX: If the place didn't ever exist, surely that would have been the reason you would have put there, not that it had never been burnt out?
MR VAN ZYL: It might be, if one looks at it technically, but these statements were made many years ago. It was made in co-operation with my legal representatives and one could possibly, from a legal technical point of view, prove other aspects incorrect if you really want to, but this is the way we put it at that stage, and my evidence I am giving you today, are the true facts.
MR LAX: You see, it is not about, with me it is not about legal technicalities at all, it is just about plain language.
If a place didn't exist, you would have simply said "it couldn't have been burnt down, because it didn't even exist." Inferring from the fact that it was never burnt down, is an implicit assumption in your mind, that it still existed, but it just wasn't burnt down?
MR VAN ZYL: The information that I had received from Gakkie at a later stage is that the place did not exist.
I do not know. I mean I have told you, I cannot qualify myself in any other way.
MR LAX: Fair enough. Thank you Mr Kahanovitz.
MR KAHANOVITZ: Mr van Zyl, this statement was drafted by Senior Counsel, correct?
MR KAHANOVITZ: I would venture to say it is probably the most important statement you ever were asked to put your signature to in your whole life?
MR KAHANOVITZ: When did you discover, first discover that you had been cheated of this R2 000-00?
MR VAN ZYL: Regarding this project?
MR VAN ZYL: It must have been in the region of about July or August 1989.
MR KAHANOVITZ: Now, was Joe Verster present at the "in-house" where the presentation was made about this project?
MR KAHANOVITZ: He makes no mention in his statement of ever having been present at an "in-house" where this project was discussed, can you comment?
MR VAN ZYL: I cannot comment on this.
MR KAHANOVITZ: Also to explain to the Commission the context in which this statement was made, certain documents were in fact obtained by the Harms Commission with figures on them, reflecting a budget, correct?
MR KAHANOVITZ: You were asked by the Harms Commission to explain the meaning of those figures?
MR KAHANOVITZ: Now, in explaining how money had been spent, let's assume for argument's sake that you have pocketed certain of those funds and that the projects that you are referring to, never existed, they were invented in order to obtain money from your superiors, you in fact kept money and you never gave it to Peaches or Ismail and when asked to explain where this money had gone to, you decided to blame what had happened, on theft by these gangsters, what do you have to say about that theory?
MR VAN ZYL: I think in practice, I do not know if such a theory is possible as a result of the systems applicable within the CCB, but in as far as it was applicable on my project, it was definitely not the case.
MR KAHANOVITZ: You see Mr van Zyl, what is worrying me is you have already testified that you are a fastidious person, a very proud person?
MR KAHANOVITZ: An efficient person, correct?
MR KAHANOVITZ: You would not likely, lightly accept being cheated by some "skollies" on the Cape Flats?
MR KAHANOVITZ: And Mr Verster would certainly not lightly accept being cheated in a similar fashion?
MR KAHANOVITZ: Now, this notwithstanding you take no steps whatsoever to try and recover the money from these alleged criminals?
MR KAHANOVITZ: Moreover you are working with a group of people, Peaches, Gakkie, Ismail, all friends, all closely connected, even after they cheat you, you carry on working with them, correct?
MR VAN ZYL: That is correct Mr Chairperson. I might just mention that Ismail's services were not used again after the bus incident. Peaches, I started suspecting Peaches and this is also why at a stage I involved Ferdi in the monitoring project of Dullah Omar. So I could have done a lot more probably in hindsight, but I didn't.
MR KAHANOVITZ: Did you go and tell Mr Staal Burger at the time "Mr Burger, I am sorry to say we have been cheated, the money has been lost, what do you as my immediate superior want me to do about this"?
MR VAN ZYL: I cannot remember it, I possibly did it. Maybe I didn't.
MR KAHANOVITZ: No, I would like you to think carefully about that, because I think Mr Burger is going to say that the first time that he heard about these things, was at the Harms Commission.
MR VAN ZYL: That he heard about what?
MR KAHANOVITZ: About these projects that Mr van Zyl had been involved in where the money had been stolen from the CCB.
MR VAN ZYL: No, I would deny it if he made such a statement. As Regional Manager, he was part of the first "in-house" process, so he cannot deny it.
MR KAHANOVITZ: But one thing that has been emphasised throughout was that "we were very, very careful with our money, there were budgets for everything, everything got audited, no funny business".
MR KAHANOVITZ: How is it possible then in that context that you could be in any doubt whatsoever about having gone to report to your superiors about money that had been spent in return for nothing?
MR VAN ZYL: As I said, I possibly mentioned it to him, maybe I didn't. I really cannot remember.
CHAIRPERSON: Did you report back to your superiors that fact that neither the bus, nor the printing press were burnt as ordered?
MR VAN ZYL: No Mr Chairperson, indeed I reported back to them in writing that the bus had been burnt out, and that the printing press had been burnt down, because that was the initial information that I had received from the operators who were involved with this.
CHAIRPERSON: But when you received the information that you had been hoodwinked, did you report that fact to your superiors?
MR VAN ZYL: I cannot remember that, I possibly did it. Maybe I forgot to do it.
MR LAX: Sorry, just one small thing. Why did you carry on working with Peaches? You have told us you did not carry on working with Ismail when you realised he cheated you, why did you carry on working with Peaches, even though you realised he cheated you?
MR VAN ZYL: Peaches was at that stage involved with the project of Min Omar, and that was a big project, so I did not have much choice. Although I did have my doubts about him, I could not, I could possibly have done it, but I did not end his mandate at that point, as an operative.
MR LAX: Then just one last thing, just to follow up on the Chairperson's question to you. Is it possible that you did not report this failures because you didn't want to be seen in a bad light?
MR VAN ZYL: Yes, it probably is possible, but I don't want to prejudice myself, but it is possible. I don't know if I reported it or not. It might be possible.
CHAIRPERSON: But it is the sort of thing that you should have reported? I mean now, as you sit here now and think about it?
MR VAN ZYL: I should have done it, yes.
MR LAX: And failure is something one tends to remember?
MR VAN ZYL: No, I think failure might just be something that you would like to forget.
MR LAX: Yes, that is precisely why you do remember it?
MR KAHANOVITZ: Now, Peaches who you now say was responsible for stealing this R2 000-00, Peaches is now deceased, is that correct?
MR KAHANOVITZ: And dead men don't give evidence?
MR KAHANOVITZ: Just in general terms, I want to ask you something about Gen Webb's evidence, you have heard his version will be that he authorised the Early Learning Centre project and...
MR MARTINI: Sorry Mr Commissioner, I think this is an unfair question, Mr Kahanovitz says his evidence will be, how do we know that will be his evidence? After all, there is a statement before the Commission, but the Commission is calling for hearings?
CHAIRPERSON: Okay, maybe you can change your wording, it has been suggested or, it is anticipated.
MR KAHANOVITZ: Mr van Zyl, you recall that Gen Webb's representative put certain questions to Col Verster regarding the authorisation of certain projects and at the time he said that his client will say certain things?
MR KAHANOVITZ: And what was put was that Gen Webb denies that he authorised the Omar and Evans projects, on the other hand, he admits that he authorised the Early Learning Centre project and the project "apie". Now, would you be prepared to comment on why Gen Webb is putting forward this version, do you understand his version, because as I understand your evidence, your evidence is that the Chairman authorised Omar and Evans?
But you are now in a difficult decision, because the Chairman says you are not telling the truth?
MR VAN ZYL: No, what I can say is that I submitted by project up to the first "in-house" level and that I then accept that Verster would submit the project further to the Chairperson, Gen Webb, and if Gen Webb is saying this and that he did not authorise it, then I cannot comment on it, I was not part of these processes, I cannot take it further than the first "in-house".
MR KAHANOVITZ: What Gen Webb's version would amount to is you say Omar and Evans are authorised CCB projects, Gen Webb, who was in charge of the CCB says that is not so. Your, in military language, Commanding Officer is saying that your version, that you were engaged in official business in an authorised project, he is saying you are lying.
MR VAN ZYL: No, I don't think this is what is said Mr Chairperson, because I mean, I also do not mean what Gen Webb will testify regarding these projects, but what I can tell you is that I accepted my Co-ordinator, and I can accept that my Regional Manager, as was the case with the Managing Director, that their knowledge regarding these project, that they would give their knowledge regarding these projects to the Commission and that they would testify on exactly the same basis I am testifying on it.
The reasons why Gen Webb will say that he does not know about it, I do not know. I was not part of this process.
MR KAHANOVITZ: What Gen Webb told the Harms Commission is that as the general rule, the CCB did not engage in offensive activities against the enemies of South Africa internally.
MR VAN ZYL: Yes Mr Chairperson, I know this is the case, but I stand under correction, but I myself think that Gen Webb had changed the statement because as a result thereof, you must remember at that time with the Harms Commission, it was relied on the right of privilege and as a result thereof, many things had not been said and as a result thereof, lies were also told.
But if Gen Webb comes here today and says that we as Region 6 internally did not act offensively against the enemies of the State and this did not include the killing of people from time to time, then he would be lying.
MR KAHANOVITZ: Do you have any idea why, given that Gen Webb's version has been that offensive activities against the enemy such as murder, sabotage and so on, were not permissible in South Africa, why he is now saying though that the Early Learning Centre was an authorised project?
MR VAN ZYL: I cannot comment on this.
MR KAHANOVITZ: The Afrikaans word "geleentheidsteiken", was that a word that you used in the CCB?
MR KAHANOVITZ: What does it mean?
MR VAN ZYL: As I understood it, it was terms that were used where a person was identified as a target for the organisation and you per chance found yourself in an environment where you could disrupt that person, whatever that disruption would involve, and you could continue with that disruptive action.
MR KAHANOVITZ: All right. Okay, to move on to the Omar incident. Let's deal with the statement at page 98 of bundle A, paragraph 39.
You say in the first sentence that at some stage you received an order from Staal Burger that Peaches must be asked to collect information about prominent radical figures in the Western Cape, correct?
MR VAN ZYL: No, what I am saying there Mr Chairperson, is that I had received an instruction from Staal that I would have to gather information relating to radical people in the Western Cape, but I then approached Peaches.
It was not a specific instruction to me to go to Peaches and say to him "please bring me the information".
MR KAHANOVITZ: Did you ask Peaches at that stage to go and monitor Dullah Omar?
MR KAHANOVITZ: Sorry Mr Chairman, I just need one minute. Could you look at the application of Wouter Basson, page 49, paragraph 4.3, bundle A?
Just read what Mr Basson has to say under the heading "The Dullah Omar Incident", the first to paragraphs.
"... Mr Dullah Omar, an Advocate related to the Cape Bar was also identified as a radical political activist. He was a managing member of the UDF who according to information that was in our possession, was a front organisation for the ANC and for this reason, a decision was made to monitor him, in order to determine whether he was involved with undermining activities against the interests of the State. The instruction to monitor him, was given to the aforementioned Abram van Zyl. He initially executed the instruction with the help of two coloured gang members in Cape Town."
MR KAHANOVITZ: You see what Mr Basson is saying is that the process was that, not that you must go and look for prominent radical figures, you were given Mr Omar's name and you must go and monitor if he is involved in undermining activities which threaten the interests of the State. That is the instruction that you received and that you executed that instruction with the use of two coloured gang members.
MR VAN ZYL: Yes, I am convinced that Mr Basson will give you the true version, this is not correct.
CHAIRPERSON: Are you saying that the statement that you have read out, is not correct?
MR VAN ZYL: That is correct, Mr Chairperson.
MR KAHANOVITZ: When you say that you are convinced that he is going to come and tell the truth, are you saying that you have knowledge that he is going to come and give evidence where he is going to say that that portion of his statement is untrue?
MR VAN ZYL: Naturally long after this statement had been made by Mr Basson, I was part of a process when we were handing in our amnesty applications, and what his exact evidence will be, I will not be able to tell you. But I am aware of the fact that he supports me in my application regarding the Early Learning Centre, the Dullah Omar incident and all the other incidents.
MR KAHANOVITZ: What you are really saying is that the time that you handed in your amnesty applications, you tried to reconcile all of your versions?
MR VAN ZYL: No, what I am saying is that at that stage myself, Burger, Maree, Botha and Basson used the same legal representative and it is in this process that I had become aware of the fact that my application as it is written today, is supported by all the parties that I have just mentioned.
MR KAHANOVITZ: What do you mean by "was supported by", it is supported by?
MR VAN ZYL: It is reasonably simple, where in the past it had been denied, where in 1990 when I testified before the Harms Commission, where I was pushed to one side and I was told that I had done things on my own and this was not the case, etc, in time those same people had realised that there is only one truth and this is the truth that I had told, and this is why I am supported in relation to my application.
MR KAHANOVITZ: Did Mr Basson ever deny that Region 6 was involved in the activities that you said that Region 6 was involved in?
MR VAN ZYL: I think what I am saying here is that in terms of the first paragraph, it is clear that he said that only a monitoring process would be applied to Omar, which was not the case.
MR KAHANOVITZ: No, no, Mr van Zyl, you misunderstand what he is saying. He is not saying that there was only a monitoring project. Where you and he differ is on how the process was initiated.
In other words, he says the name Omar was given to you so that you could go and obtain information as to whether Dullah Omar was indeed involved in activities that were undermining the interests of the State.
MR VAN ZYL: No, I see further in the next paragraph, I will just quote
"... the decision was made that mentioned Omar would have to be eliminated."
I misunderstood it. What I do say is that I did not receive instructions from him, I deny that, to gather further information relating to Omar. The initial information that I had received concerning Omar and that had been channelled through regarding Omar, that was it, as far as my information was concerned. A further instruction was to do a preliminary study so that he can be eliminated. I deny this paragraph 2.
MR KAHANOVITZ: Who was the conduit for your instructions at that stage?
MR VAN ZYL: I beg your pardon?
MR KAHANOVITZ: Who was the, when you were preparing for, in the preparatory phases, wouldn't your instructions come from Mr Basson?
MR KAHANOVITZ: So why should he get it wrong?
MR VAN ZYL: I do not know, you would have to ask him.
MR KAHANOVITZ: When was Omar registered as an official project?
CHAIRPERSON: Sorry, Mr Kahanovitz, is that after the first "in-house" or second ...
MR KAHANOVITZ: I think maybe we should ask the witness to answer that.
MR VAN ZYL: I think it would be in the region of end June, beginning of July, if I remember correctly.
MR KAHANOVITZ: What do you understand by, and I will use the language that you normally use in Afrikaans was "registered as a project", what do those words mean?
MR VAN ZYL: If I refer to a registered project here, what I mean by it is that it was approved by the Chairperson, and then I received an instruction from my Regional Manager to budget for it financially and to execute the project.
MR KAHANOVITZ: You have just said you think that was in June?
MR VAN ZYL: I think it was at the end of June, beginning of July.
MR KAHANOVITZ: Why would you pick that time?
MR VAN ZYL: No, it was quite a while before that, I think it was in April.
MR KAHANOVITZ: Why April or June?
MR VAN ZYL: Because that was the time, could I have a look at my statement and then I will give you the date. You have read it and you know what the date is. The reason why I thought it was July was because I sent Ferdi down and I sent him down in August and in September and then it would be April.
MR KAHANOVITZ: Would that be then at the time, roundabout the time when the first "in-house" would have taken place, in April 1989?
MR KAHANOVITZ: All right. Who was present at that "in-house"?
MR VAN ZYL: Myself, the Regional Manager, the Managing Director.
MR KAHANOVITZ: Burger, Basson, Verster and van Zyl? Okay. You had made a written "voor-studie" in this case. I assume if a simple matter such as the printing press is about a page or two pages, how long was this "voor-studie"?
MR VAN ZYL: I cannot remember.
MR KAHANOVITZ: No idea, all right? The meeting, the first "in-house", about how long did it go on for?
MR VAN ZYL: I cannot remember that either. It was probably approximately an hour, it could be longer.
MR KAHANOVITZ: What was discussed?
MR VAN ZYL: My proposal about how the project would have to be executed.
MR VAN ZYL: That Peaches would obtain two people to help him and that Mr Omar would then be shot at his house.
MR KAHANOVITZ: Was there any discussion about whether, given that you had hired Peaches in the first instance because you thought he would be a suitable assassin, why were you now going to bring two other unknown people who would receive instructions from Peaches, why involve these two additional people in the project, why not ask Peaches to shoot Omar?
MR VAN ZYL: It would lead to further cut-off points, in other words if they were to be arrested, then I would be one step further away from being identified.
MR KAHANOVITZ: In the plan that you presented, did you know who these people were?
MR KAHANOVITZ: So you had no idea whether they were going to be good or bad at the job, you just relied on whoever Peaches hired?
MR VAN ZYL: That is the way we worked.
MR KAHANOVITZ: Now, what was the budget for the whole project?
MR VAN ZYL: I think it was R15 000-00. Wasn't it R15 000-00, it is written in my statement?
MR KAHANOVITZ: R15 000-00 is the figure that you mentioned that was going to be paid to Peaches?
MR KAHANOVITZ: That couldn't have been the budget for the entire project, that is just his payment?
MR VAN ZYL: That is correct, yes.
MR KAHANOVITZ: Do you recall what the budget was for the whole project?
MR VAN ZYL: No, I mean naturally it did provide for plane tickets but what exactly it was, I cannot remember.
CHAIRPERSON: And also for the two assistants of Peaches, would they be paid?
MR VAN ZYL: They would have been paid from this.
MR KAHANOVITZ: What were they going to receive?
MR VAN ZYL: I think they would each have received R5 000-00.
CHAIRPERSON: So that R15 000-00 was a three way split, R5 000-00 for Peaches and his two associates?
MR KAHANOVITZ: Why did you need to give these gangsters a gun? I mean, I am assuming these are the kinds of people who had their own guns?
MR VAN ZYL: That is correct, but it was a request when I did the preliminary study with Peaches, we discussed the matter, and it was requested that we provide them with a weapon with a silencer. We then further thought that we would use a Russian made weapon, so that it could then not lead to Police or Army activities, so that it could lead away from the State in other words.
MR KAHANOVITZ: Just run me through that, someone gets arrested, they find a Makarov with a silencer in their possession, and then what? They would think it is not the State?
MR KAHANOVITZ: Were Makarov pistols generally available on the market in South Africa at that stage?
MR VAN ZYL: No, there were ones available, but maybe not as freely as today.
MR KAHANOVITZ: Yes, all right. What then happens, I assume is that at the end of this "eerste in-huis", Mr Burger and Verster approved this plan to use these two gangsters to shoot Mr Omar with the pistol with the silencer?
MR KAHANOVITZ: Now, was there any debate at the meeting as to whether he should be shot or maybe some other method, you put a car-bomb, poison him, so on and so forth?
MR VAN ZYL: No, the only thing that I can recall was that there was a debate with regard to where exactly Min Omar should be shot. Would it have been in his yard or on his way to his home, I can recall that.
MR KAHANOVITZ: All right, and what was the recommendation made to you by your superior?
MR VAN ZYL: There was a decision that Mr Omar would be shot when he arrived at his home and when he parked his vehicle in his garage.
MR KAHANOVITZ: Why was that choice made?
MR VAN ZYL: It seemed at that stage, to be the best plan ...(transcriber's interpretation)
MR KAHANOVITZ: But why did it seem to be the best plan?
MR VAN ZYL: I don't know, that was the decision. I cannot tell you now. We evaluated the situation and it was a recommendation from my side that I thought this was the best plan. I cannot explain it else.
MR KAHANOVITZ: I assume that you are the man on the ground, you have scouted out the possible locations and the possible methods and you have made a recommendation in your written submission, I assume, that Min Omar should be shot outside his house with a Makarov pistol with a silencer?
CHAIRPERSON: Just on that, Mr Kahanovitz, sorry to interrupt you. Did you in fact scout out the situation, did you in fact go to Mr Omar's house and look at it, see where the garage is and where the gates are and the driveway, that sort of thing?
MR VAN ZYL: No Chairperson, once again this was done, we depended on the information that Peaches gave to me.
MR KAHANOVITZ: You see Mr van Zyl, what I do not understand about that answer is that for instance when Mr Verster is cross-examined about "did you rely exclusively on the information that you received from these gangsters about whether so and so was a suitable target", it is said there is a process of verification, "of course we would never just rely on what these people told us", do you remember the evidence?
MR KAHANOVITZ: But when it comes to something related to "is this the right place to shoot someone, is this a good spot", then it is not necessary to go and check?
MR VAN ZYL: That is how the system operated, that is how I handled it. Other persons would have dealt with it differently, probably.
MR KAHANOVITZ: So in the case of the Early Learning Centre, was the first time that you ever saw the place, the night that you arrived there with a limpet mine?
MR MARTINI: Excuse me, Mr Chairman, may I just come in at this stage. What Mr Kahanovitz put to the witness regarding what Mr Verster said, was said in a different context. What Verster said was that the information would be verified regarding the identity of the person, but not the actual location or how the project was going to be executed. That wasn't, as far as my recollection goes, the verification that was spoken about by Verster.
MR KAHANOVITZ: I don't think I differ from my learned friend, that is the question that I put.
Now, all right, the project gets approval or preliminary approval at the first "in-house", subsequent to that somebody comes to tell you that it has been to the second "in-house" and it has been approved?
MR VAN ZYL: That is so and Staal, my Managing Director, gave me those instructions, I beg your pardon, the Regional Manager.
MR KAHANOVITZ: Sorry, who told you this?
MR VAN ZYL: Staal Burger, the Regional Manager.
MR KAHANOVITZ: All right, so we assume or let's not assume, what did he tell you, did he tell you that the Chairman had been spoken to and the Chairman had approved the project?
MR VAN ZYL: He told me the project had been approved and I accepted it. I accepted that he had spoken to the Chairperson.
MR KAHANOVITZ: What was the time delay between the end of the first "in-house" and being told that the project has now been approved, finally approved?
MR VAN ZYL: That is difficult to say, but I would estimate it was in the vicinity of a week to two weeks.
MR KAHANOVITZ: You say that was the ordinary case and to the best of your recollection, that would be about the same time period that would have applied here?
CHAIRPERSON: When it is a convenient time, Mr Kahanovitz, we will take the lunch adjournment.
MR KAHANOVITZ: Thank you Mr Chairman.
CHAIRPERSON: Thank you, we will take the lunch adjournment now, until quarter to two. Thank you.
CHAIRPERSON: We apologise for the late start, but we had a discussion. Mr Kahanovitz?
CROSS-EXAMINATION BY MR KAHANOVITZ: (cont)
Mr van Zyl, please go through page 101 of bundle A, paragraph 40 and if you could just read paragraph 40 into the record.
"...In Johannesburg I verbally conveyed the progress of the project to the Regional Manager. I was informed by Peaches three days afterwards, after he paged me, that he had obtained two persons to do the work and that R2 500-00 would be paid out to these persons. The Regional Manager gave me instructions to hand in an application for R15 000-00. I had handed this in with the Co-ordinator shortly afterwards. The amount was received in cash from the Co-ordinator and I paid it into a banking account of Peaches in Johannesburg, R5 000-00. The R10 000-00 that was left over, I left in the safe in my house. Peaches would contact me by means of a page, the message "the sun will shine" if the project had been executed. The project went slowly for four or five months and Peaches did not make any progress with the report. Upon this, I asked Ferdi Barnard during July/August/September of 1989 to monitor Omar. I want to add ..."
MR KAHANOVITZ: You are starting to ...
CHAIRPERSON: Sorry Mr Kahanovitz, he was just completing the translation.
INTERPRETER: I just wish to add that my mistrust with regard to Peaches was taken up with the Regional Manager on more than one occasion.
MR KAHANOVITZ: Thank you. Mr van Zyl, you are starting at this stage, to loose your trust in Peaches, correct?
MR KAHANOVITZ: Is this because of amongst other things the microbus that was supposed to be burnt, but was never burnt, was that a factor?
MR KAHANOVITZ: And the other factor is that he was taking four to five months and nothing has really happened?
MR KAHANOVITZ: Now, if you could look at bundle B, page 129 which is a sworn statement of Ferdi Barnard you will see that in the middle of the page, he is talking about a certain Louis, and just to place this in context, Louis was the alias used by Lafras Luitingh, correct?
MR KAHANOVITZ: Have you read the statement?
MR KAHANOVITZ: Are you aware that Lafras Luitingh was Mr Barnard's handler?
MR KAHANOVITZ: Well, you can take it from me that the Louis here is a reference to Mr Luitingh.
CHAIRPERSON: Sorry how would you spell that name?
MR KAHANOVITZ: Lafras Luitingh.
MR KAHANOVITZ: Now, Mr Barnard is here explaining how he became involved in the Omar matter and this statement is dated the 22nd of November 1989. He says that - maybe if you can just - I will read it into the record.
"... In the beginning of May 1989 I received an instruction in the post box, along with R4 000-00. I had to fly to Cape Town in order to gather information with regard to Adv Dullah Omar."
Now, there are two inconsistencies here with what you have to say. Firstly, Mr Barnard is saying in this statement, I am aware he has other statements in which he says other things, in this statement he is saying that the instruction to monitor Omar didn't come from you, but came from Louis, otherwise known as Lafras Luitingh. What do you have to say about that?
MR VAN ZYL: I cannot dispute that, I do not know whether that was the case.
MR KAHANOVITZ: No, but why can't you comment on that, because surely at the time that you ask Mr Barnard to monitor Mr Omar, which on your version is in June 1989, Mr Barnard if he had already been monitoring Omar, on the instructions of Louis, is going to say to you "but Mr van Zyl, I am already working on Omar through somebody else in the organisation"? So you would obviously know something about it, if it was true?
MR VAN ZYL: If that is true, I should not know about it. That is the interpretation of Mr Barnard in his statement and I can tell you that I met Ferdi, I only gave him instruction which he received in a post box with money, and if he received instructions from Lafras Luitingh, also to work on Mr Dullah Omar, then I do not have any knowledge of it, he never mentioned it to me.
CHAIRPERSON: If one takes this statement that has just been read out by Mr Kahanovitz, your discussion with Mr Barnard would have been what, about September or so?
MR VAN ZYL: It was in the beginning or towards the end of June, because June 1989 he went to Cape Town for the first time.
CHAIRPERSON: Sorry, I must have made a mistake, because I thought that the approval for the operation came roundabout April and then Peaches took four or five months without any report back, you'd got the money, you put the R10 000-00 in your safe and then there was, I think, didn't you say there was a period of four or five months and then you started getting worried about Peaches and then you approached Mr Barnard?
CHAIRPERSON: So that would take it from April, five months would be at least September?
MR VAN ZYL: That is so Mr Chairperson. Factually how it happened was that Ferdi for the first time, in July went to Cape Town, although the project was approved in April and thereafter he went in August and once again in September, so in other words from April to July when I sent him down for the first time, May, June, July, is three months approximately.
CHAIRPERSON: Thank you Mr Kahanovitz.
MR KAHANOVITZ: Mr van Zyl, who is the first person who was connected with Region 6, that the Police started looking for, do you remember?
MR VAN ZYL: Yes, the first person of Region 6, I do not regard Mr Barnard as an aware member of Region 6.
MR KAHANOVITZ: Let me ask, let me cut this short, do you know who Commissioner Jumbo Smit is from the Namibian Police?
MR KAHANOVITZ: Are you aware of the fact that he arrested Donald Aitcheson in Windhoek?
MR KAHANOVITZ: You are aware that Mr Aitcheson gave him certain information about South Africans who he had been in contact with?
MR VAN ZYL: I am not aware of the information that was given.
MR KAHANOVITZ: I am going to tell you what Jumbo Smit said, was that he was given, Aitcheson was given the name of a person with a pager, that he had to make contact with from time to time and the name turned out to be a false name, however, on further investigation it turned out that the payments for that pager, were being made from Mr Barnard's account, which is why, how Jumbo Smit traced Ferdi Barnard in the first instance, are you aware of that?
MR KAHANOVITZ: Now, of the people who are sitting here today, who, isn't it so that Mr Barnard was the first person that the Police, and here I am talking about the Namibian Police and the South African Police, started looking for?
MR VAN ZYL: He was the first person who was arrested.
MR KAHANOVITZ: You are aware no doubt then that Mr Barnard made a statement in which he tried to protect certain members of Region 6?
MR KAHANOVITZ: Mr van Zyl, not may be, because you would no doubt be aware that in that statement, Mr Barnard tried to blame certain things that you had done, on this so-called Louis, in order to protect you? Do you recall that?
MR VAN ZYL: Chairperson, up to today, I have not read the statement of Ferdi, I did not regard it as important. What he did in his Section 29 statement, I do not regard it as important.
MR KAHANOVITZ: How could you possibly not regard it as important, it was through Mr Barnard's arrest and his involvement with you, that you came to find yourself in detention eventually?
MR VAN ZYL: Barnard was arrested and he actually implicated Calla Botha and Calla Botha actually implicated me.
MR KAHANOVITZ: But Mr Barnard could most certainly have implicated you? Could, correct?
MR KAHANOVITZ: He knew an awful lot about you, correct?
MR KAHANOVITZ: The fact of the matter is, now you read it, he did not implicate you in the first instance, correct?
MR VAN ZYL: Where did he not implicate me?
MR KAHANOVITZ: The reason he did not implicate you is because he supplied the Police with false information, blaming things that you had done, on somebody else.
MR VAN ZYL: Then you have to point this out to me. If you are insinuating that he tried to protect me by saying that Lafras Luitingh gave him money in a post box and so forth, I don't know, maybe he did receive an instruction, maybe he lied to me, I would not know, I think you should put that question to him.
MR KAHANOVITZ: The gist of what Mr Barnard says about the Omar incident is that the project was being run by the so-called Louis, not by you?
MR VAN ZYL: I don't know, I cannot comment on that.
MR KAHANOVITZ: So you never had any discussions with Mr Barnard after he came out of Section 29 detention, to say "hallo Mr Barnard, what did you tell the Police, I need to know, I need to know whether I've got to be worried"?
MR VAN ZYL: When I was detained in terms of Section 29, Ferdi Barnard was still in detention, and then he came out and I came out and I think the first time I saw him, the first time, I don't think I saw him at the Harms Commission, I did not contact him or go to him, I did not deem it necessary.
Honestly, I did not need it because I was speaking the truth, that is why. And I think the first time that I saw Ferdi was with the Webster post-mortem inquest that was held.
MR KAHANOVITZ: What made you think that Mr Barnard hadn't implicated you? You gave evidence five minutes ago, saying that?
MR VAN ZYL: I did not say that I thought that Barnard did not implicate me. I know that he made certain statements and I know that Ferdi was involved in the monitoring of the Omar project, so he must have implicated me in that regard. I did not tell you that he did not implicate me.
MR KAHANOVITZ: What was Lafras Luitingh's job in the CCB?
MR VAN ZYL: I do not know. I do not know him, so I do not know.
MR KAHANOVITZ: Even as you sit here now, you cannot tell me?
MR VAN ZYL: No. I am not interested in him.
MR KAHANOVITZ: I am not asking you if you are interested in him, I am asking you whether someone higher up in the hierarchy of the CCB than you, you bothered till today to find out what his function was?
MR KAHANOVITZ: So you still, you are saying that if Ferdi Barnard says that he was tasked to come to Cape Town in May 1989 by someone code-named Louis, you cannot say whether that information is true or false?
MR KAHANOVITZ: Let's go back to your version. When you called on Mr Barnard, what did he have to offer, why were you going to rely on Mr Barnard to come down to Cape Town, what special skills and qualities did he have?
MR VAN ZYL: Ferdi at that stage, as I have said in my statement when I met him, that was approximately February of that same year, he mentioned to me that from an intelligence side, he could play an important role to me, so it was about the information aspects.
MR KAHANOVITZ: Are you saying that it was his quality of a gatherer of intelligence that you were interested in?
MR VAN ZYL: At that stage, yes.
MR KAHANOVITZ: And the fact that he was a convicted murderer was besides the point?
MR KAHANOVITZ: Now, was his job to monitor Peaches or monitor Omar or both?
MR VAN ZYL: I think it was a combination of the two. The first would have been primary, in order to see that the information that I received from Peaches, was indeed the true version, and in order to enable him to do that, he had to monitor the movements of Omar.
MR KAHANOVITZ: Now, what is Peaches telling you about the problems, what the problem is, the reason behind the delay?
MR VAN ZYL: Firstly it was mentioned that Min Omar on various occasions would arrive at his home and he would be accompanied in most cases, by persons who were with him in the vehicle and that circumstances did not allow the project to be executed.
MR KAHANOVITZ: Now you are wanting to send Mr Barnard to see if this was in fact so?
MR KAHANOVITZ: So in other words, Mr Barnard would have to spend out some time, outside of the Omar's house?
MR KAHANOVITZ: But, isn't it so that it would make no sense to use Mr Barnard for that purpose, because Mr Barnard was a white person, sitting in a car in Athlone outside the Omar's house is going to stick out like a sore thumb?
MR VAN ZYL: I do not agree, and this made sense to me.
MR KAHANOVITZ: All right. So the statement which I am making that it doesn't make sense to use Mr Barnard in those circumstances, is an untrue statement?
MR KAHANOVITZ: Can I refer you to bundle G, I think the new bundle that we have received.
MR MARTINI: Sorry Mr Commissioner, just for the record, this bundle was given to us this morning in two pieces, none of us have had an opportunity of considering it.
CHAIRPERSON: Yes, thank you Mr Martini. Just let me get hold of it, Mr Kahanovitz.
MR KAHANOVITZ: Mr Chairman, this bundle, it is not paginated like the other bundles, but what you have is the first portion contains part of the record in the matter of S v Barnard where Mr Barnard was prosecuted with amongst other things, the attempted murder of Dullah Omar.
The second portion of this bundle contains, I don't know if it is the full ...
MR KAHANOVITZ: I am going to refer to the, as far as the evidence is concerned, I will use the original pagination from the court record.
Mr van Zyl, you can confirm that you indeed gave evidence as a witness in the trial of S v Barnard?
MR KAHANOVITZ: And you were offered an indemnity in return for your evidence?
MR KAHANOVITZ: Could you turn to page 1884 of your evidence.
MR VAN ZYL: I haven't got 1000 pages here.
CHAIRPERSON: It is bundle G, the typed page.
MR MARTINI: Mr Chairperson, ours is numbered 179, the front portion?
MS COLERIDGE: Look at the index.
CHAIRPERSON: 1884. Have you got it?
MR KAHANOVITZ: Mr van Zyl, at this stage you are being asked evidence by Adv Ackerman who was leading you on behalf of the State?
MR KAHANOVITZ: ... from line 18 on page 1884. Sorry, this is cross-examination by Mr Coetzee, on behalf of Mr Barnard. Can you just read into the record what Mr Coetzee puts to you and what your answers are, "my instruction"?
"... My instruction furthermore from the accused was that the problem that he experienced with the monitoring of Adv Omar, which he also gave to you was that in the area where Mr Omar lived, he as a white person would stand out, that people came to have a look to see what he was doing and that was one of the reasons why he could not monitor the house of Adv Omar, successfully. That is so."
MR KAHANOVITZ: The next important thing that happens is that David Webster is assassinated on the 1st of May 1989? Sorry, you say, this is before Mr Barnard is sent down, David Webster is assassinated, correct?
MR VAN ZYL: That is so, correct.
MR KAHANOVITZ: Didn't Mr Barnard tell you that he shot David Webster?
MR KAHANOVITZ: You see, I want to put it to you that everyone in Region 6, knew that Mr Barnard had shot David Webster, I am going to tell you why.
On the day after Mr Webster was shot, Mr Barnard went to tell his then handler, Lafras Luitingh, that he had shot Webster and that Calla Botha was driving the car, are you aware of that?
MR KAHANOVITZ: Mr Luitingh went to report this to Joe Verster.
MR VAN ZYL: I do not know of that.
MR KAHANOVITZ: Emergency meetings were held because the hierarchy in the CCB was attempting to discover what had happened and why it had happened. Do you recall you were called to emergency meetings because your superiors in the CCB were concerned about the assassination of David Webster?
MR VAN ZYL: I did not attend any emergency meetings. With the course of time, there were some enquiries by Joe Verster as well as Staal as to who was possibly responsible for it, but that was pure speculation, but I did not receive any call to attend any emergency meeting, where it was discussed.
MR KAHANOVITZ: You see the information that Joe Verster received from Lafras Luitingh was that a member or a person associated with Region 6, in the form of Mr Barnard and Mr Botha, were involved in the Webster assassination, strike you as the kind of thing, assuming it wasn't an authorised project, strikes you as the kind of thing that Mr Verster would be rather concerned about?
MR VAN ZYL: I cannot comment about that.
MR MARTINI: Sorry Mr Commissioner, I thought that the exception, you had ruled that we would be confining ourselves to the issues relating to amnesty. I don't want to object all the time, and I have given a lot of leeway, but we are hearing questioning now on Webster, Webster, Lubowski and I thought the issues are confined to the acts of amnesty?
MR KAHANOVITZ: Mr Chairman, this is, it will emerge from the cross-examination, these questions I am asking, are directly related to certain submissions I am going to put to the witness later about the Omar matter and the use of Mr Barnard in that project.
CHAIRPERSON: You may continue Mr Kahanovitz.
MR KAHANOVITZ: Mr Barnard's representative can correct me if I get this wrong, but according to the evidence that was led at the criminal trial, there was certainly, I think it was 12, there were certainly more than 10 people that gave evidence there concerning Mr Barnard coming to tell them that he had shot David Webster?
MR VAN ZYL: That may be so, I cannot dispute it.
MR KAHANOVITZ: Why would Mr Barnard tell all these other people but not you?
MR VAN ZYL: Probably because I did not have any contact with him.
MR VAN ZYL: Probably because I did not have any contact with him.
MR KAHANOVITZ: That can hardly be so, Mr van Zyl? Do you accept, you are now aware that Mr Barnard has been found guilty of the murder of David Webster?
MR KAHANOVITZ: Do you accept the finding of that Court?
MR KAHANOVITZ: So we can start off from the assumption that Ferdi Barnard murdered David Webster on the 1st of May 1989, correct?
MR KAHANOVITZ: Approximately a month later, you decide to hire Mr Barnard to send him to Cape Town, to get involved in the Omar project?
MR KAHANOVITZ: At this stage, are you willing to concede that you at least had heard the rumour that Mr Barnard killed David Webster?
MR VAN ZYL: I have to deny that.
MR KAHANOVITZ: You hadn't even heard a rumour?
MR KAHANOVITZ: How might it be possible that, and this is on the version of your superiors in the CCB, what they say is that after Mr Luitingh reported this to Mr Verster, an investigation was launched to ascertain whether what had been said, had been true and what steps should be taken. Nobody came to you and said to you "Barnard has told Luitingh that he has killed Webster, what do you Mr van Zyl, have to say about this"?
MR KAHANOVITZ: I am going to put it to you, I am going to argue at the end of these proceedings, that you and the other members of the CCB who are applying for amnesty here, knew full well by the latest on the day after David Webster was assassinated, that in the first instance, Mr Barnard had shot David Webster?
MR VAN ZYL: I deny that vehemently.
MR KAHANOVITZ: We are also going to argue that this was something that you were fully aware of at the time that you decided to involve Mr Barnard in the Omar project.
MR KAHANOVITZ: We are also going to argue that you most certainly did not hire Mr Barnard because of his intelligence capabilities, but because in your view, he would be better suited as an accomplished murderer, to assassinating Adv Omar than Peaches had been up to that stage?
MR KAHANOVITZ: Now, you will be aware that Mr Barnard in his criminal case, was not merely charged with being party to a conspiracy to murder Adv Omar, but he was charged with the attempted murder of Adv Omar, correct?
MR KAHANOVITZ: Now, if we can go to the judgement of Judge Els at, let's first look at page 85 of that judgement.
CHAIRPERSON: In the same volume, but towards, no, about in the middle of bundle G.
MR KAHANOVITZ: Now, in the middle of page 85 the Judge is dealing with the evidence of certain Brenda Milne. I think that is one of Mr Barnard's ex-girlfriends, is that right?
MR KAHANOVITZ: He says as follows
"... Brenda Milne testified that the accused had a list in his possession of persons who had to be eliminated. Dullah Omar's name appeared on one of these lists. On occasion, when the accused was in the Cape, busy with the monitoring of Omar, he contacted her and supplied a Cape Town telephone number to her which she had to call. She had to, using a fictitious name, arrange an appointment to speak to Dullah Omar. She had to determine in this manner where Omar was and what his movements were. After he had on occasion returned from Cape Town, the accused informed her that he waited in the garage next to the vehicle of Dullah Omar, for him to come out and he wanted to shoot him then. He said that he had a weapon with a silencer with him and the accused said that he aborted the plan, because a woman, something that he did not expect, appeared with Omar and climbed into the car with Omar."
Okay. Now, that is where the Judge is summarising the evidence. Later on, let's turn to where the Judge makes his finding at page 229. Mr van Zyl, maybe you can save my voice, just read what the Judge finds there under the heading "Aanklag 2".
"... It is clear from the evidence which is common cause, that the charge of conspiracy to murder, has been proven. We are actually of the opinion that the evidence proves beyond reasonable doubt that the accused's handling has already gone so far, that it can be seen as an attempt. It is the case that the evidence of van Zyl, Slang van Zyl, shows that the accused person did not commit the murder, but that Peaches Gordon would get other people to do it. He testifies that the accused person only had to do the monitoring of Omar, but we can actually not agree with the State that van Zyl's evidence in this aspect, must necessarily be rejected. It is not necessarily clashing with the admittance that the accused person would have made to Brenda. It is quite possibly the case that the accused person wanted to elevate his status with the CCB and it is insightful that the accused person, at some stage, indeed did have a Makarov pistol with a silencer in his possession. We are satisfied that Brenda's evidence about the statement that the accused had made, can be accepted. According to the statement, he was outside the house with the weapon and he wanted to shoot Omar and we are satisfied that the accused person had the intention to commit murder and that this act of his can already been seen as an executed handling, and therefore he is found guilty on the charge of attempted murder."
MR KAHANOVITZ: The word was "execution handling". Mr Barnard in fact says that you offered him money to murder Adv Omar, not in his criminal trial, go to bundle B, page 92.
Look at the bottom of page 92, Mr Barnard says -
"... Slang van Zyl showed me a Makarov pistol with a silencer and said that this had been the weapon that Jack had given to them, in order to complete the task on Omar. There had already been coloureds of a crime faction in the Cape, who would complete the task according to Slang. Slang then asked me if I didn't want to do the job, seeing as I would be paid R50 000-00 for it."
Now, do you deny that you offered Mr Barnard ...
MR MARTINI: Mr Commissioner, may I just intervene here. I think for, to make it quite reasonable, is the situation that one should read the whole paragraph, and it is quite clear from further down the paragraph, that this was considered to be a, not a serious proposal and that it was actually a joke that was made at that stage.
CHAIRPERSON: Perhaps if you could look further, I haven't seen it myself, Mr Kahanovitz.
MR KAHANOVITZ: I am aware - Judge for purposes of this question, if Mr van Zyl says that the money was offered but it was a joke, or let Mr van Zyl say so ...
CHAIRPERSON: Was there any mention of offering or paying money to Mr Barnard?
MR VAN ZYL: No Mr Chairperson, not that I can remember.
MR KAHANOVITZ: Mr van Zyl, I am not, maybe you can give us a straight answer here, I mean either you offered Mr Barnard...
MR VAN ZYL: I could never have done it, there was not a budget of R15 000-00 on this project, where I could have gotten R50 000-00 to give it to Barnard if he executed it, no one knows.
MR KAHANOVITZ: Did you ever offer Mr Barnard money of any amount whatsoever to kill Dullah Omar?
MR VAN ZYL: No, not at all, under no circumstances.
MR KAHANOVITZ: All right. Mr Barnard, when he says that you offered him money to kill Dullah Omar, is according to you, lying?
MR KAHANOVITZ: Now, the strange thing is that Calla Botha also says that you offered Mr Barnard money to kill Adv Omar. Please turn to page 6 of bundle B, the third paragraph.
The third paragraph you will see, Mr Botha says in his statement, he is talking about the Omar issue and he is talking about what Mr Barnard had told him. He says -
"... At a later stage I heard from Ferdi that he was approached by van Zyl to gather information relating to Omar, so that Peaches can then shoot Omar. An offer was made by van Zyl to Ferdi for R50 000-00 to kill Omar."
So we can accept that Mr Barnard has told Mr Botha about the offer, and Mr Botha is now repeating in his sworn statement, repeating details about the conversation that he had with Mr Barnard?
MR VAN ZYL: It would appear so, yes.
MR KAHANOVITZ: And once again you would say that is not true?
MR KAHANOVITZ: Now, the Court in S v Barnard has found that Mr Barnard was indeed equipped with the Makarov pistol with the silencer, where did he get that gun from?
MR VAN ZYL: I do not know Sir, you would have to ask him that. He definitely did not get it from me.
MR KAHANOVITZ: What you will no doubt admit to is that considerable pressure was being placed on you to get the job done after Peaches had been delaying for several months now?
MR KAHANOVITZ: If you just needed someone to monitor Omar, let me, before I ask that question, you have already said in your statement or in your earlier evidence that you were aware that Ferdi Barnard was persona non grata in the CCB because Joe Verster had decided that he was a security risk?
MR KAHANOVITZ: If you just needed someone to monitor Adv Omar, why would you risk getting into trouble with Joe Verster, go out on a limb and hire Barnard?
MR VAN ZYL: It was a decision I had taken. I admit it was undisciplined, but I did it.
MR KAHANOVITZ: I am not interested in it being undisciplined, I am putting it to you your version doesn't make any sense. I can understand circumstances where pressure is put on you to make sure that Adv Omar is assassinated, you need a good man to do the job. In those circumstances, you might risk bringing Barnard in, because you know he is an accomplished murderer. But it makes no sense to take that kind of risk merely to hire Barnard to go and do monitoring down in the Western Cape?
MR VAN ZYL: I differ from you, Sir.
MR LAX: Sorry, you didn't answer the one question which was, why did you make that decision? All you said was you did make it, you didn't explain why you made it. Can you remember why you made that decision?
MR VAN ZYL: Naturally Chairperson, I wanted to execute the project regarding Omar and at that point I thought it good to involve Ferdi, so that he could help with the monitoring so that I could make adjustments if it were necessary in order to execute the project.
This is the reason why I used Ferdi and Ferdi approached me shortly beforehand as I had already given evidence, and he offered me his services relating to information. At that point I thought it good and I thought that this would be the suitable occasion to involve a person of his calibre at that stage, to help me.
CHAIRPERSON: Was he going to get paid for his services?
MR VAN ZYL: I gave him a total amount of R7 000-00, Mr Chairperson, and out of this he could possibly have received R2 000-00 as compensation for his services, and the rest was for plane tickets and hotel accommodation.
CHAIRPERSON: Mr van Zyl, you were a successful policeman in your time, when you were at Brixton Murder and Robbery, a good policeman, why didn't you go yourself and do this simple act of monitoring? You weren't worried about being a white person in Athlone, because you said that wasn't a problem with Mr Barnard, one would imagine it is fairly straight forward to monitor somebody, especially a policeman, a person with your background?
Why spend R7 000-00, getting in somebody who your boss doesn't like, or trust, as it was put by Mr Kahanovitz, as a persona non grata, why not just do it yourself?
MR VAN ZYL: Because it was prescribed to us specifically that we should not get involved in the execution actions, or that kind of action, we had to use agents to gather the information for us, and to give execution to approved contacts, because we wanted to determine cut-off points, because we did not want to run the risk of being identified ourselves.
Myself for instance, being identified in Athlone.
MR KAHANOVITZ: But Mr van Zyl, that version makes no sense. Mr Barnard couldn't possibly be what you would call a "cut-off point". Mr Barnard is, if he gets arrested, is going to be immediately linked to the military establishment?
MR VAN ZYL: I agree with you, he was not the appropriate cut-off point, because he knew my identity, but I think that at that stage, I trusted him that if it had happened that he would be identified at the house of Omar, that he would have been able to give an alibi without connecting me with the instance.
MR KAHANOVITZ: Mr van Zyl, I am not only talking about you, I am talking about the risk that using someone like Mr Barnard would have, to the interests of the military establishment. In other words, I can understand if you say "well, if some gangster from the Cape Flats get arrested outside Adv Omar's house, you can say this person's got nothing to do with us, we know nothing about him", if Mr Barnard gets arrested outside Adv Omar's house, well, you cannot do that?
MR VAN ZYL: That is so, but this is what I am trying to explain to you, that I was relying on it that if Ferdi had been confronted by the South African Police, because he hadn't done anything wrong, he couldn't be arrested, according to the instructions that I gave him, they could not arrest him.
If he had been confronted by the South African Police, he could have given them an explanation so that it could not lead back to me or the South African Defence Force.
MR KAHANOVITZ: Mr van Zyl, this was the middle of the State of Emergency, correct?
MR KAHANOVITZ: Right, in the middle of the State of Emergency you hire a former policeman, who is a convicted murderer, who is on the payroll of the South African Defence Force as a safe person to have monitoring Adv Omar's house? Is that your version?
MR KAHANOVITZ: Hadn't Mr Barnard and Mr Botha, they had got into trouble already when they were monitoring the home of a certain Rowland White, do you recall that incident?
MR KAHANOVITZ: The Police came around, they wanted to know from these two strange gentlemen what they were doing, sitting outside the house of Mr White? Remember?
MR KAHANOVITZ: And I assume your superiors were not very happy about that?
MR VAN ZYL: They weren't happy, but those are things that happen.
MR KAHANOVITZ: Didn't Mr Botha get placed on ice?
MR KAHANOVITZ: So you were going to do a similar sort of thing again, a few months later?
MR LAX: Let's interpose for one second. I am a bit puzzled here. The reason you didn't do it yourself, because you had specific orders not to do that kind of thing.
MR LAX: But you also had specific orders not t use Barnard?
MR LAX: So what, either you obeyed your orders or you didn't, how come you chose to obey one and not the other?
MR VAN ZYL: Well, I broke the one rule and I said it right at the beginning of my evidence, and I cannot deny it, and this is why I am giving evidence about it.
MR LAX: Just try and understand the rationale for breaking one and not the other, because there is no difference between Barnard doing it and you doing it. Both are equal security risks?
MR VAN ZYL: I agree with that, but the fact of the matter is if I were to be allowed to break ten rules, and I am only breaking one at the end of the day, I don't think you should ask me why didn't I break the other nine, I just broke the one. I did it and I admit to doing it.
It is just so that I didn't break the other rule.
MR LAX: I am just trying to understand the logic that you may or may not have used in coming to those decisions. But you cannot explain it, because it is a long time ago, so let's leave it at that.
MR KAHANOVITZ: Mr van Zyl, I read your evidence carefully in the S v Barnard case. You failed to tell the Court that using Mr Barnard was off limits, that he was a persona non grata. In fact, you made up a different version entirely at page 1844, line 20.
You were being asked in-chief about whether Mr Barnard was connected to the CCB at the time that you decided to make use of his services. Now the question that is put to you is -
"... did you after this determine whether he was still attached to the CCB, after the death of Dr Webster?"
"... Your Worship, I did. And to place this in context for you, I used Ferdi on a specific project to help me in Cape Town, and the first time I used him was towards the end of March 1989 and at that stage the accused informed me that he was still attached to the CCB, but that he was basically placed on an inactive list, because he would go and execute his tasks outside the country."
"... Mr van Zyl, I first want to get the date, you say March 1989 ...",
and so on and so forth and then you change, you correct the evidence and you say -
"... no, it was in July."
Then at line 10 on page 1845 you are asked -
"... when you used him at that stage, this is July, August, September, do you know whether he was still involved with the CCB, did he tell you anything"?
"... no Your Lordship, at that stage, over and above the involvement with me, it was my impression as a result of what he told me, that he was placed on an inactive list in anticipation of his further instructions to go and work outside the country."
"... Did you then deduce that the CCB would use him outside the country? That is correct. Did you ask him in which ways they would use him? No, Your Lordship."
Now, that evidence is entirely untrue, do you agree with me?
MR VAN ZYL: No, why are you saying so?
MR KAHANOVITZ: Well Mr van Zyl, your evidence up to now has been, you were at all material times aware that Joe Verster had decided at the end of Mr Barnard's probation period, that he would not be used by the CCB, correct?
MR VAN ZYL: No, that is not what I said. I differ with you.
MR KAHANOVITZ: How can Mr Barnard be a persona non grata in the CCB, but at the same time be on some inactive list for use in a foreign country?
MR VAN ZYL: Qualify yourself please, I am just not following your argument.
CHAIRPERSON: I think what Mr Kahanovitz is saying, and correct me if I am wrong, you have testified here that at the time that you approached Mr Barnard, he was a persona non grata in the CCB, he was regarded as a security risk by Joe Verster and you also said that by using him to monitor Mr Omar, you made an undisciplined decision. I think you used the word undisciplined decision?
CHAIRPERSON: Because of Mr Barnard's status in the CCB, whereas if you take a look at the evidence that has been read out now by Mr Kahanovitz on these two pages, that is not the same picture.
Here Mr Barnard is still part of the CCB, he has just been put on ice a bit, he is on a list because he is going to be used overseas, it is not the same picture. This is what Mr Kahanovitz is asking you, what is the situation? How do you marry what you said at the court, to what you have said now here?
MR VAN ZYL: Mr Chairperson, what I testified to in court, does not differ from what I have said up to now. I was aware of the fact and that Ferdi had told me that he was on an inactive list and that he would go and work outside the country in the following year, but I cannot understand that my evidence in court and the evidence that I give here, that it is now said that these are not the same, because to me they are exactly the same.
MR KAHANOVITZ: Mr Kahanovitz, firstly it is not, but secondly it actually goes further than that, because in your statement here, later on you go to say that you had to take R7 000-00 of certain money that had been allocated for another purpose in order to pay Mr Barnard?
MR KAHANOVITZ: Because you couldn't hand in a budget or a receipt for payment for Mr Barnard, because you knew you would get into trouble, correct?
MR KAHANOVITZ: You don't tell the Court in S v Barnard anything about that?
MR VAN ZYL: They didn't question me about this.
MR KAHANOVITZ: What you were doing in S v Barnard, was you were attempting to give the Court the impression that there was nothing untoward about using Mr Barnard in relation to the Omar project, because you didn't want to paint Mr Barnard in a negative light?
MR VAN ZYL: I differ from you.
MR KAHANOVITZ: I am going to deal with your evidence in S v Barnard about the circumstances under which you came to pay Mr Barnard and how much you paid him. Why did you not tell the Judge in that case that the payment wasn't authorised? Just because nobody asked you?
MR VAN ZYL: That is exactly the case, but I want to tell you that the Prosecutor in that case, Mr Ackerman, was exactly up to date, and he led me from my Section 29 statement and from my statement that I made in front of the Commission. The fact that he did not present it, please don't blame me for it.
MR KAHANOVITZ: So it is once again a question of a legal practitioner trying to lead the Court astray?
MR VAN ZYL: That is the statement that you are making, I am not saying it.
MR KAHANOVITZ: Now, paragraph 42 at page 102 of bundle A you say, you have now, it is July, you have sent Mr Barnard to Cape Town, you say
"... at this stage pressure was being applied on me that the Omar project had to be taken forward, I was back to Johannesburg, where approximately in the middle of August 1989, decided Mr Barnard would have to be sent down to Cape Town again with the instruction to monitor Mr Omar again."
Now, who was placing you under this pressure?
MR VAN ZYL: The Regional Manager, Staal.
MR KAHANOVITZ: What did he say to you?
MR VAN ZYL: He wanted the project to be completed.
MR KAHANOVITZ: So you are sitting here with a problem, you've got Peaches who is not moving on the job, how is it going to help to send Mr Barnard, to go and watch - by the way who is Mr Barnard going to monitor, Peaches or is he going to monitor the two people that Peaches has hired?
MR KAHANOVITZ: What is the use of monitoring Peaches, if he is, I mean Peaches isn't even going to shoot Mr Omar?
MR VAN ZYL: I introduced Ferdi Barnard to Peaches and Peaches took Ferdi out to the site, to Omar's house so that he could show him what the problems were that they were experiencing, etc. I think it makes sense.
MR KAHANOVITZ: Now these two other gangsters, who is going to get the Makarov?
MR VAN ZYL: I gave the Makarov to Peaches.
MR KAHANOVITZ: Between the two of them, they are going to have one gun? Why are there two of them?
MR VAN ZYL: That was the proposal from Peaches.
MR KAHANOVITZ: No, but you made the presentation at the "in-house", what was your view, you've got to set out your ideas? You said that two people should be used, why?
MR VAN ZYL: I cannot remember that, but I think it would probably have been a case of the one would do the shooting and the other one would drive away with the car, but I will only be speculating, I cannot tell you.
I cannot remember the details of that project, the submission.
MR KAHANOVITZ: Now, you say in your statement that you paid Barnard R15 000-00, sorry, R7 000-00 for monitoring Omar and at page, this is A115 paragraph 55
"... and also for other tasks that he had executed."
MR VAN ZYL: The only other task that I asked him was the monitoring of Lubowski.
MR KAHANOVITZ: So part of that R7 000-00 was for the monitoring of Lubowski?
MR VAN ZYL: I think it was all for Omar.
MR KAHANOVITZ: You are the one who put into your statement "other tasks that he had performed", and you made the statement shortly after the event, so you tell us what you meant.
MR VAN ZYL: I only used him for two tasks as I said, and then we can assume that it was for those two tasks.
MR KAHANOVITZ: But it was a salary for the work that he had done?
MR VAN ZYL: As I had already said, the largest part of that was also on the expenses related to the plane ticket and the hotel accommodation.
MR KAHANOVITZ: But it was partly salary, partly disbursements?
MR KAHANOVITZ: Please go to page 1875 of the record in S v Barnard, bundle G. Go to line 10, sorry, line 5.
You are asked the following question, he is asking you about payments made to Barnard for monitoring. You are asked -
"... what did this monitoring cost or these recommendations that the accused had made to you?"
"... Nothing, Your Lordship. AT the end of the day, when the project of Omar was ceased, I compensated the accused for his costs that he incurred, hotel costs as well as flying costs and this had a total amount of approximately R7 000-00."
Are you prepared to concede now that your evidence is different?
MR VAN ZYL: Once again you are playing with the words, it is an instance of R7 000-00 that I gave to Ferdi, and if out of R7 000-00, if there was R1 000-00 too much, you may regard it as a salary. At the end of the day, he was satisfied with the R7 000-00 and maybe the cost he incurred was R7 500-00, maybe he received R500-00 too little.
MR KAHANOVITZ: Mr van Zyl, you were asked a direct question. Did you, in this trial, "did you pay Mr Barnard for his services", your answer was "no, I merely reimbursed him his disbursements", correct?
MR KAHANOVITZ: That answer wasn't true?
MR VAN ZYL: I will not say it was a lie as you are trying to point out here, the fact of the matter is that I gave him R7 000-00 which was supposed to cover his costs, and if anything was left over, it was for payment of his services. Technically you may be correct when you say that.
MR KAHANOVITZ: No Mr van Zyl, it is not just technical, the question the Court was interested in in S v Barnard, one of the issues that would reflect Mr Barnard's blameworthiness, moral blameworthiness, was what he got paid for his services, if he was paid, if so, how much. Correct, do you agree with me?
MR KAHANOVITZ: And in that context, you decided to tell that Court that Mr Barnard was actually not paid at all, he was merely reimbursed for his expenses?
MR KAHANOVITZ: All right, so we now get to a stage when a decision is made, sorry before I go on to that, do you accept the finding of Judge Els that Ferdi Barnard attempted to murder Dullah Omar with the Makarov pistol in the circumstances referred to in the judgement?
MR VAN ZYL: I respect the decision of the Court. I did not give Ferdi any instruction and I did not give him any firearm to eliminate Dullah Omar, but I respect the finding of the Court, based on other evidence which was led there.
MR KAHANOVITZ: All right, so we can accept it is a fact that it happened?
MR VAN ZYL: I respect the finding of the Court.
MR VAN ZYL: I said that I respect the finding of the Court.
MR KAHANOVITZ: No, but that is something different, Mr van Zyl.
MR MARTINI: Sorry Mr Commissioner, this is an unfair question. My client, Mr van Zyl is testifying, he is not a Judge, he says I respect the decision. If the Judge found that to be his decision, that is the decision. He respects it. Mr van Zyl is not sitting here as a Judge in appeal or to determine the validity of the Judge's judgement. He says he respects it.
CHAIRPERSON: Perhaps you can rephrase your question, do you agree with the decision?
MR VAN ZYL: Based upon the ... (tape ends) ...
MR KAHANOVITZ: The State said that your version must be rejected, the Judge very nicely said "I don't think it is necessary to reject Mr van Zyl's version, because it may well be that Mr Barnard of his own bat, decided that he was going to take it a little bit further and try to assassinate Adv Omar himself", do you recall that?
MR KAHANOVITZ: So, that is, it is found that that is what indeed happened. Now, what you are saying is that in doing that, Mr Barnard was disobeying your instructions?
MR VAN ZYL: If that was the case, definitely.
MR VAN ZYL: Seen in the light of the Court's finding, he did not comply with my instructions.
MR LAX: If I may interpose, did you actually tell him not to kill Omar?
MR VAN ZYL: It was never an instruction, his instructions were quite clear Chairperson, to do the monitoring of Peaches, the movements of Omar so that I could see what the reasons for the delays were in the project. At no stage, that is also why the statement that he made that I would have offered him R50 000-00 to kill Omar, is absolutely absurd. If Calla Botha turned around at the end of the day and said that I told him, but he also heard this from Ferdi Barnard. I do not know where he sucks this out of this thumb and with respect, I would ask the Commission to ask the questions of him, I cannot answer those questions.
MR LAX: Yes, we will ask those questions of him in due course. My only issue was it never came up that he might want to kill the guy?
MR LAX: You never discussed that?
MR KAHANOVITZ: Mr van Zyl, let's go on to the poisoning, did you prepare a "voor-studie" a written "voor-studie" saying "let's move from plan A to plan B"?
MR KAHANOVITZ: No? Right, where did the idea come from?
MR VAN ZYL: Peaches told me that because of the circumstances in which Mr Omar had his heart attack, that he had access to his house and that he could obtain some of those tablets, so the initial idea emanated from him and I discussed that idea with the Regional Manager and I then received instructions from the Regional Manager to ask Peaches to obtain some of these tablets, so that I could process it.
MR KAHANOVITZ: So the idea originated with you on the basis of information that Peaches had given to you?
MR KAHANOVITZ: All right. What did Peaches say about how he came to have access to the Omar household?
MR VAN ZYL: I cannot recall, I think he knew someone who worked there.
MR KAHANOVITZ: Did you believe him?
MR VAN ZYL: I don't know what to believe today.
MR KAHANOVITZ: I am asking you at the time, did you believe him?
MR VAN ZYL: Yes, I would say I believed him.
MR KAHANOVITZ: Did you then have an "in-house" to discuss this new plan?
MR KAHANOVITZ: How did you get the authority to proceed to a plan involving the use of poison?
MR VAN ZYL: I discussed the matter with the Regional Manager, Staal, he came back to me and said that the matter had been discussed with the Managing Director and that because there was already an approved project, I could continue with the obtaining of these tablets.
MR SIBANYONI: Did you have any amount of discretion in initiating some ways or some method of implementing the projects?
MR VAN ZYL: In terms of the pre-study, I did have a discretion, yes.
MR SIBANYONI: And if you come up with an initiative, you obviously have to report it so that it must be discussed at an "in-house"?
MR VAN ZYL: That is indeed the case.
MR LAX: Sorry, just to clarify, what do you mean you had discretion with regard to the "voor-studie", in what sense did you have a discretion?
MR VAN ZYL: I would say Chairperson, in terms of an instruction is given to me to go and do a pre-study, as in this case, with regard to Omar, and then the discretion is with me, after negotiation with the agents whom I would use in that specific instance, to submit a plan as to how best a project could be brought to execution to eliminate Mr Omar, in other words it is not said to me that at that stage of the pre-study, "go out, he has to be killed in this manner, go and look at the possibilities and come back", therefore I had a discretion at that stage to exercise, and I placed this in writing, and then later it is discussed at an "in-house".
MR LAX: Just one further aspect that I meant to ask much earlier this morning, and this is an appropriate time to do it, did you list a range of alternatives that you may have considered in your "voor-studie" so that when the management came to look at your "voor-studie", they could evaluate the alternatives and choose, in spite of what your recommendation might have been, whichever alternative they thought was appropriate?
MR VAN ZYL: Chairperson, yes, as I have said, I think alternatives have been discussed at some stage, but I cannot recall, it is possible that it was the case, yes.
MR LAX: It is not the question of them being discussed, did you list them in your feasibility study?
MR VAN ZYL: No, not that I can recall.
MR LAX: So invariably you would put one particular method of operational execution in such a feasibility?
MR LAX: Thank you Mr Kahanovitz, sorry.
MR COETZEE: Mr Commissioner, at this stage, as you would have noticed, Mr Barnard, due to security reasons, had left. In the normal sense, I would not request this of the Court, but as this is an aspect where we are in now, which is directly implicating Mr Barnard, I would suggest that we do not continue at this stage in his absence with this examination, I just feel that this prejudice him.
I can take instructions, but I feel he needs to hear the evidence in this regard, because it is so pertinent to his application.
CHAIRPERSON: I believe Mr Barnard has left early because they did not want to get, they want to beat the rush hour, they don't want to get caught in traffic?
MR COETZEE: Yes, it is in accordance with his security.
CHAIRPERSON: That is what happened at the last hearing.
MR COETZEE: Yes, that is due to his security situation.
CHAIRPERSON: I think what is being put it not unreasonable Mr Kahanovitz. I don't know if you are in a position to proceed with other aspects, not dealing with Mr Barnard, or should we just take the adjournment now? I think the last time we met, when Mr Barnard had to leave, he wasn't directly involved?
MR COETZEE: Yes, Mr Commissioner, I would not normally make this objection, this is just a very specific situation.
CHAIRPERSON: I can understand that something might be said which you need to instantly refer to your client, as to whether what is being said is correct or not.
MR KAHANOVITZ: Mr Chairman, maybe at the same time we can talk about maybe starting a bit earlier tomorrow, so that Mr Barnard's security officials know about that before he leaves.
CHAIRPERSON: I believe it is pretty much the same problem. I think last time it was half past nine was decided on?
MR KAHANOVITZ: Shall we make it half past nine?
CHAIRPERSON: Half past nine, yes.
MR COETZEE: Mr Commissioner, Mr Barnard this morning was here just shortly after nine, he was here about, I think at the latest quarter past nine. I think if we can start at half past nine, I think that will be appropriate, as last time?
CHAIRPERSON: Yes, I think so, half past nine, if we can start at half past nine, and then Mr Kahanovitz, you wouldn't prefer to switch on to some other aspects, I see it is only 20 minutes left?
MR KAHANOVITZ: Let's call it a day.
CHAIRPERSON: Yes, we will then adjourn until tomorrow at half past nine in the morning, Mr van Zyl will continue to be questioned by Mr Kahanovitz. Thank you very much.