amntrans AMNESTY HEARINGS 1999-05-05 JOHANNESBURG 3 W F SCHOON & OTHERS COSAS FOUR https://sabctrc.saha.org.za/hearing.php?id=53341&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99050321_jhb_990505jh.htm ON RESUMPTION CHAIRPERSON For the record it is Wednesday the 5th of May 1999 and it is the continuation of the Amnesty Applications of WF Schoon and Others in respect of the Cosas Four incident. The panel is constituted as previously indicated on the record and the parties are represented as indicated on the record as well. Mr Tshabalala you had to or you and Ms Thabethe had to consider this question of the brother of the victim Mr Musi. Has that been resolved? MS THABETHE It has been resolved Chair, we have decided not to call the brother and to continue with closing arguments. CHAIRPERSON Very well. Then I think Mr Visser it is over to you. MR VISSER Chairperson, if I may proceed then with the written argument: We say paragraph 2 that the applicants, who have confirmed in this case, when I say the applicants, I speak of my own applicants Chairperson, Exhibit A which includes statements and allegations made of fact regarding their background. That they grew up in a conservative environment and against this background and according to their beliefs and upbringing, that which was imprinted on their minds through the media and political rhetoric of the time, they were firmly convinced that those actions which they were engaged in as policemen were correct, justifiable and in accordance with their duties and within their express or implied authority. And, in fact, Chairperson, what was expected of them. "Almost all policemen appearing for us joined the police force after the National Party became the government of South Africa in 1948 and implemented the Apartheid Policy. They were brought up under this doctrine which was supported by schools and all the Afrikaans churches. There was rarely any voice in the circles they moved in, condemning the policy. On the contrary, the churches proclaimed the policy to be in accordance with the Scriptures and even acted against preachers like the Rev Beyers Naude who spoke out against it. As policemen they were indoctrinated to defend the policy and the government of the day, even with their lives, should it be necessary. They accepted the legally enforced environment as the accepted and acceptable social structure of the country." That reference is made at page 2, the 6 should just come out its at page 2 and the reference is also to page 2 in the Cronje decision. ADV DE JAGER MR VISSER Chairperson if we then may go to paragraph 38 we refer to Section 20, sub-section 4 of the Act and I quoted there for you "In applying the criteria contemplated in sub-section 3, the Committee shall take into account the criteria applied in the Acts repealed by Section 48" those are, and I again quote from Section 48 "Those include the Indemnity Act of 1990, The Indemnity Act of 1992 and the Further Indemnity Act of 1992". Chairperson in paragraph 40 the TRC Act provides, in sub-section 20 sub (1) for amnesty to be granted in respect of acts, omissions or offences which were committed in the course of the conflict of the past. That immediately then constitutes the first requirement that has to be found to have existed in regard to each and every incident that application is made for amnesty, which comes before you. I have dealt, Chairperson, very briefly with that conflict of the past. I would submit to you that most of that, if not all, must at this stage be taken to be common cause. supports that contention. Chairperson, as the war unfolded, in paragraph 47, "members of the South African Police in particular experienced an ever increasing departure from their normal duties of conventional policing. It became to be expected of policemen and women to act as soldiers in the conventional war situation and that without the benefit of Marshall Law." CHAIRPERSON No. MR VISSER You were not. The point we make, Chairperson, is precisely that. That in the minds of people in the course of the war what was clearly illegitimate, came to be seen as something which was justifiable and although not legal, at least permissible in terms of their duties as policemen. I refer also to a very short extract from the evidence of Mr Adriaan Vlok in the State Security Council Hearing in Johannesburg, which says: "From information which has now been made available it appears that there are possibly matters in which I became unconsciously involved, or for which I must take co-responsibility indirectly and I am referring here to the illegal acts committed by certain policemen who committed certain acts based on certain recent presumptions seen from their perspectives of what I said or did." And then, Commissioner de Jager again referred to it during this hearing, the frequent public use of the expression eliminate, take out, remove from society, and suchlike only serve to create a war psychosis and an assumption of legitimacy for action by the Security Forces against the liberation movement and their supporters in the minds of the members of the Security Forces and indeed the general public. We all spoke about terrorists, we all spoke about wiping them out, it was on the news and on television, in the papers, it is only now with the sense that has come from the sobriety of having a Constitution and having been placed in a position, Chairperson, where one thinks about these matters objectively, that one starts questioning it, but there was a war psychosis in this country and I ask you to bear that in mind when considering the applications of these amnesty applicants. The security legislation which prevailed was insufficient to empower the security forces to deal with the onslaught effectively. May I deal with that point on the evidence immediately? "The war had a clear military character which escalated up to the point that violence on all sides had grown enormously and that the actions by everyone impacted on helpless people." It is a sad truth of the matter that in the Amnesty Applications before the Amnesty Committee from time to time one finds the result of that war and as it had affected innocent people as well. We say, Chairperson, page 9, 56, "In the name of politics thousands who were not members or even supporters of one or the other side of the conflict became dramatically affected by the war." Paragraph 16 makes the simple point that the armed struggle was intended to include the whole of the black population at least and that comes from the statement during 1980 by the central committee of the South African Communist Party who was in alliance with the ANC. The entire nation, they call it, is to be engaged and that is what made this war such a wide-ranging affair. My attorney says I should perhaps just read it, at paragraph 60, top of page 10: Paragraph 61: That is the phase in which things were targeted, Chairperson, rather than people. With the passage of time the target selection purposefully shifted to security personnel and their families and others, of course. All politicians, particularly black politicians were to become so-called legitimate targets within the policy framework of the ANC SACP Alliance. And we know what the result was as we set out in paragraph 65. "On the other hand the black people did not find the social and political structure acceptable and a revolution become unavoidable. No acceptable political solution was offered by the government and they had to rely on the security forces to keep them in power. The defence force was used against the forces repressing Black Nationalism, at first in operations outside the country, borders of the country, but later even internally. It escalated into a full-scale war although never a declared war. The fact that it was not a declared war against an external enemy forced the government to involve the police force to act against their co-citizens. That is the real tragedy of the conflict of our past. It was, in fact, a civil war. Perhaps I should just, with your leave, read the next paragraph as well. "According to the evidence before the Committee, the police found it impossible to counter the onslaught by using the customary policing methods. An espionage network was set up, the liberation movements were infiltrated, informers were used, so-called terrorists were captured and turned into informers or even became members of the security police, not as so-called Askaris as is stated here, that is when they were informers, but they became members of the Security Police. The Security Police were seen to be, and in fact were, the thin line standing between the government of the day keeping them in power and the ANC and other liberation forces, intent on grasping power through a successful revolution. The liberation forces declared policemen to be legitimate targets for killing". As we say Chairperson the target selection changed over the years. Paragraph 71 is what I was looking for. Later the target selection was extended to include members of the security forces as well as their families and possessions, "government stooges", collaborators and informers, homeland leaders and structures, and farmers. The so-called government stooges and informers of the police, referred to by the ANC as collaborators or sell-outs, were legitimate targets of the ANC. In Sishaba of January 1979 at page 28 one reads the following, and please note, Chairperson, that this is prior to the incidents which are being heard by you now. "In the recent period some of the black members of the police force and informers have been eliminated and there is evidence of the growing skill of the underground as well as the support of the people." And then later in Sishaba 1986 a report of an interview with Mr Chris Hani, the late Mr Chris Hani, and the caption 25 years of armed struggle, he says : And in 1985, the year before that, Mr Joe Modise, the MK Commander said: "Collaborators are being weeded out and are lucky when they are able to escape with their lives." That was the philosophy and the sentiment of the time in regard to the kind of people that you heard evidence about in the present Amnesty Application, namely a member of the security forces in the form of Mr Nkosi and a black councillor in the form of Mr Matsidiso. If I may pause there. In fairness, Chairperson, one knows that the position changed as time went by and that actions by security force members became more and more proactive, the buzz word used in that regard. We know that is so. In fact we have one such instance in the very incident which is serving before you now of proactive action rather than reactive action. Chairperson, we would like to emphasise what we say in paragraph 78 because, in a sense, this will be the driving factor. One or more of these considerations, I daresay in virtually every application by Security Force members that you will hear, in our present application the aspect of the training has been mentioned by Mr Mfalapitsa, the action against people who supported the Cadres who came into South Africa, either here or in the neighbouring states, you will hear in the next application. And so one can go on. One will always find one or more of these aspects involved in Amnesty Applications of Security Force members. The operational structures referred to were from time to time of necessity utilised in a proactive fashion in cases where the structures concerned their personnel, agents/informers were faced with the gravest physical danger as a result of a leakage of information or the activities of traitors. These were often life and death situations of a very real nature and in order to protect both lives and property, it was decided in some instances to strike first and get in the first body blow and Chairperson, we submit that from the background as explained by the Act in its provisions, this is directly applicable to the Cosas Four situation. The logical instruments which were available to the previous government for resisting the onslaught were the Defence Force and the South African Police. What we have done Chairperson, and we may be forgiven for thinking that the decision which we read to you just now about the role of the S A D F and the S A P and the Amendment of the Police Act from what it was in 1912 to the present Police Act or to the then Police Act, Section 5, were taken from our argument as incorporated in the decision in the Jack Cronje case. If I may skip up to page 16 paragraph 86 because I have really read from the decision just now, which covers the previous paragraphs up to paragraph 86. In paragraph 86 we submit, Chairperson, that this brought the police force square in the arena of politics. That is because they now had to deal with internal security, insofar as the conflict of the past was a political conflict, a war of ideologies. So they became the political fighting arm of the government and, in no uncertain way, also clearly of the National Party if one has to believe what Mr Adriaan Vlok as a previous politician had told the Committee. Policemen were wearing two hats as it were. On the one hand they had to maintain law and order and act in protection of society and its property and on the other they found themselves in the position where they had to act against that selfsame society when it appeared that those members of society were members of liberation movements or were advancing their policies and strategies. A further paradox which arose was that Security Branch policemen were expected to uphold the law and also to successfully suppress the revolutionary onslaught in a war situation. And that takes it a step further Chairpersons, and that was the evidence of Gen van der Merwe in the Bopape hearing. In the meanwhile they were faced with practical problems which were hard to solve. We give as example the ANC SACP Alliance was succeeding with their efforts to mobilise the masses into civil disobedience. The security forces had a faceless enemy with which to contend. An enemy who did not wear a uniform or insignia which made him identifiable. The man working in the factory during the day became the soldier at night, we know that Chairperson. The nature and form which the armed aggression took was the form of placing of limpid mines, motor car bombs and other explosives which killed, indiscriminately, mostly civilians and that gave rise to an enormous, Chairperson, frustration because how do you prevent it? The only way would be through information but there is no other way. Gen van der Merwe testified before the Amnesty about a grey area which developed in the minds of some of the members of the Security Branch as to what was legal and what was illegal and that sentiment is also expressed in the statement by the previous Commissioners of Police and I give the reference there, Chairperson. ADV DE JAGER Mr Visser, it was never the policy the stated policy of the Nationalist Party and the Government, to kill people inside South Africa, so they could never have acted in support of the policy of the Nationalist Party or the government of the day. MR VISSER ADV DE JAGER MR VISSER ADV DE JAGER But could it be said that an informed person like a General in the police could have thought that he was authorised? MR VISSER ADV DE JAGER It may have been their policy to oppose it, but was it their policy to kill? MR VISSER CHAIRPERSON Which applicants are you referring to here Mr Visser. MR VISSER CHAIRPERSON Yes, I assume that your submissions when you deal with applicants in your Heads of Argument, I assume you refer to your clients in this matter. MR VISSER It includes them, yes. It includes them, but we make a general statement of fact here Chairperson, we say that them being policemen and with the view of what they were supposed to do, they were part of an operation structure which was properly authorised, they were a properly instituted police force in terms of its creation, cover legend and operational funding and utilisation and they were used as the political arm of the government. CHAIRPERSON MR VISSER CHAIRPERSON Yes, I understand MR VISSER Not in their own personal CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER There was the evidence which Commissioner de Jager might remember of Mr Taylor in the London Bomb Case which was very much in point. But this, Commissioner de Jager, I hope might be our answer to your question which you posed to me earlier. CHAIRPERSON MR VISSER I can tell you now Chairperson. 22 (a),(b) and (f). van der Merwe said that it was understandable that in this situation the distinction of what is legal and what is illegal, and what was expected and what was not expected, became a grey area for some of the members of the Security Branch, and really speaks for itself. 105, Chairperson, if I may go to 105. Policemen were compelled to do duty in Namibia and Zimbabwe and we know there was a war going on there. This duty involved the fighting of the so-called bush war. In this bush war they were required to act as soldiers and not as policemen. They were not expected to do normal police work, they didn't carry dockets etc. They were expected to seek and eliminate. Having been subjected to the mentality of a soldier and having acted as one, upon his return to the R S A policemen became once again expected to conduct their actions according to prevailing statutory rules and regulations and it may be fairly stated, and again Col Taylor gave evidence in that regard, it may be fairly accepted that many policemen were able to make the adaptation back to normality, but it is equally clear that some of them were not. And he referred the Commission in the London Bomb Case to some of his colleagues who were just not able to make the adaption back to normal society after having been exposed for long periods of time to bush war conditions. Chairperson if I may then go to the next heading which is Legal and Statutory Issues. Paragraphs 106 and 107 emphasise simply the point of reconciliation which Justice Khampepe has so eloquently put it during last year, is really what the whole process is about and of course quite correctly she said so, having regard to the provisions of the post amble of the Interim Constitution and the objects of the TRC Act. And also, I refer to the Azapo case, where Justice Mahomed, also just as eloquently, summarised the situation in that regard. The first part then deals basically with the importance of the promotion of national unity and reconciliation and that is what should be seen to be done in Amnesty Applications before you Chairperson. Now if we can turn to the TRC Act, Chairperson, we say that those sentiments are included and then immediately we go in page 23, paragraph 114, under the heading Facilitate and Promote the Granting of Amnesty, to a brief discussion of what the meaning of that was intended to be and how it should be viewed. We say, Chairperson, first of all, we give you two extracts from the TRC Act Section 3(1) and Section 4(c). The reason why we do that is that you will observe that in sub-section 3(1), the objectives of the Commission is dealt with and in sub-section 4(c) the functions of the Commission are dealt with. In each case, in the case of the first in Section 3(1)(b) the words "facilitating the granting of amnesty to persons" are used and if you look at 4(c) also, the same words except that it says "facilitate and promote the granting of amnesty" are used. Chairperson, the reason why we set out both those subsections is for the following reason. It may be suggested or argued that when the act speaks of facilitation, it refers to the formal administrative facilitation and of course that would be correct, that if 4(c). But we submit that it goes wider and that the Legislature made it absolutely clear that that is not where it stops, its by inserting the same words in sub-section 3(1) which deals with the objectives of the Act. Thus we submit that the Amnesty Committee in terms of the provisions of the TRC Act, shall facilitate the granting of amnesty and the one we talk about is the one in sub-section 3(1). CHAIRPERSON Yes, but how do you bring that in relation to the Amnesty Committee? The objectives of the Commission. MR VISSER Because the Amnesty Committee is, per definition in Section 1, part of the Commission for the purposes of certain chapters and this falls within that chapter. CHAIRPERSON Not this section 10 and Chapter 6 and 7. There might be another section as well. Section 10, Section 11, chapter 6 and 7. MR VISSER CHAIRPERSON So does this not relate to the role that the Commission ought to be playing in regard to the work of the Amnesty Committee where they have to, as they did initially, promote this idea to invite people to come forward and to apply for amnesty, to explain the process of the amnesty and all that sort of stuff? MR VISSER No Chairperson, then the words "the granting of amnesty" makes no sense. CHAIRPERSON MR VISSER CHAIRPERSON Yes, no, my question relates to how the Amnesty Committee fits into this. This seems clearly to refer to the Commission. CHAIRPERSON But the only body that can grant Amnesty is the Amnesty Committee. CHAIRPERSON MR VISSER CHAIRPERSON Yes, that is so. CHAIRPERSON Is it convenient? MR VISSER Yes, it is convenient, but I just want to place on record, I can take that argument no further in the light of what you have put to me, Chairperson. CHAIRPERSON COMMITTEE ADJOURNS. ON RESUMPTION CHAIRPERSON Mr Visser. MR VISSER Now interestingly in the TRC Act it is catered for both an objective as well as a subjective requirement. We say, Chairperson, that where the Act speaks of an act, omission or offence which has to be associated with a political objective, it is an objective test, but in 20 sub(3)(a) the Act speaks of the motive of the person, which is clearly subjective. So interestingly in the TRC Act, in regard to the very same consideration namely the political aspect of it, you have an objective as well as a subjective test. That would translate into this, Chairperson, in our respectful submission that even if objectively there appears to be no political objective associated with the Act, sub-section 23(a) can make it so by virtue of what the particular applicant had in mind when he committed the act. ADV DE JAGER I agree that the present act is even wider than the Indemnity Act because it defines it as associated with a political objective while the other one required a political motive. MR VISSER ADV DE JAGER MR VISSER ADV DE JAGER MR VISSER ADV DE JAGER Yes but if its not interpreted then no policeman would have been able to and clearly it was the intention that members of the Security Forces should also be granted amnesty. MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON I think we must ignore the phrase "within the scope of his/her express or implied authority" because that seems to be part of the test here, its conjunctive, it says and not or, so that you could possibly have gone past on your argument if it was an or. MR VISSER CHAIRPERSON MR VISSER Well, du Preez decides on his own, what then? What is his authority other than being an appointed policeman in terms of the Act with the authorities which the act gives. CHAIRPERSON MR VISSER ADV DE JAGER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON The difficulty, a practical one, in the sense that all this presupposes people coming forward, being honest, being open and frank and telling the country what this conflict was all about, particularly leadership figures. MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER Chairperson as far as Section 22(f) is concerned, at page 31, we say that in order to facilitate the granting of amnesty the legislature made provision in subsection 22(f) with regard to a person mentioned in (a),(b),(c) and (d), that it would be sufficient if he bona fide believed that he was acting within the course and scope of his duties and within the authority when he committed the offence or the act. We say that presupposes a subjective act, bona fide belief, and in paragraph 148 we say, Chairperson, that that subsection is based on the supposition that the person referred to in those other subsections was, in objective fact, not acting within the scope of his duties because if he was, then Cadit Quaestio, but if he was not acting within that scope, then the intention of the lawmaker in this subsection, was to cater for that person who bona fide believed that he was so acting, to obtain amnesty. It goes no further than that, Chairperson. "The situation, whether the acts were committed in the execution of an order or with the approval of the ANC, was answered by the Committee with reference to authority, that a private soldier is protected from liability for acts done in obedience to the orders of a superior officer, if the orders are not so manifestly illegal that the soldier must or ought to have known them to be so and if the soldier honestly believes that he is doing his duty in obeying them." The point is simply this, Chairperson, that Rorich, for example, is an excellent example, who complied with an illegal act. That can never stand in the way of him being granted amnesty if he complies with the other requirements of the Act. ADV DE JAGER You mean an illegal order. MR VISSER Chairperson you have heard the evidence of Mfalapitsa. You have heard the evidence of Jan Coetzee. What, we submit, you can accept on the evidence is that there was a report about four people who were going to advance the struggle in one of two, or in both of those two ways. The first is that they intended to assassinate W/O Nkosi and/or a black councillor, Mr Matsidiso, on the evidence of Coetzee and the second is that they intended leaving the country for military training in order to, as Mr Musi put it, fight against the Apartheid Government. So may I just deal with that issue? CHAIRPERSON MR VISSER Yes, and I added to that the preservation of the lives of the people that we mentioned. CHAIRPERSON Preservation of Nkosi and the other one, the councillor. MR VISSER And their families, because it was a question of attacking their homes and also the protection of the life, as well as the identity, of Mfalapitsa. As far as that is concerned, you heard evidence from the applicants, how important they viewed the protection of his identity, not only from the obvious point of view of protecting his life, but from the point of view of the information which he would have been able to give the police coming from where he was, having been an ANC trained person in the USSR himself. CHAIRPERSON MR VISSER If Mfalapitsa had walked away? CHAIRPERSON Yes, after this first meeting where he told Musi that he is in a hurry and they had this sort of hurried discussion. What if Mfalapitsa disappeared? Would there have been any threat to his life? MR VISSER We would never know because Mfalapitsa unfortunately, all that we know about the situation is what was reported. CHAIRPERSON Yes, so in other words the threat to his life arose because of his continued contact and trying to lure these youngsters into getting military training. MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER Oh at the end. CHAIRPERSON MR VISSER CHAIRPERSON Yes, they have a meeting and they walk away. MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON Yes I think there we have a dispute of fact again between what your clients were saying and what Mfalapitsa was saying. MR VISSER Yes, I know, yes. CHAIRPERSON MR VISSER CHAIRPERSON Yes, I want to know where the threat arose. MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER CHAIRPERSON ADV DE JAGER MR VISSER CHAIRPERSON MR VISSER ADV DE JAGER Stick to the Act, what does the Act require? MR VISSER They have to be supporters of a political movement. ADV DE JAGER MR VISSER CHAIRPERSON MR VISSER ADV DE JAGER MR VISSER My attention has just been drawn to the fact that in fact in the Nietverdiendt there has been amnesty granted to Cronje on those facts. CHAIRPERSON MR VISSER CHAIRPERSON So are you submitting that you clients acted under these circumstances, they acted justifiably pre-emptively in neutralising, killing, these people. Is that the crux of your submission? MR VISSER CHAIRPERSON In the context of the amnesty provision, they were justified in pre-emptively killing the three and attempting to kill the fourth one, under these circumstances. MR VISSER CHAIRPERSON ADV GCABASHE MR VISSER ADV GCABASHE MR VISSER ADV GCABASHE No, no, no. What the young people said to Mfalapitsa at that first meeting you will agree was that they wanted to go out of the country. You agree with that, that was the evidence, that is common cause. MR VISSER ADV GCABASHE MR VISSER Your recollection, with great respect, is incorrect. Its incorrect. ADV GCABASHE MR VISSER ADV GCABASHE MR VISSER ADV GCABASHE ADV DE JAGER Can I just ask you, Adv Gcabashe has referred to the time lapse. Do your clients agree the time lapse that was sketched by Mfalapitsa, that within a matter of days this entire thing was wrapped up and done? MR VISSER CHAIRPERSON No, no, my point is a different one. I want to just hear whether you have a submission on the time lapse. Now we have the time as, regardless of how many meetings there were, it seems that the first contact was during the week, it could have been any day in the week, we're not sure about that. The second contact was on that Saturday of that same week and the training and the incident was on the Monday immediately following on that Saturday, is that common cause, or what? MR VISSER ADV DE JAGER MR VISSER CHAIRPERSON MR VISSER ADV GCABASHE MR VISSER CHAIRPERSON CHAIRPERSON At the insistence of Coetzee? MR VISSER ADV DE JAGER ADV DE JAGER Not common cause in the sense of, Mr Musi said Nkosi was never, so its not common cause on that basis. It could be common cause between Mfalapitsa and the other members, but Musi said Nkosi, it never entered the picture. MR VISSER CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Yes Mr Visser. MR VISSER IN ARGUMENT (cont) On the evidence of Mr Mfalapitsa the first intimation to him was that they wanted to leave the country to receive military training and that he then or later tried to dissuade Mr Musi from doing so by offering him training inside the Republic. The evidence that W/O Nkosi was targeted was denied by Mr Musi. He says they never had such an intention, which of course was not surprising, bearing in mind the fact that Mr Musi is not an applicant for amnesty and (b) as a result thereof he could only implicate himself in criminal activity if he were to have admitted that they intended to assassinate Mr Nkosi. His answers in this regard were clearly disingenuous. He was even driven to the point where he testified that Security Policemen and black councillors were there friends and assisted them and that there was a cordial association between him and Nkosi. Flying in the face as that evidence did of his own evidence that Nkosi was present when he was brutally tortured, on his own evidence, in order to disclose the name of the person who either gave the explosives to them or who trained them or who transported them, whichever. We would submit Chairperson, that his evidence, insofar as it conflicts with the evidence of any of the applicants, ought to be rejected. CHAIRPERSON MR VISSER CHAIRPERSON MR VISSER ADV DE JAGER MR VISSER CHAIRPERSON No, he said that out of himself but if it was the policy of the organisation that he was to join then of course he would do it. MR VISSER Yes I was going to say that he did make that concession. But you will recall that when I asked him the first questions in this regard he blatantly denied that he would have acted against persons, because I asked him about persons and objects, you will recall. But quite correctly, at the end, and I think it was perhaps more being pressurised than anything else he did concede that if that were the policy of the ANC then he would do it, but we know that it was the policy of the ANC, and it was the target selection of the ANC considered to be a so-called legitimate target. Now Chairperson, on the basis of proportionality if the four activists were assassinated after the first meeting, namely, and I think this is the question that Commissioner Gcabashe and yourself were posing to me earlier, would it then have been proportional given the fact that at that stage, on the evidence of Mfalapitsa the only thing that they did was to profess a desire to go for military training? Now Chairperson, in spite of what Mr Musi tried to convey to you they were not young children, first of all. Musi was 18 or 19 years old at the time, according to his date of birth, 1958. Secondly, they were not so politically inactive being members of Cosas, and you will recall how he tried to play down the role of Cosas on the West Rand, where the experience was that Cosas was an active - I am sorry I said '58, 10th of September 1963 - I am just being corrected, but he was 18 years old, Cosas and its members were very militant in those days, Chairperson, perhaps with very good reason. CHAIRPERSON Yes, but what was the position in Kagiso? MR VISSER Chairperson you heard evidence from Mr Grobbelaar in which he said that there were incidents throughout, virtually daily. He was asked that evidence and he gave it, referring to the West Rand, Soweto and surrounds, as well as Krugersdorp, and that wasn't challenged. Mr Musi tried to tell you that the only thing that they were concerned with, as members of Cosas, was to establish SRCs. Well that is not correct as we know. The problem was, during the struggle, was what the SRCs did in the view - which was wrong or not acceptable in the eyes of the then government, that was really the crisis. CHAIRPERSON But was there an SRC in Kagiso? MR VISSER He was here Chairperson, I don't know, I didn't ask him that. He says he was a member of Cosas and a member of the Residents Association. He didn't say he was a member of an SRC but he says they were struggling to establish them. CHAIRPERSON That's my impression as well, that this wasn't a well-established Cosas infrastructure that they were having. It looks like they were in the throes of really establishing the Cosas presence in Kagiso. MR VISSER Chairperson really, if this Committee is not prepared to accept that Cosas was a militant student organisation of which its members were involved in protest action, boycotts, malicious damage to property and generally inflaming the atmosphere, then I am afraid we are going to have to bring evidence to convince you of it. CHAIRPERSON At what stage, at what stage are you - the scenario you are sketching, at what stage is that? We are looking at 1982. MR VISSER Well according to the finding of the Amnesty Committee the revolutionary war gained momentum since 1979. CHAIRPERSON Yes but Cosas specifically. Well I am not sure to what extent this is really going to help us, but whilst we are on the topic let's try and see if we can't sort it out. MR VISSER I have to agree Chairperson with what you are saying, and that is that it really isn't that relevant. What is relevant is that here were four people who wanted to go and undergo military training. It would be incorrect to assume without any evidence to that effect that they were innocent, totally unknowledgable about politics at the time. A black youth of 19 years old at the time of the struggle in 1982 would have to go a long way to convince anyone that he wasn't aware of what was going on around him politically. CHAIRPERSON Yes, no I mean that goes without saying. You wouldn't have been living in South Africa ...(intervention) MR VISSER Yes that's a ...(intervention) CHAIRPERSON ...if you are white. MR VISSER Well then we can go to the next step, then we can go to the next step. CHAIRPERSON Ja, the difficulty we have is that we have got to place these people at some or other level. You would use the term "activist" when I sort-of tried to raise it with you at that stage. MR VISSER Yes. CHAIRPERSON So that's really what we are talking about. And you are quite correct, we are focusing on these four people. MR VISSER Yes. CHAIRPERSON And that is really what we are concerned about, where do we place them? You have used the term "activist". Mfalapitsa had said that he hasn't really shown any interest in their political activities. In fact he knew zero about the three that got killed. He knew something about Musi. Musi's family seem to have been involved in the ANC sort-of structures and so on. MR VISSER Yes. CHAIRPERSON So that's what we are grappling with. I mean are we dealing with combatants? Are we dealing with people that your clients could have justifiably viewed as part of their political enemy, even their military enemy? You know that's the sort of... MR VISSER But that's the point I am coming to right now. Having professed their intention and desire as they did on either the one or the other basis, made them exactly that. It made them potential combatants and nothing less than that. CHAIRPERSON Yes, I think the point that my colleague Advocate Gcabashe made wasn't that the case with thousands of youths in the township at that stage? So you would have a - you would have potentially a whole society, community of black youths who would be liable to get killed by the security forces simply because they show an interest in going into exile. Because I mean it's common knowledge that after 1976 you know this idea of going into exile you know this was rife amongst the youth, the black youth in the township and so on and so on. Were they all targets to be killed? MR VISSER Well Chairperson I can't speak for each and every policeman who got involved in each and every one of those situations. All that I can tell you is that the Amnesty Committee has not considered that aspect as a reason not to grant amnesty in precisely those circumstances, and I wish to refer you to this if you would allow me. In the case of Brigadier Cronje in his amnesty application at page 12 the following transpired, in the words of the Amnesty Committee: "The applicants testified that a certain Mr Mamasela infiltrated a group of young activists in Mamelodi and in the process of his infiltration Mamasela was informed by this young group that they were interested to go for military training outside the borders of the country. Mamasela relayed this information to Brigadier Cronje who together with Commandant Charl Naude of Special Forces in the South African Defence Force devised a joint plan to prevent the said activists from going to military training". And the plan was they killed them. What happened is Mamasela offered to take them with a kombi which he professed to be his outside the borders to facilitate their departure from the Republic. They were taken to a place near Nietverdiendt and the Amnesty Committee said this: "The applicants conceded that they were not aware of what Mamasela might have exactly conveyed to the activists save to state that they had instructed Mamasela not to entice the youngsters, and had emphasised to him that the youngsters had to approach him out of their own accord". That was the only evidence that was given. "We have found these alleged instructions to be quite strange and in discord with the information which was available to the applicants at the time. However, notwithstanding our view in this regard we accept that according to the counter-revolutionary strategy, which was in place in the South African Police at the time, the applicants intended to act pre-emptively by preventing, through elimination, any persons intending to undergo military training". And that would be the answer to Commissioner Gcabashe's question. "The objective thereof was to prevent trained activists from returning into the country to advance a struggle which was being waged by the liberation movements against the government. The applicants contended that they could not wait for trained terrorists to enter the country and perpetrate acts aimed at overthrowing the government, hence the reason to act pre-emptively". And then the last sentence at page 13 says this: "Shocking and gruesome as the killings of the young activists was it is undisputed that they were in the course of the conflict of the past when the security forces went to any length to implement their counter-revolutionary strategy". Amnesty was granted. That was in the case of the Nietverdiendt Ten. CHAIRPERSON Yes, I am sorry to interrupt you, that might be so, I am not sure about the details of that thing. We are debating the proportionality requirement. Did they address that there? I mean that's really our debate now. I want to hear you on what level these four people were and whether killing them would be justified, proportional, in the particular circumstances. That's really the debate. So I don't know whether that helps on the proportionality question. MR VISSER The only reference is that the Committee found that on that evidence the requirements of the Act were satisfied, all of them. CHAIRPERSON Have they applied their minds to the question of proportionality? If they haven't then of course you know it doesn't help us at all. MR VISSER Well Chairperson there is nothing to indicate that they did not apply their minds to it. CHAIRPERSON How? They don't seem to be debating the question of proportionality. It seems to be a summary of the evidence and a bold conclusion. MR VISSER Yes, well Chairperson I hear what you say. May I refer you to Hechter's decision at page 6 of his amnesty decision. That dealt with the murder of nine KwaNdebele people and here the Amnesty Committee said this "Hechter contacted the other persons involved and informed them that a number of youths were on the verge of leaving the country for military training. It transpired that during the preceding weeks these youths had gathered around Mamasela, who was parading as an ANC activist at the time. Mamasela in fact gave them limited military training. According to him they were eager to receive training. They would leave the country, receive training and thereafter would return to the country as trained soldiers to continue the struggle". Exactly the evidence which Mr Musi gave. "Hechter felt convinced that the only way to prevent this was to eliminate them. Previous efforts to persuade the youths..." as in this case - "...not to leave the country for military training and then to return to the country as fully trained and dangerous cadres failed". In the third paragraph at page 7 - "The incident falls within the ambit of the Act and that the requirements for the granting of amnesty were met". says the Amnesty Committee. CHAIRPERSON Yes it looks like it is a similar situation. It doesn't help us very much to be referring to all these things which don't really form a precedent for us. I mean we at large, my panel and I, are at large to consider this matter before us in the light of the particular circumstances of this particular and we are debating the question of proportionality. So perhaps you should debate it on the facts before us, the circumstances. Perhaps it doesn't help us very much, we don't know whether in those cases, those intended sort-of people who intended leaving the country had the wherewithal to do so; whether there were clear indications that they would pose a danger and so forth and so on. So it doesn't help us very much if we don't have those circumstances before us. Perhaps we should then limit ourselves to what we have before us. MR VISSER Chairperson, thank you. The submission I wish to make is we cannot close our eyes to the amnesty decisions for many reasons. The obvious one is that there should be fair administrative action between all the applicants who appear before the Amnesty Committee. The one applicant should not feel that if they walk into the doors before one Committee they will receive a different deal than before another. That's one issue. But you are quite right, let's come down to the facts of this matter. If you look at the Nietverdiendt Ten and the KwaNdebele Nine, and you look at the evidence which the Amnesty Committee used in order to come to the decision that amnesty be granted, here you have, from the horse's mouth, so to speak, Mr Musi who tells you that that's what he was going to do. He was going to receive military training which he was going to apply in the struggle. CHAIRPERSON Yes he was trying to do that. Did he have the wherewithal? How realistic was that prospect? Those are the kind of questions, to my mind, that comes in to the enquiry into the proportionality. So you know what we have on the evidence is one person who comes to Mfalapitsa and says look you know I've got three other friends, we would like to go into exile and get military training. He would probably have heard that kind of conversation every day in the townships at that time. Where does it take us? MR VISSER Well let us ask that question of the typical member of the security police at the time. What would you have done had you obtained this information, what would you have done? Would you have done nothing? The point is they wouldn't have done nothing because it was their duty to maintain law and order in terms of internal security and to protect the interests of the government and the state. CHAIRPERSON Would you have killed them Mr Visser? Would you have killed them if they express that intention? That's the question. MR VISSER Chairperson how does the policeman who hears this evidence know how competent or incompetent their threats are? How does he know? CHAIRPERSON You investigate and that's why we raised this question about the time lapse with you. Within a week this whole thing is wrapped up and done, three young children killed and another one almost killed. Within a week. Now what sort of enquiry has gone into that one? To what extent have the police applied their minds to the matter? To what extent have they satisfied themselves that they've got the true facts in front of them? Those are the questions that concern us. And it comes into the issue of proportionality, and that's why I raise it with you. MR VISSER Yes Chairperson, I must say it's confusing to hear you talk about young children all the time. I have never regarded a person of 18 years old as a young child. And may I say, with respect, Mr Chairperson, that a young child of eight years old with an AK47 in his hands will kill you just as dead as a 50 year-old person. And in fact all over the world armies are made up of persons between the ages of 16 and 24 years-old. CHAIRPERSON Yes, yes Mr Visser that's not a very material question. We might see this from totally different backgrounds, but that's the term that I use. We know what the ages are. We know what their situation is. So not very much turns on that. We look at the facts of the matter. MR VISSER Well Chairperson here were four people who professed their intention to participate in the armed struggle and the people on the level of the Security Police decided that there was no other way out. They knew they had to protect the lives and property of both Nkosi as well as Mfalapitsa. On the evidence of Mr Musi there was also the issue of the black town councillor, and with respect Mr Chairperson, that goes much, much further than the decisions in the Nietverdiendt Ten and the KwaNdebele Nine. And I respectfully submit that the argument that there were also others who could have been eliminated, takes the matter no further. That wasn't part of the considerations. That wasn't part of what was discussed. What was discussed was the imminent threat and the increase in the revolutionary climate and that is what the evidence before you was ...(intervention) CHAIRPERSON Sorry to interrupt you Mr Visser. We haven't raised it in evidence. Is there any indication why they didn't kill Musi, subsequently? MR VISSER No that was never investigated. What I attempted to investigate was the position of what happened to Mr Musi viewed from the point of view that he wasn't killed. And that could possibly have given us the answer to some of the questions which have been raised now, because we know from - I started putting it to him that he was convicted of possession of explosive in 1986. CHAIRPERSON When he was 22 years old, or 23. MR VISSER And who knows what he did with it in the time between 1982 and 1986. CHAIRPERSON Yes but if he was such a threat why didn't you guys go and kill him? He was in the hospital, why didn't they go and kill him there? MR VISSER Well Chairperson I ...(intervention) CHAIRPERSON They had the wherewithal to do it. MR VISSER I didn't investigate that. I didn't investigate that with them and that wasn't asked of them. I don't know what the answer would have been. CHAIRPERSON Yes. MR VISSER Chairperson in my respectful view therefore, if you compare and again I say that one has to compare these matters in order to find some sort of balance. If you compare the conduct of the present applicants and what they did on a basis of proportionality with what has happened in this country, the St James Massacre; the killing of Amy Biehl for example; the Church Street bomb; the Krugersdorp bomb; the Wimpy bar bombs; the Magoo bomb, if the argument is that all of those matters are disproportional well then Chairperson with all due respect then the Act and the Interim Constitution will never succeed in attaining the purpose which it set out to do. For those reasons which we've debated and which I've submitted to you Chairperson I respectfully submit that in the present case the Act was imminently proportional to the objective which they sought to achieve. Chairperson I don't believe that there is anything left on the evidence which I still have to address unless there is something which I have missed. Yes, the matter of credibility my attorney just reminds me of, but I believe I have dealt with Mr Musi to some extent as far as it is necessary. I am not saying everything he testified to must be rejected, but certainly he had a reason not to give full and frank evidence, and that reason is to protect himself. Mr Mfalapitsa, I am very pleased I am not a member of his church to have to listen to him every Sunday, but Mr Mfalapitsa gave the impression, we submit, of a person who was trying to remember and when one looks at evidence of so long ago one would be mistaken to look only at the detail and not take account of the broader picture. And the point here is that there is nothing to indicate that training was not discussed by Mr Musi with Mr Mfalapitsa. That's got to be correct, because in fact I can almost say it's common cause that Mr Musi did talk to Mr Mfalapitsa about training. ADV DE JAGER Where do they really differ, the applicants from each other? In what material respects does Mr Mfalapitsa's evidence differ from the evidence of Coetzee? MR VISSER Only in one possible respect which I have already mentioned Chairperson, and that is whether or not, and I am not even sure it's a difference, whether or not the intention or the desire by the four Cosas members to go out for training was conveyed to Coetzee or not. It's not really a dispute in the sense that Coetzee simply says he can't remember, it's possible. And then the second, I don't think it's material Chairperson, but I am not here to think, the other aspect is when the sketch plan was first shown to Mr Mfalapitsa - earlier than or on the day of the incident. It really takes the matter no further Chairperson but I must submit that on the probabilities, as was put by Commissioner de Jager, one must accept that Mfalapitsa is wrong, that it couldn't have been on that evening because otherwise there's no explanation as to how Brigadier Schoon could have known about it. And he remembers that, that it was mentioned. Chairperson I would ask you to grant amnesty to the three applicants, Schoon, Coetzee and Grobbelaar for the following: If you turned to Exhibit B, in paragraph 1, I attempted to deal with the various offences or delicts. May I first of all refer to the question of the identity of the three Cosas members, Mr Madikela, Mathabane and Mhlapo. For obvious reasons the applicants for whom I appear have no way of confirming that these were the identities of those persons. We have had this problem before Chairperson and it seems to have resolved itself if the Amnesty Committee in the case as this, would say that amnesty is granted in regard to these three persons and just make some provision to say that if these are not the identities then the three persons involved in this particular incident, then there's no problem. So that any person can say well it went wider than what was intended in these hearings. CHAIRPERSON Did Mr Musi identify the three? I can't remember. MR VISSER I think he did, yes, I think he did. It's fairly safe in the present case to accept that these were the people. CHAIRPERSON Yes, but no I follow your point about the identification. MR VISSER Yes, thank you Chairperson. Well if I may, I might fall down trying to translate all the various terms, if I could address you in Afrikaans then. CHAIRPERSON Yes. MR VISSER The first one Chairperson would be conspiracy to murder and the murder of the three Cosas members. Two, would be attempted murder or any lesser offence emanating from Zandile Musi's injuries. Then under (B), transgression of statutory stipulations with regard to illegal handling of explosives and illegal firearms and ammunition. Purposeful damage to property. That would be with regard to the building on the mine. Possible benefits with regard to this Chairperson, and then obstruction of justice, because the person did not disclose the true facts. We then also request for any other offence or delict which was committed by the applicants which emanates from the evidence regarding the incident. The reason why that clause has been inserted is because it is sometimes problematic to profitise or calculate beforehand what the limitations of the amnesty which you would grant could be with regard to this crime which was committed on the 15th of February 1982 at the mine, and where these persons were identified but there should be no problem. CHAIRPERSON Is this the mine in Krugersdorp? MR VISSER Chairperson I don't recall the name of the mine but I must tell you that I did ask Mr Coetzee. It is a mine between Randfontein and Krugersdorp, if you know that part of the world. If you are driving from Krugersdorp just past the drive-in there is a small mine on the left-hand side. One can see it as one drives past. A small shaft. It has been standing there for a number of years. What exactly it is I am not sure. Some people have said they think it is Luipaardsvlei, but I am not sure about that. CHAIRPERSON Would that be between Krugersdorp and Randfontein? MR VISSER Yes. I have nothing further to add. Thank you for hearing my heads of argument and for your indulgence. Hopefully next time I present heads of argument to you I shall not be as lengthy. CHAIRPERSON Thank you. Ms van der Walt. MRS VAN DER WALT IN ARGUMENT Thank you Chairperson. I would like to thank Mr Visser for his heads of argument as well as the documents of heads of argument that he submitted in the sense that I will not have to repeat it. Then I ask that with regard to the background, as well as the legal aspects, you incorporate this with regard to my client Mr Rorich's argument, if you would. Regarding Mr Rorich I would like to point out to you that his application differs from the other applications which have been served before you in the aspect that Mr Rorich was not involved regarding the Cosas Four, as they have been named here. He did not know Mr Mfalapitsa at all so he will not know what negotiations took place. He didn't even have the names of the persons. Furthermore he did not know how many people would be there. The order which was conveyed to him by Mr Coetzee, and this was pertinently stated in his application, was that they were activists and that was the word that was used, "activists" who were going to receive military training. He received the order from Mr Coetzee. Mr Coetzee's evidence is that he approached Mr Rorich because he regarded Mr Rorich as the most competent person to execute this order and also that he trusted him. Questions were posed to Mr Rorich, but not in depth neither to Mr Coetzee or Mr Schoon, with regard to why Mr Rorich's commander was not informed. Mr Rorich admitted clearly that this was the type of operation which had to be executed on a need-to-basis. He regarded this exercise as an order which came from Brigadier Schoon and he accepted that this was an order from the Security head office. He made a full disclosure to you of exactly what he did at the mine. He planted the explosive device there. He and Mr Coetzee waited at a ruin for Mr Mfalapitsa, who he didn't know, but they were waiting for a person who would come out and say 'everything is ready'. There has also been evidence that Mr Coetzee was in radio contact to ensure that there were no other persons there. He detonated the explosive device, he left the scene, and furthermore he knows nothing of the background or anything other about these persons. He did indeed mention that he confirms the political struggle in which the country found itself at that stage and he testified pertinently that within this struggle he believed bona fide that his action was proportional to his duties as a policeman and the execution of his duties as he was authorised to do. On this point I would like to indicate to you and I would like to argue that Mr Rorich perhaps differs in his application to the others as I have listened to the heads of argument and your questions with regard to Section 22(b). I would like to submit that in his evidence it was clear that he acted under the orders of Coetzee but more under the orders of head office, and it was in that context that he carried out this order. He testified that he knew that it wasn't a legal action because to kill people is not legal, however he maintained that during the struggle of that time he felt, and he believed. And then I would like to put it to you that as Section 22(f) determines he believed with reasonable grounds that his actions fell within the ambit and course of his duties. I would like to submit to you that he fulfils the requirements of the Act in terms of Section 21(c) in that he has made a full disclosure of relevant facts. He has even told you that he performed the task; that he does not know why he was selected to do so, but that he was not afraid to do this because he did this within the struggle that the Security Police and the government of the day were involved. He expressed it as such that he did this for his "volk and vaderland". CHAIRPERSON That's correct. Now what is his situation with regard to the evidence before us, he said that this was an order which he could have refused to execute and then later he testified that he was not afraid to do so, it was not a situation in which he was given an order to execute mechanically. It was as if he had convinced himself that this was something which had to be done in the name of the "volk". MS VAN DER WALT That is correct. I would like to submit to you that under the circumstances if there was an illegal order which was given to any police officer he could have refused. I am sure that any application which appears to you does include the idea of people being able to refuse if they so wished. However, if I might use the word "indoctrination", the indoctrination which prevailed throughout the national government and the situation within which the Security Police found themselves contributed to these policemen believing that they were in a struggle and believing that what they did was right. I am sure that people may refuse if they are given an order to kill, however, they knew what the situation was like in the country. It was a revolutionary onslaught against the former government. And the police were trained, and you will also see in his application that he was a member of the National Party as well as a supporter of the National Party, and he believed. ADV DE JAGER In this case he acted clearly as a policeman, the facts that he was a member is not significant. He was picked up in a police vehicle, it was a state vehicle, it was not a National Party vehicle, so I don't think that you would be able to argue that he acted here in his capacity as a member or supporter of the National Party. MS VAN DER WALT That is correct. Perhaps I have expressed myself incorrectly. The National Party, at that stage, was the ruling party and what I am trying to convey is that the police in their conduct, and if I may say this, they had to maintain the government of the day and that is why they had to combat this revolutionary struggle which was aimed against the government of the day at all costs. After he gave the evidence during which he said that he exercised the choice because he did this for his "volk and vaderland", he did this in order to protect the government of the day and to maintain that government. If that answers your question Chairperson. ADV GCABASHE Mrs van der Walt just take me back a step. You are saying he acted both as a policeman and as a supporter of the government and its policies. Just go over that again. MS VAN DER WALT The government of the day, the National Party, he was in the service of that government and as a policeman he had to invest everything in the struggle to maintain that government. And that is why I say that he acted as a policeman but with the objective of combating the struggle in which the country was involved, because that struggle was aimed against the government of the day. And in his conduct as a policeman he automatically supported the government in order to maintain that government. ADV GCABASHE Yes you see because my difficulty again is the same as the Chairman's where he knew that he could have refused to do this particular act and yet he goes out of his way, in a sense, to agree to doing something that he knows very well does not fit in with his normal duties, something that has not been authorised by his immediate commander, something his commander does not even know about. So it says to me this is something that he knew very well was not anything that would directly have anything to do with his duties as a policeman, and that's why I ask you was he acting as a policeman, because my own conclusion is that - I am still thinking this through obviously, he could not have been because he was not even acting within the structures of his own unit. Just help me through that one. CHAIRPERSON So in other words is there bona fide, can he then say that he acted in a bona fide manner? MS VAN DER WALT I would like to argue that he could have because he believed, and it was conveyed to him that this order came from the Security Police headquarters. It was not as if every division of the police acted separately. There was indeed, according to the evidence, a Security head office that presided over all these divisions of the Security Police and whether his immediate head knew about it or not is not relevant under these circumstances. And that is my argument. Because an illegal act was being committed, this was not part of the normal legal police process during which they would arrest a person. As little as possible people had to know about this because the option which they had there at the mine had to make the police who would investigate the scene of this incident believe that these persons had blown themselves up. One couldn't tell everybody in the police force that they had done it because it was an illegal act and that is why we are here today. I would like to argue that according to his evidence that he said that he believed, bona fide, that this was part of the execution of his duties regarding the combating of the revolutionary struggle. ADV GCABASHE You see I think for instance of the Kondile matter where he was moved from the Eastern Cape through to the Northern Transvaal of the time, the Ermelo district anyway, and Dirk Coetzee made sure that he informed the commander in that area that they were coming to operate there. And this is the way I understood things would normally happen. After all Schoon was a Vlakplaas man and when you go and operate in a different area you at least inform the people that you are going to operate there. And correct me if I am wrong, I would assume that if you are going to use an operative from a particular area you would at least again inform those people in that area that you are going to do that. So an individual who does something that is not authorised, even though it's an illegal order, that's not authorised by his immediate command structure, seems to be out of sync in a sense with what my understanding is of the broad manner in which the Security Branch operatives .... MS VAN DER WALT I don't think that there should be a generalisation of what Mr Coetzee has said. I don't know what the background is, but if I understand you correctly they went from one division to another in order to commit certain acts there, and whoever it was that informed them there had to have been a confidante, if I can draw this inference, because once again it was an illegal deed. And once again as the Chairperson has said, we cannot draw a similarity, according to his suggestion, between this case and the other nine persons, but here we have a difference. I would like to put it to you, it is not that there was something that was going to be done in another division. An expert was taken from a division and he was taken specially and that was the evidence of Mr Coetzee. And it was never "aangeval nie" - that they went to fetch Mr Rorich because he was an expert. I don't think it would be correct to place this at Mr Rorich's door as to why his commander was not informed because he received an order from head office, as he believed, from Mr Schoon, through the then Captain Coetzee who was his senior, who went to fetch him in order to execute a task as an expert, not within the division where these three or four persons were. "Ek dink daar is 'n verskil". ADV GCABASHE Yes I am actually looking at Rorich's own reaction, what he then did. Never mind what he was told by Mr Coetzee, but how he then reacted and the choices he had at the time, and that's really what I am looking at. He had certain choices and when he took a particular course of action did he really have to do that, one? And was he acting as a policeman as he took that particular course of action? That's really what I was trying to get a bit of clarity on. MS VAN DER WALT I think his evidence is very clear in that regard. I think that he was honest towards the Committee by saying that he did have a choice, but that he, as a police officer, regarded it, firstly, and this is clear at the end of his evidence, he said he regarded it as the protection and maintenance of the former government's dispensation and he believed that that action was taken in the execution of his duties. ADV DE JAGER Thus a policeman always has a choice, he has a choice to disobey an illegal order. He could say I am not going to do this and that would be correct. He had a choice to disobey a legitimate order and carry the consequences thereof because departmental action could be taken against him. However, nobody was coerced to obey an order. It was never a question of life or death that you had to obey an order. However if you were a member of the force it was your duty to obey a legitimate order. However, all the police officers who were involved in all of these cases had the right to refuse because they were illegitimate orders. MS VAN DER WALT That is exactly what my argument was from the beginning. Every single one who has given evidence before the Committee had that choice, however, as history has taught us and the political background and circumstances of that time alleged to these persons regarding themselves as policemen who would make the sacrifice and who would commit the deed because if everybody had to have made the right choice then the other side would have won the war at that stage already, and that is what Mr Rorich has said very clearly to you. It was a war situation and that is why he made that choice. He said that within that war situation I did this for my "volk and vaderland". CHAIRPERSON How bona fide was it if he did not even inform his own commander, how bona fide could he have been? MS VAN DER WALT He also informed you that this sort of operation, and it was also put to him whether he was involved in other operations and he answered in the affirmative he said that as little as possible people would know about the operation. However he believed that what he was doing came from head office which was the overall command structure of all the different divisions of the Security Branch. CHAIRPERSON Wasn't it because he knew that this action was completely outside the ambit of that which the police regarded as acceptable and for that reason he did not tell his own commando. He told us that he decided alone not to tell his commander. Coetzee didn't tell him not to tell his commander. It was his own decision. MS VAN DER WALT Well what he said there and directly after that was that as little as possible people had to know. I don't wish to argue - you have said that this was not the normal police process of conduct, it could never have been the normal pattern of conduct because to kill people with explosives, however it was done throughout the country. He was not the first and the only person who did this. ADV DE JAGER Do we know whether his commander knew or not? We know that he didn't tell him, he didn't tell him and that is all. But now we have a high-ranking officer from another division who comes to fetch him, at his division in Ermelo, he is away for a day, we don't know whether his commander knew, whether his commander was informed or not. There is no evidence about that, and apparently no action was ever taken against him because he left his duties for a day. MS VAN DER WALT Yes that is a fact. What I would like to submit to you as well is that it was never taken up with Brigadier Schoon or Mr Coetzee. Mr Coetzee maintains that he fetched him under the orders of head office. What happened between head office and his division is unknown to us and that is also what Mr Rorich does not know. He acted on an order and he did not inform his commander because he knew that this type of operation had to remain unknown to as many people as possible. CHAIRPERSON It doesn't matter who else did what, what the head office did or what they didn't do or whether or not his commander knew, the question of bona fide is about his own state of mind, and the question is, is it not indicative the fact that he didn't personally inform his commander, does this not indicate a state of mind that realised that this was completely unacceptable within the set-up of the police given the fact that many unproportional acts were committed but this one was completely out of bounds. MS VAN DER WALT With respect I would like to differ because he testified that he received an order from Mr Coetzee but that he would not simply accept Mr Coetzee's words, he received the order from Mr Coetzee that this came from Mr Schoon and he accepted that this came from head office. And I would like to submit to you that this proves his bona fide because he would not have done this if a warrant officer had told him to do this. And I want you to incorporate this into his evidence, he would not only accept what Mr Coetzee told him, in his application, and his application is completely separate to the applications of the other applicants, in his application he states that this order came from Mr Coetzee via Mr Schoon, and he testified here that he accepted that this order came from head office. CHAIRPERSON That was his evidence but isn't that all the more reason he accepted that there was nothing wrong with the order that he received and that there was nothing wrong with the general set-up of the operation apart from the fact that it was illegal, isn't that all the more reason why he would tell his commander listen I am going with Coetzee, we are going to a place and we are taking explosives and we are going to blow up this place? There was nothing to hide. MS VAN DER WALT With respect I have to differ from you because he has stated that what he did was a crime. If he had gone to arrest people at a roadblock I would be able to understand this, but to go and kill people with explosives could never be told to everybody openly because it was a crime, but he acted on the order which he believed came from head office. CHAIRPERSON Yes I understand you, he couldn't tell everybody, that wouldn't make any sense, but what about his commander? If he was so convinced that this was an order from head office then everything would be kosher, there would be nothing wrong with that. Why didn't he tell his commander? This was someone from the Security Branch, not someone from the Commercial Branch who would cause trouble. MS VAN DER WALT Once again if a police officer received an order of this nature from head office, directly from a captain who was his senior, who came to fetch him, I would like to believe, according to his evidence, that he had to remain silent. Why didn't Mr Coetzee not go to his commander then? That was the objective I would like to submit to you, that as little people as possible had to know, and that is what Mr Rorich believed. I believe that if I have to follow your argument it does not make sense that as few people as possible were to know if he went to his commander, because head office could just as well have informed his commander. It was the choice of head office to perform this operation according to this line, and that was his order. CHAIRPERSON Yes I follow what you are saying but this is separate to the normal situation when colleagues from another office are brought in. Coetzee didn't tell him to tell his commander or not to tell his commander, he simply said to him - "listen Schoon has given me an order to blow up these persons, I want you to help me". And he left it at that. He didn't tell him - "look don't tell anybody, don't even tell your commander". And nobody told him not to do that, and he didn't do it, he didn't tell his commander. So the question originates was he really to be trusted under those circumstances? MS VAN DER WALT He also said that that was not the first time that he had been involved in such operations and he knew that when he received such an order he would receive that order and he didn't have anything further to say about it. CHAIRPERSON Did you say that that was not the first time that he had received an order as such from another office? MS VAN DER WALT He simply said that that was not the first time that he had received such an order. I would not be able to elaborate on that because that was his evidence and I don't want to say what I know, I simply want to say what he testified. I would also like to add that he did fulfil Section 22(a) and more specifically (b) as well as Section 22(f). Thank you. CHAIRPERSON I beg your pardon Ma'am I would just like to ask you the following. Just suppose that the action was disproportionate does that have any effect on the situation of your client? Would he still qualify for amnesty regarding his special circumstances? MS VAN DER WALT Yes I omitted that. Should you find that this is not the case with the others who have applied, I would like to submit to you that Mr Rorich's application differs in the respect that for him it was said that these were "activists" who were going to receive military training. He did not know who they were; he did not know how many persons there were; what he realised and what he knew was that these were activists and that activists to him as a Security policeman posed a great danger and he went ahead and executed the operation. Because he was not aware of the background his application differs in that regard. ADV DE JAGER Yes, and he was also not the person who had to take the decision to eliminate these persons or not. So he did not have those considerations. He simply acted with regard to the order after the decision had been made. MS VAN DER WALT Yes, and that was also his evidence that he did not have any knowledge and that he was also not concerned with the decision-making process. I would like to submit to you that in his case there should be a different consideration, one that differs from your consideration for the other applicants. CHAIRPERSON Thank you Ma'am. Mr Jansen. MR JANSEN IN ARGUMENT Thank you Chairperson, members of the Committee. I will be dealing with all the various requirements of the Act, but with most of them very briefly. My argument will mainly centre around the two issues which I believe may be contentious in Mr Mfalapitsa's application and that is of course firstly, the facts or discrepancies or conflicts of evidence between him and Musi on the one hand, and him and the other applicants on the other hand, specifically Mr Coetzee. That being the factual, the one aspect of my argument. The other one I will be dealing to some extent with the issue of how to properly deal with the political motive of somebody who finds themselves, or him or herself in the position of an askari. In other words somebody whose political motive is not so immediately apparent at first sight. ADV DE JAGER Is it not the fact whether on the evidence whether he proved that he's got locus standi to be an applicant in terms of one of the subsections of subsection 2? MR JANSEN Yes. ADV DE JAGER Thanks. MR JANSEN Sorry, yes Advocate de Jager obviously in the process of going through my argument I will obviously have to deal with the structure of the Act and exactly which are absolute requirements and which are as it were, I am not saying relative requirements, but requirements which are not necessarily a disqualification if they are not met. I have to start off by just dealing with Section 20(1)(a) the requirements of the Act because there was a problem that was also brought to our attention by the TRC personnel and that relates to his affidavit and the way it was attested to. There was that confusion that it may have been himself attesting to his own affidavit. It was his wife in fact and she is apparently also an ordained minister. So on the face of it, it is valid and there is no other reason to suggest that it's not. In any event it was again subsequently confirmed, on affidavit, and here again orally. So I believe that sub, sub (a) has been met. Now Mr Chairman if I could then leave sub sub (b) for later because that will be dealing with really the requirements of subsection (2) and subsection (3) and then just deal with the facts which I believe, if it affects Mr Mfalapitsa's application it affects the issue of full disclosure. Now there are, I mean we've all listened to the evidence and I think we are well aware of the discrepancies. Mr Chairman I just apologise this bench or this desk of mine has a bit of bump in it and it keeps on making this noise. I will try and avoid it. Firstly I think one must accept that obviously there are in fact three versions and these three versions in certain instances corroborate each other but in other instances they contradict each other. Now one must have a look, with respect, at which contradictions are material and cannot really be explained away, if there are such contradictions. And before one looks at that Mr Chairman, I believe it is extremely important to consider the fact that this incident occurred, the time lapse since the incident and the testimony here more so than one would normally in dealing with evidence in - I mean in a certain sense we all know that as lawyers that when assessing evidence there are certain rules and one of the rules are that one must consider things like a person's failure of memory and some people having better memories than others and we must consider inherent probabilities or improbabilities and the lapse of time, but in these type of cases Mr Chairman the problem is specifically acute. Firstly, because of the extreme long lapse of time ...(intervention) ADV DE JAGER (Not talking into the microphone. MR JANSEN Yes, precisely. And the other problem, Mr Chairman, is that the people that were involved in the incidents, especially the perpetrators, must at some stage in their life have reached, or fairly shortly, maybe a year or two after this incident, certainly have been of the impression, or certainly of the intent, never to testify about these incidents. They could never have foreseen that at some stage such in-depth enquiry into these facts would occur. It's different at the time of the incident that they know that we might have to be ready with a dekstorie or we might have to prepare ourselves for an death inquest or something to that effect. But after some lapse of time that sort-of making sure that one reminds oneself of the facts must have disappeared. And then to add on to this acuteness of this problem is the further complication Mr Chairman that these people were involved in, most of them, in many incidents over a long period of time, and that makes it a completely different situation as one might say is the situation when one is dealing with evidence relating to a single motor accident or a single murder case that happened two years ago or three years ago. The problem compounds itself so badly, Mr Chairman, that what happens is, and if one has the normal approach of looking at probabilities and what is in one's experience what is acceptable reconstruction of events and simple, let's say, fictitious reconstruction without there being some motive with it, is what happens is what happened in the Harms Commission. There was this sort-of, well again also a battery of lawyers and this intense memory games being played with witnesses and what happens at the end of the day is there are so many discrepancies which to one's normal experience just does not seem to be explicable, but which then at that stage it becomes very easy to say but this is just clear nonsense because contradictions obviously is the one sign that one looks for to see whether somebody is lying. When people are lying they start falling into contradictions. But the problem is we know that there are other reasons for contradictions. I believe that in assessing these kind of incidents one has to be especially acutely aware of this. Now I know I am dwelling on that to some extent Mr Chairman but I believe that one of the reasons why, for instance something like the Harms Commission or those type of inquiries failed is precisely because they were not aware of the amount of scope that one must actually give in these instances ...(intervention) CHAIRPERSON Wasn't it also that some of these people were just lying, they were just misleading this Commission? MR JANSEN Yes, yes, certainly, there one had the wall of denial. But if one looks at the Harms Commission the rejection of the evidence implicating the state in these extra-judicial executions was - well there are these wall of denials, it's obviously difficult to reject a denial because it's a simple denial. Let's look at the positive evidence and the problem was the positive evidence has all these discrepancies and they were serious and they were many, and that's the idea I am trying to get across, is that the approach in the evidence, that sort of caution that one sometimes has, must be - it must almost be a different exercise that you ...(intervention) CHAIRPERSON Yes I am not criticising the point that you are making. I am with you on that point. I am just, perhaps I am just expressing a bit of a difference of opinion on the - the Harms Commission is perhaps not the best example that you could have used. But I've got the submission, ja. MR JANSEN Now Mr Chairman having said that now let us get to the facts of this case. Coetzee has contact with Mfalapitsa and Mfalapitsa has contact with Musi. Those are the main positions or the main areas to be investigated, those communications between those three people. Any other communications further than that Coetzee had higher up cannot possibly reflect on either Mfalapitsa or Musi because it's double hearsay and it's too far removed. And again applying a fairly simple rule of hearsay it's difficult to reflect on Musi's credibility on the basis of what Coetzee says. But it's difficult, the converse, being that it's - one should be careful to reflect on Coetzee on the basis of what Musi says. And obviously I am, and Mr Mfalapitsa is the person who has the most problems in that regard because he must, as it were, look at both sides ...(intervention) ADV DE JAGER He could be contradicted by both, and the others could only be contradicted by one. MR JANSEN Correct, and obviously I foresee that the allegation is going to be made that - well in fact what he did was is he misrepresented to Coetzee what Musi had told him and I will get to that. Now there are two possibilities when approaching Mr Mfalapitsa's evidence. The one is that the evidence that there was an intended attack or an intended plan to attack Nkosi and Matsidiso is a recent fabrication was made for purposes of his amnesty application for the obvious reason that it fits so nicely and snugly in the proportionality problem. In other words here's one life or two lives at stake, that is proportional to another person's life. Now that argument, Mr Chairman, can with respect be rejected quite easily, I respectfully submit and almost out of hand, because it cannot be gainsaid that Mfalapitsa was unrepresented and without any contact with his colleagues at the time that he drafted his application. And for all these people to have independently thought up the same lie to fit their little proportionality problems is just not possible. In other words they think of Nkosi ...(intervention) ADV GCABASHE Mr Jansen can I just stop you there. But you see one of the difficulties is Mr Coetzee does not recall the Matsidiso matter at all, that Matsidiso was mentioned at all. And Mr Musi states as a certainty in his evidence that he does not even know Mr Matsidiso. So we really have your client talking about Matsidiso. Then of course there are the contradictions relating to Nkosi, but I really wanted to highlight the Matsidiso matter. MR JANSEN Yes, no thank you and I will be dealing with both the issues as far as Matsidiso and the knowledge of either my client or Musi, on the other hand. But the interesting thing of the versions that were now prepared for purposes of the TRC, Mr Chairman, and what shows at the truthfulness of these versions, in other words the Mfalapitsa version and the Coetzee version is this. There's precisely this discrepancy relating to Matsidiso. It is quite natural for Mr Coetzee to have forgotten the Matsidiso angle or aspect of the evidence because he didn't know, he didn't know Matsidiso, or one assumes that he certainly didn't know him to the extent that he knew his colleague, Mr Nkosi. It's quite natural that his main concern at the time would have been his colleague Nkosi, and that that is what stuck in his mind. But Mr Mfalapitsa again it would appear did not know Mr Nkosi at that stage, but he would remember the Matsidiso part of the evidence because he knew Mr Matsidiso. That would have rung bells and would have generated associations with him because it was a person that he knew as a teacher at a school that he attended and that one assumes he knew was a councillor. So those probabilities that it is a recent fabrication, Mr Chairman, must be rejected. This leaves us then with the second issue to be dealt with, in other words the possibility that Mfalapitsa misrepresented to Coetzee what Musi had told him which is also the explanation which Mr Musi said is his explanation for this discrepancy between them. Now the first problem with that Mr Chairman is that one would have to accept that Mr Mfalapitsa was a particularly twisted individual to go and misrepresent the information which he had received not knowing what the police may want this information for; not knowing what their intentions may be. And secondly, Mr Chairman, the presence of Mr Nkosi in that story. How would Mr Mfalapitsa have known which policeman was coincidentally also the policeman doing the inquiries or seems to have been doing the observations of the Musi family's house? There is no evidence even to suggest that he knew Mr Nkosi. There is no evidence to suggest that he was told by anybody in the Musi family about Mr Nkosi. So any possible argument in that regard and where he could possibly have known of the identity of Mr Nkosi in February 1982 is pure conjecture. And opposed to this problem of trying to impute a lie or a misrepresentation to Mr Mfalapitsa, on the other hand it is a lot easier, with respect, to explain the denial by Mr Musi of this part of the evidence. Mr Musi is, with respect, trying to give his position as a victim a gloss. He is trying to colour what the actual situation was. Now I would even concede that one must not, if one looks at Musi's evidence in isolation for the moment without comparing it to Mfalapitsa, one mustn't or one cannot really just accept that there is some inherent reason for him to want to gloss over certain parts ...(intervention) ADV DE JAGER Mr Jansen why would you say he's colouring the situation? MR JANSEN Well Mr Chairman I have thought of a few possibilities and I agree that they are not so obvious that one can point to them and say look, that is clearly why he is lying. It is true and one - but the one of course is just that he's now confronted with the situation where he must admit his involvement in criminal activity where he has not - where he may not want to do so. That is a submission Mr Visser made. But again I accept that that is a general proposition and it's almost comparable to the proposition as to why an accused would lie. And an accused would lie because he's in trouble and he must get out of trouble. But it's not something that one can completely leave out of the picture, because it's a possibility that one must deal with. The other reason, Mr Chairman, is that he's, with respect, quite well aware of the fact that he's opposing the evidence and the application of Mr Mfalapitsa and he knows, and it's quite simple, what the central, as it were, the central justification or the central part of that evidence in respect of Mr Musi was, that they were planning to attack or assassinate either a policeman or a councillor or both. In other words purely as a way of effectively or an attempt to effectively deny that part of the evidence would assist in achieving the goal of denying amnesty to ...(intervention) CHAIRPERSON Mr Jansen when were these victims mentioned for the first time between Mfalapitsa and Musi? MR JANSEN Sorry Mr Chairman, when was which victims? CHAIRPERSON These two, Nkosi and this councillor, when were they mentioned for the first time between Musi and Mfalapitsa? MR JANSEN Yes, let me get to that part of this problem of dealing with the credibility of Musi on the one hand and Mfalapitsa on the other hand and ...(intervention) CHAIRPERSON Yes, no, no, don't let me take you out of the - if they are a later part of your submission don't let me take you out of the sort-of stride of things. Carry on where you were and then deal with it when you are at that point. I don't want to take you out. MR JANSEN No what I may tell you at this stage is that I believe it to have been at - (long pause) CHAIRPERSON We are just thinking of a logistical thing that's affecting our sensitive eyes here. We just wanted to find out whether it is strictly necessary still to have these lights on, but I suppose the video people will tell us. Fortunately this time it's from our back but of course it's in your faces. We normally share it, but in this case it is slightly from the back but it's still affecting us. I don't know whether there is - there is not even - oh I see, okay. (Recording stops) Sorry Mr Jansen we have interrupted you but that matter will get attention, you carry on. MR JANSEN Thank you Mr Chairman. Mr Chairman to answer your question I believe, and I will deal with this in argument, that on the probabilities and as a definite possibility or as one of the probabilities is that the names of Nkosi and them were probably dealt with on the second meeting or then a third meeting if one allows for the possibility of their having been more than just three meetings, possibly another meeting. And let us start with the chronology, and again Mr Chairman if one is looking to reconstruct the chronology in a neat and tidy way, as I dealt with in the beginning one is going to be in trouble and one is going to probably make a mistake. One would have to live with a fair amount of untidiness, and one would have to live with knowing at the outset that there's probably going to be more than one set of probabilities at the end of the day. (Long pause) CHAIRPERSON I am afraid we are not able to discontinue the video recording. We have certain legal obligations in this regard. So it's always a problem, but I suppose it's a price that we will have to pay. We are doing our best to make it not too intrusive. Mr Jansen sorry again. Yes, I assume you would have a fair bit of argument to go through still? MR JANSEN Yes, yes. CHAIRPERSON Yes, so when you reach about fourish won't you find a convenient stage and then indicate to me. MR JANSEN Now we know Mr Chairman, that Mr Mfalapitsa must have joined Vlakplaas or he must have been placed at Vlakplaas basically in January 1982. It was after his return and his debriefing and a period of detention in Zeerust. We know that he had contact with Kagiso, his uncle living there. Now we know Mr Musi mentions a visit which Mr Mfalapitsa paid in essence Mr Musi's mother and the family at some stage. Mr Mfalapitsa on the other hand, that is the first meeting on the Musi version. The first meeting on the Mfalapitsa version is outside his uncle's home. The run-up to the Musi version is simply that Mr Mfalapitsa came around to greet the family. The run-up to the first meeting of the Mfalapitsa version is that there was a message left at the house, if Mr Mfalapitsa is in the area he must please contact Mr Musi. Now I believe that firstly either of the two could be mistaken about the first meeting, exactly how it happened or the versions can be reconciled in the sense that there may have been two such meetings. But I believe it to be unlikely that there was mention of Nkosi and Matsidiso on the first meeting, simply because if it was the first meeting in the Musi version, it was certainly a very social meeting and so on and one would assume, well my logic tells me that surely somebody like Mr Musi being very keen to know what a comrade in arms is doing and how he could possibly join, would have asked him about the possibilities of leaving the country and military involvement in general terms but I don't think they would sort of have jumped into the idea of saying listen we plan to kill two people in the vicinity, can you help us? I just think as a matter of general experience that that would also not even have happened on the Mfalapitsa version at the first meeting. In other words, there outside the house it probably would have been a curious Mr Musi trying to find out what can be arranged or what possibilities are there of getting involved in the armed struggle in general and so on. And that fits in with Mr Mfalapitsa's version of going to Mr Coetzee and Mr Coetzee saying just try and dissuade them of this notion of going abroad. CHAIRPERSON But would he have done just that, on the probabilities would he have just said to him, look go back and dissuade them, or look here, go back and try and dissuade them, if they won't listen we're going to set them up. In other words doesn't it sound a bit improbable that Coetzee would have just said, look go back and dissuade them, now he goes back, he tries to dissuade them, he can't dissuade them and now he walks away, and he then he comes back later and says eh I've got a hit. MR JANSEN Mr Chairman you're correct, it's improbable, that part of Coetzee's evidence which says, go back and dissuade them, full stop. That is improbable because that would have introduced another meeting at some stage or another report-back, but again it ties up with what was said in the first place, was it just leaving the country or was there already at the first report a report about the Nkosi and the thing. But what is quite explicable of that, let's say that something that, that second element of that discussion that Mr Coetzee must have had with Mfalapitsa is, and I believe that's where their memories just differ. If one accepts Mfalapitsa's version for the timebeing, what probably happened at the first occasion was, he went there and he said look I have information of youths wanting to leave the country for military training. Coetzee one would imagine, would think, well what are you telling us, there are youths wanting to leave the country, it's almost meaningless information saying go back, just tell them to leave these plans of military and things but in the context, and maybe I'm talking more of not actually what they were saying but how their thought processes would have worked, if you can come up with specific information, remember that is what your job is, we don't want to be told that the youth is angry and they want to overthrow the apartheid government, we need things with a little bit more specific, if there is specific information which we can use, which shows of their political involvement, you must report that to us. In other words that they both happened, in other words he said try to dissuade them of this getting involved in the military struggle etc, but see if you can't get any specific kind of information. And just as a general point of view, I mean, one would imagine that they would have said, well you know either get information what they are involved in or what other people are involved in or what's going on in the townships. In other words you are close to these people, they can unwittingly be a source of information to you, you know they don't need to be your registered informers, they can unwittingly be a source of information for you, especially now that they're showing all this interest. For instance just Musi's telling them, he's giving them information of three other people who are involved or interested in politics etc, it may be people that they are now going to - it would be natural to start observing people such as those. CHAIRPERSON That's quite right, I mean Coetzee would have been interested because he would have known that Musi's two brothers had left in any event, so this is not like the people who are totally unlinked ...(intervention) MR JANSEN Coetzee would specifically have been aware of the Musi family and their involvement. And then what seems to have happened was he went back, Mfalapitsa went back and told them look I can't really arrange going outside, and it could be that Mfalapitsa said something like you know we can train you here or something - I agree one, I don't think that one must make too much of the case that there was a possible suggestion you know - "don't you want to be trained inside", it could be, it could not be, but in the greater scheme of things it's certainly on the proportionality and the severity of the offence, it does reflect a bit on Mfalapitsa if there was sort of like this suggestion, something in the process or in the line of an entrapment, but in the overall scheme of things there must have been discussions which, if one has a look at the evidence here, Mr Chairman, these discussions took place, could not have lasted more than five minutes, and they were in this like little staccato fashion, you know, we can't take you across the border for military training there, but do you want to be trained inside and we can supply weapons etc. That's how people testify 15 years later, those discussions must have been loose, they must have been cordial on this common understanding that you know we are friends and we can be trusted, etc. One must accept that it is a matter of complete impossibility to try and reconstruct those conversations, and one must not reconstruct them in favour or against any of the persons, that would be I think injudicious and not fair. One must accept that there are various probabilities. And so this thing progressed and it may be that the suggestion, and that's why I believe that the issue of the sketch-plan is a problem which is a little bit more - because I think one must not exaggerate because it may very well be that at the first meeting, or at the second meeting Mfalapitsa told them listen, or try to elicit from them, do they have any specific plans, and then they mentioned Nkosi and Matsidiso and to ensure that they're just not talking about them in general, and maybe I'm speculating a bit too much and impermissibly so. But at some stage there was either mention of a sketch plan or one was produced either at that stage, in which case Mfalapitsa is wrong, or then were told to well, produce this plan to make sure that there was some sign that their plans were not just talk but to give an indication of their actual intent. Which could then be that if Coetzee says well there was mention of, that they had a sketch plan, and as I understand Coetzee's evidence, he never saw a sketch plan, it was never handed to Mfalapitsa, it was something that Mfalapitsa had told them that there is, they have a sketch plan, they have a plan with these people's houses on but I would agree that Mfalapitsa may be mistaken, I mean the probabilities are more that he's mistaken as far as that is concerned. CHAIRPERSON Yes. Then perhaps you could deal with the specific evidence of Mfalapitsa in regard to the intended targets and a sketch plan, perhaps in a bit more detail so that we have what your submissions are about the version of your client on these issues. We will adjourn the proceedings until tomorrow morning and we'll reconvene at 9 o'clock. Well it seems that I'm overruled from the Bar in this respect, just to show how accommodating the TRC is, we will adjourn until 9:30 tomorrow morning. COMMITTEE ADJOURNS