amntrans AMNESTY HEARING 1999-07-22 PRETORIA 9 SIMON RADEBE JAPIE MAPONYA https://sabctrc.saha.org.za/hearing.php?id=53554&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99071923_pre_990722pt.htm ON RESUMPTION CHAIRPERSON We are continuing with the hearing concerning the Maponya incident. Mr Hattingh? MR HATTINGH Thank you Mr Chairman, I call the applicant Mr Simon Radebe, he will give evidence in Sotho. SIMON RADEBE (sworn states) CHAIRPERSON Thank you, you may be seated. EXAMINATION BY MR HATTINGH Mr Chairman, may I just before I start leading his evidence, beg leave to had up to you a supplementary affidavit. This affidavit was submitted to the TRC some time in May already, but it wasn't included in the bundles. CHAIRPERSON Thank you Mr Hattingh, this will be Exhibit H? MS LOCKHAT That is correct Chairperson. MR HATTINGH Thank you Mr Chairman. Mr Radebe, you are an applicant in this matter, the matter of Japie Maponya, is that correct? MR RADEBE That is correct. MR HATTINGH Have you yesterday, have you read your supplementary affidavit, the one that I have made mention of, this affidavit, have you read it? MR RADEBE That is correct. MR HATTINGH Do you confirm the correctness of the contents thereof? MR RADEBE That is correct. MR HATTINGH It deals mainly with general background and political motivation, Mr Chairman. Mr Radebe, you were a member of the South African Police and during September 1985, you were attached to Unit C1, stationed at Vlakplaas, is that correct? MR RADEBE That is correct. MR HATTINGH What was your rank at the time? MR RADEBE I was a Warrant Officer. MR HATTINGH You were never an askari, you were a policeman from the beginning, is that correct? MR RADEBE That is correct. MR HATTINGH Were you one of the members of the group of Vlakplaas members who were sent to Josini to go and work there? MR RADEBE That is correct. MR HATTINGH And Mr Nortje, was he the leader of that team? MR RADEBE That is correct. MR HATTINGH Whilst you were at Josini, did you receive any instructions from Mr Nortje? MR RADEBE That is correct. MR HATTINGH When did you expect to return from Josini on this particular occasion? MR RADEBE After three weeks. MR HATTINGH And did you remain there for three weeks or did you come back before three weeks had expired? MR RADEBE I came back before the three weeks. ADV GCABASHE Could I just ask, Mr Hattingh, I am sorry, you were expecting to return after three weeks, were you told that before you left Vlakplaas or was that just standard practice, which of the two are you referring to? MR RADEBE It was the usual practice. ADV GCABASHE Okay, thank you. MR HATTINGH Who gave the instructions for you to return to Vlakplaas? MR RADEBE It was Sergeant Nortje. MR HATTINGH What did he say to you when he gave those instructions? MR RADEBE He said "you must urgently come to Pretoria, they want you." MR HATTINGH Did you and the other members of that group, then return to Pretoria? MR RADEBE That is correct. MR HATTINGH Where did you go when you arrived in Pretoria? MR RADEBE We went to Vlakplaas. MR HATTINGH What happened when you arrived at Vlakplaas? MR RADEBE If I recall, he said I should change the kombi and take a panel van, that was like an ice-cream kombi. MR HATTINGH Who said that Mr Radebe? MR RADEBE It was Sergeant Nortje. MR HATTINGH Was Mr de Kock at the farm when you arrived there? MR RADEBE Yes, no, no. CHAIRPERSON Sorry Mr Radebe, you said it was like an ice-cream van, was it the one with the extended roof? It's got a higher roof than the normal panel van? MR RADEBE That is correct. MR HATTINGH You were travelling in a different vehicle on your way back from Josini to Vlakplaas, is that correct? MR RADEBE That is correct, I was driving in a kombi and Almond Nofemela was also driving in another kombi. MR HATTINGH And you say Mr Nortje gave you instructions to take another kombi, the - I think it was referred to in Mr de Kock's trial as the ice-cream kombi, is that correct? MR RADEBE Yes, but we call it a panel van because it doesn't have windows. MR HATTINGH Did it have seats at the back? MR RADEBE No. MR HATTINGH Do you recall what his instructions were, he told you to take this panel van and do what? MR RADEBE He said I should go to Krugersdorp at a bank, we will put Japie in the kombi because it is not see-through and Almond will follow us and nobody should see where we are going to. MR HATTINGH All right, we will take that step by step, so you were given instructions to go to a bank in Krugersdorp? MR RADEBE That is correct. MR HATTINGH Who accompanied you in your vehicle, do you remember Mr Radebe? MR RADEBE If I recall very well, it was Chris Mosiane, Jeff Bosego, Debogo Macetinga and I do not recall the others, but I think we were six in the kombi. CHAIRPERSON Sorry, can you just repeat those names again please, Mr Radebe? Chris Mosiane and the other two? MR RADEBE Jeffery Bosego and Debogo Macetinga. MR HATTINGH You say you don't recall the others, but you were about six in the kombi? MR RADEBE Yes, five or six. MR HATTINGH Yes, and were you going to be accompanied by another vehicle? MR RADEBE Yes, it was a Jetta. MR HATTINGH And who was going to drive that vehicle? MR RADEBE Almond Nofemela. MR HATTINGH And do you know who was going to be in that vehicle with him? MR RADEBE If I recall well, he was with Johannes Mbelo and Moses Nzimande. ADV GCABASHE Sorry again, you observed this or you were told this before you left Vlakplaas, can you distinguish between the two? MR RADEBE I was told this. ADV GCABASHE Thank you. MR HATTINGH Thank you. Did you then depart, or before you departed, what exactly were your instructions, go to a bank in Krugersdorp and do what there? MR RADEBE I was going to drop off Chris, he had his own instructions that I did not know. MR HATTINGH Yes, and what did you then have to do after you dropped him off? MR RADEBE I waited for him where he said I should park and wait for him. MR HATTINGH Did you do that, did you go to the bank and drop him off there? MR RADEBE That is correct. MR HATTINGH Could you see the bank from where you were parked? MR RADEBE Yes, United Bank. MR HATTINGH And did you see Mr Mosiane entering the bank? MR RADEBE Yes. MR HATTINGH Did you know where the Jetta was at that stage, Mr Radebe? MR RADEBE No. MR HATTINGH Did Mr Mosiane then return from the bank? MR RADEBE That is correct. MR HATTINGH And did he make a report to you? MR RADEBE He told me that the person he went to see, that is Japie Maponya, seemed not to agree with his mission or with his story. MR HATTINGH Yes, and what did you then, what did you do after you received that report? MR RADEBE I contacted Sergeant Nortje through a walkie talkie. MR HATTINGH Where was he, did you know at the time when you contacted him, where he was? MR RADEBE I did not know. MR HATTINGH Do you know whether he was still at Vlakplaas? MR RADEBE No, he was around Krugersdorp, but where in Krugersdorp, I do not know. MR HATTINGH How did you know at that stage that he was also in Krugersdorp? MR RADEBE He told me that he was also going there and he will arrive at the Special Branch offices in Krugersdorp. MR HATTINGH Yes, all right, so you contacted him by radio and did he give you any further instructions? MR RADEBE Yes. MR HATTINGH Was that after you had reported to him what Mr Mosiane had told you? MR RADEBE That is correct. MR HATTINGH What were his instructions to you on that occasion? MR RADEBE He said we should wait and when he comes out, we must make a plan of taking him. MR HATTINGH Referring to Mr Maponya? MR RADEBE That is correct. MR HATTINGH And did you then wait there? MR RADEBE That is correct. MR HATTINGH What was your plan, Mr Radebe, how were you going to take Mr Maponya? MR RADEBE It was to kidnap him. MR HATTINGH Yes, but how were you going to do that? Who was going to grab him, into what vehicle was he going to be put? MR RADEBE He was supposed to be taken into the panel van that I was driving. MR HATTINGH When was that decision taken? MR RADEBE At the farm. MR HATTINGH Was that why you had to take that vehicle instead of the one that you were driving on your way back from Josini? MR RADEBE That is clear to me. MR HATTINGH Yes, so was it already discussed at the farm that Mr Maponya would be kidnapped, or might be kidnapped? MR RADEBE Yes, when we were given instructions, we were given instructions individually, one would have to do something. MR HATTINGH And your instructions were? MR RADEBE That they should take him into the kombi and I should drive in front. MR HATTINGH On your way back to Vlakplaas? MR RADEBE That is correct. MR HATTINGH All right, now did you then wait for Mr Maponya to come out of the bank? MR RADEBE That is correct. MR HATTINGH Can you give us any estimate of the time that you had to wait there for him? MR RADEBE It was not more than an hour when he came out. MR HATTINGH Did you observe him emerging from the bank? MR RADEBE Yes, and I contacted Nortje, Almond also had a radio. Unfortunately when he arrived at Almond and them, they took him and they left and I followed them to the farm. MR HATTINGH So did he arrive at the Jetta before he got to your vehicle, is that what you are saying? MR RADEBE Before I could approach him, because I was approaching him from backwards. MR HATTINGH And how did they grab him, did you see that? MR RADEBE I did not see because the cars were driving passed. Almond reported on the radio that he was with him, and we left. MR HATTINGH All right, so you received a radio report to the effect that they had grabbed him and that he was then in their car? MR RADEBE I did not get a report, I happened to hear because my radio was on. MR HATTINGH I see, was he reporting to somebody else? MR RADEBE Yes, he was reporting to Nortje. MR HATTINGH Were you all tuned in on the same wavelength? MR RADEBE That is correct. MR HATTINGH Did you then depart for Vlakplaas? MR RADEBE That is correct. MR HATTINGH Did you see the Jetta on your way to Vlakplaas? MR RADEBE Yes, it was driving in front of me, but along the way I did not see it any longer. MR HATTINGH All right, so did they arrive at Vlakplaas before you did? MR RADEBE That is correct. MR HATTINGH We have heard some evidence to the effect that Mr Maponya was taken from, on the way to the farm, taken from the Jetta and put into the van, is that correct according to your recollection? MR RADEBE Where, on the way? MR HATTINGH Yes? MR RADEBE No. MR HATTINGH Right, so when you arrived at the farm, where did you go? MR RADEBE I do not remember whether we went into the house or we went to the barbecue stand, "braaivleis" stand. MR HATTINGH Do you recall going down to the river at all after you arrived at the farm? MR RADEBE I do not recall well, but I think I did go to the river. I do not want to say I remember, but I think I did. MR HATTINGH Did you on the farm, at Vlakplaas, did you observe any assault on Mr Maponya? MR RADEBE When I arrived, he was being questioned. All of us who questioned him, took part in the assault. MR HATTINGH Do you recall where that assault took place, where on Vlakplaas? MR RADEBE I don't know whether it was at the "braaivleis" stand or in the house, but it took place. CHAIRPERSON All the evidence that we have heard up to now Mr Radebe, is to the effect that it was down, near the river at the shooting range, where there is a braai place. MR RADEBE There is a shooting range and a little bit down, there was a "braaivleis" stand. MR HATTINGH Do you recall whether the interrogation and the assault upon Mr Maponya took place there at the river or have you some different recollection? MR RADEBE I do not recall. MR HATTINGH In your statement which you made in your application for amnesty, I refer Mr Chairperson to Bundle 1(c) at page 720, you said the last sentence on page 720 "... I cannot recall whether I myself participated in the interrogation, but I was in the vicinity while the interrogation took place. During this interrogation, Japie Maponya was indeed assaulted. I definitely did not participate in the assault. Japie Maponya was taken to the river after that, at Vlakplaas, and I remained at the main building and I have no further knowledge regarding this incident." Now first of all, is it correct Mr Radebe, that you did not participate in the assault upon Mr Maponya? MR RADEBE During my work, I have done many interrogations. When I read in the newspapers, when I saw my name in the newspapers, I recalled that I was there. There is no way that you would drive a car that was supposed to kidnap a person and you do not take part. I am trying to say I was supposed to forget because I took part in many interrogations, but I have since recalled, I have to tell the truth only. MR HATTINGH So do you now say that you did participate in the assault on Mr Maponya? MR RADEBE That is correct. CHAIRPERSON Have you got an independent recollection of that? Can you remember how you assaulted him or are you just working it out or inferring that you probably took part in the assault because you must have been there because you were the driver of the vehicle? MR RADEBE I recall that I assaulted him. CHAIRPERSON How did you assault him? MR RADEBE With hands and kicks. MR HATTINGH Did you also interrogate him? MR RADEBE That is correct. MR HATTINGH Can you remember what questions you asked him? MR RADEBE Yes. MR HATTINGH What did you ask him, Mr Radebe? MR RADEBE I asked him where his brother, Mainstay, was. MR HATTINGH How did you know that you had to ask him that question? How did you know at the time, that you had to ask him that question? MR RADEBE Nortje told us that we should ask him about his whereabouts because it was thought that he infiltrated the country. MR HATTINGH That who infiltrated the country? MR RADEBE Mainstay. MR HATTINGH Mainstay? And did you receive an answer to your question? MR RADEBE Yes. MR HATTINGH What was the answer? MR RADEBE He said it has been a long time not seeing him, he did not have any contact with him. MR HATTINGH Okay, now just come back to your statement again, Mr Radebe, at page 720. You said in paragraph 27 "... upon our arrival at Vlakplaas, I cannot recall whether we went to the river immediately or whether we first went to the farm homestead. My recollection is however, that they kept him at the farmhouse first, where he was interrogated." And then later on on page 721, paragraph 28 you say - "... Japie Maponya was then taken to the river at Vlakplaas after that." Now what is your recollection in this regard now, where did the interrogation take place, did you first take him to the house or did you take him directly down to the river? MR RADEBE I said I do not recall whether we started at the house or at the river. MR HATTINGH Can you still not recall? MR RADEBE No. MR HATTINGH I am sorry, I am not sure that I understand your answer. Do you now recall whether you first took him to the house or whether you took him directly to the river? MR RADEBE I do not recall where we started, but what I do recall is that we went to the river, but under which circumstances, I do not recall. MR HATTINGH Yes, were you there when they stopped the interrogation and the assault on Mr Maponya? Can you recall? MR RADEBE Can you repeat your question sir? MR HATTINGH Were you still present at the time when they stopped interrogating Mr Maponya and stopped assaulting him? MR RADEBE I was not there. MR HATTINGH Do you know where you had gone to? MR RADEBE I do not recall. MR HATTINGH Do you recall receiving any instructions from Mr de Kock on that particular evening with regards to the question as to whether you had to come to work the next day? MR RADEBE I do not recall. MR HATTINGH You say you don't recall, did you however leave the farm on that particular evening? MR RADEBE I don't recall whether I slept there or I left. CHAIRPERSON Sorry, at that time, where was your home, where did you normally sleep at night, when you were working here in Pretoria? MR RADEBE At my house, but Colonel de Kock sometimes ordered us to sleep here at the farm. MR HATTINGH Yes, now just coming back to the assault on Mr Maponya, can you recall who else participated in the assault? MR RADEBE Willie Nortje, Fourie, Jeff Bosego and Chris and Macetinga, I do not recall the others. MR HATTINGH Can you recall whether Mr de Kock participated in the assault? MR RADEBE I first saw Mr de Kock at the farm after we had taken this person. MR HATTINGH Yes, but now during the assault, was he there and did he participate according to your recollection? MR RADEBE I do not want to say yes and I do not want to say no. MR HATTINGH Do you seem to have a recollection in this regard? MR RADEBE I don't know, I think he asked me, he called me and asked me, and told me to ask him something, I do not recall. MR HATTINGH Did you see teargas being sprayed in his face, in Mr Maponya's face? MR RADEBE I did not see who sprayed it, I just smelt it. MR HATTINGH Very well, now the next day, were you at work Mr Radebe, do you remember? MR RADEBE Yes, I went to work. MR HATTINGH And for how long did you remain at work on that day? MR RADEBE We knocked off half day. MR HATTINGH Was there a reason for that? MR RADEBE The reason was that each time when we came back, we would report at the farm, to report and we would be told again when to report for duty and we would go home, the whites will remain in the bar. MR HATTINGH Did you receive any, were you given permission to leave after half a day? MR RADEBE Yes, that is correct. MR HATTINGH Who gave you permission? MR RADEBE They called us all and Colonel de Kock came to tell us that we were off and he gave us the day when we were supposed to report for work. MR HATTINGH Can you tell us more or less at what time on that particular day, he told you this? MR RADEBE I would not recall. MR HATTINGH Did you see Mr Maponya again the next day at the farm? MR RADEBE No. MR HATTINGH Do you know who took him away from the scene? MR RADEBE No. MR HATTINGH Do you know where he was taken to? MR RADEBE No. MR HATTINGH I am not sure that you didn't perhaps misunderstand me, let me just try and clear it up, when I asked you whether you saw who took him away from the scene, I was then referring to the scene at the river where he was assaulted, did you see who took him away from there? MR RADEBE I did not see, I do not recall who did that. MR HATTINGH All right, now you were working under Mr de Kock and at that stage, he had been your Commander for some months already, is that correct? MR RADEBE Yes. MR HATTINGH When he gave you instructions, did you obey those instructions or did you sometimes disobey them? MR RADEBE You were supposed to honour those instructions. MR HATTINGH And did you, Mr Radebe? MR RADEBE I did. MR HATTINGH Oh yes, there is one further aspect, did you whilst you were at Vlakplaas, ever work in Mafikeng? MR RADEBE That is correct. MR HATTINGH On more than one occasion? MR RADEBE I worked in Mafikeng for six years, if I recall well, between four and six years. MR HATTINGH Now was that whilst you were stationed at Vlakplaas? MR RADEBE That is correct. MR HATTINGH And did you go there for three weeks at a time, on various occasions? MR RADEBE Yes, every month I would go for three weeks, but there were some changes there and there, but I knew well where to work. MR HATTINGH And you say that on more than one occasion you were sent with other members of Vlakplaas to go and work in Mafikeng? MR RADEBE That is correct, I was working with Warrant Officer Martiens Ras. MR HATTINGH Mr Radebe, you left the Vlakplaas, you left the South African Police when? MR RADEBE If I recall well, it was on the 31st of August 1993. MR HATTINGH What is the state of your health? MR RADEBE Bad sir. MR HATTINGH Better? MR RADEBE Bad. MR HATTINGH Bad, oh, sorry. Have you had heart surgery? MR RADEBE Yes. MR HATTINGH And have you also got trouble with your eyes? MR RADEBE That is correct, I have diabetes and high blood pressure. MR HATTINGH And do you also suffer from sugar? MR RADEBE That is correct and I attend psychological treatment at hospitals. MR HATTINGH What do you attend, why do you have to attend treatment by a psychologist? MR RADEBE They are checking on me, I struggle to sleep, I have nightmares and I am forgetful. MR HATTINGH Are you being treated for stress? MR RADEBE That is correct. MR HATTINGH Does it affect your memory? MR RADEBE That is correct. MR HATTINGH Thank you Mr Chairman, we have no further questions. NO FURTHER QUESTIONS BY MR HATTINGH CHAIRPERSON Thank you Mr Hattingh. Mr Visser, do you have any questions? MR VISSER I have no questions, thank you Mr Chairperson. NO CROSS-EXAMINATION BY MR VISSER CHAIRPERSON Mr Lamey, do you have any questions? Oh, sorry, then I will ask Mr Ramawele. CROSS-EXAMINATION BY MR RAMAWELE Thank you Mr Chairman. Mr Radebe you say that at the time when you arrived at Vlakplaas from Josini, Mr de Kock was not at the farm, is that so? MR RADEBE That is correct. MR RAMAWELE Is it correct that in fact, you say he was not at the farm because you didn't see him? MR RADEBE He was not there because I did not see him, yes. MR RAMAWELE You are not saying he was not there because as a fact, he was not there? What I am trying to say is, you cannot say as a fact that he was not on the farm? MR RADEBE I went into the bar, de Kock was not anywhere. Had he been on the farm, he would come and greet us as usual. MR RAMAWELE But are you telling the hearing that you have seen all, any other place at Vlakplaas, or rather you are certain that he was not there, that he couldn't have been in one of the offices or places? MR RADEBE That is what I observed. MR RAMAWELE And you say that your instruction was to drop off Chris at the bank in Krugersdorp? MR RADEBE Yes, we were all going there, he had his own instructions. MR RAMAWELE But your instruction was to drop him off at the bank? MR RADEBE My instructions were to drive and I heard him telling me where to park. MR RAMAWELE Was that the only instruction that you received from Nortje, to drop off, to drive and go to Krugersdorp? MR RADEBE We were all going there. MR RAMAWELE What I am saying is, I am talking about an instruction, was that the only instruction for you to drive and go to Krugersdorp, which you received at Vlakplaas? MR RADEBE Yes, and which kombi to drive. MR RAMAWELE Yes, there was no other instruction that was given to you at Vlakplaas, by Nortje? MR RADEBE I have told you the one that I recall. MR RAMAWELE Was there no instruction that Japie Maponya should be kidnapped in Krugersdorp, given to you in Vlakplaas? MR RADEBE I received that on the radio, I recall very well, but because we were driving in the kombi, I knew that there was something that was going to happen. MR RAMAWELE Just put it more clearly, when you received the instruction to kidnap Japie Maponya, where were you? MR RADEBE That was after Chris said this person is not co-operative. MR RAMAWELE In other words, according to you the decision to kidnap Japie Maponya was taken in Krugersdorp? MR RADEBE I would say so because I got it from the walkie talkie. MR RAMAWELE And from the look of things you will agree with me that Almond Nofomela had already also received an instruction to kidnap Japie Maponya, because he did so in Krugersdorp? MR RADEBE I explained that myself, Chris and Nofemela, each one of us had his instructions. MR RAMAWELE But you don't know who gave Almond Nofomela instructions to go to Krugersdorp and kidnap Japie Maponya? MR RADEBE It is Nortje automatically, it was Nortje and Van der Walt if not Fourie, but Nortje was the Team Leader. MR RAMSWELE Am I to believe that you are actually making an inference, you are not stating as a fact that you heard that it was Nortje who gave Nofomela instructions? MR RADEBE If, yes, we were with Nortje, but if you didn't hear a person talking, you cannot confirm it. MR RAMAWELE Thank you, I've got no further questions. NO FURTHER QUESTIONS BY MR RAMAWELE CHAIRPERSON Thank you Mr Ramawele. Mr Lamey, do you have any questions? CROSS-EXAMINATION BY MR LAMEY Yes, thank you Chairperson. Mr Radebe, how do you pronounce your surname, Radebe? MR RADEBE Call it any way sir, it is okay. MR LAMEY It would appear to me from reading your first statement, which were made in your amnesty application, and from what you have testified now here, that you have indeed a serious problem with your memory, is that correct, is that ascribed to your psychological stress problems that you have, which you have mentioned? MR RADEBE That is correct. MR LAMEY Can we assume here that also, that you might be drawing inferences and where you state certain facts, that your memory could be affected and that you might be not correct as a result of the memory problems that you have? MR RADEBE Yes, and the other problem is not recalling very well. MR LAMEY Are you sure that Mr de Kock was not at the farm when you received your instructions to go to Krugersdorp or could you have forgotten about that? MR RADEBE He was not there. You know, when you come back, he would come and greet you, even though he would not shake hands with you, but he would come and greet you. MR LAMEY That is something that you assume would have happened, is that why you say that he wasn't there? MR RADEBE I did not see him, that is why I am saying he was not there, I did not see him. MR LAMEY Did you witness or see when the instructions were given to Nofemela at Vlakplaas or did you not see that? MR RADEBE I did not hear it. MR LAMEY Despite this memory problems that you have, are you a hundred percent certain that Nortje ... (tape ends) ... MR RADEBE Yes, if he did not give me these instructions, where would I drive to? MR LAMEY Well, is it not possible that you say Nortje gave you this because he was your Team Leader at Josini and you assume that he gave you these instructions? MR RADEBE No. MR LAMEY Because I want to read to you what you have stated - sorry Mr Chairperson, is there anything that you ... CHAIRPERSON No, I was just going to perhaps ask, is it possible that you might have received instructions to go to Krugersdorp when you were still at Josini? MR RADEBE No, I was given the instructions on the farm. MR LAMEY Are you sure about this, isn't it possible that Nortje said something at Josini that you have to go to Krugersdorp, that you slept over at Vlakplaas and then the next morning, you went to Krugersdorp with your group as he mentioned earlier at Josini? MR RADEBE No, I do not recall that. ADV GCABASHE Could I just ask Mr Radebe, did you in fact sleep over at the farm before going to Krugersdorp or did you come in from Josini, stay there for whatever period of time, and then go straight on to Krugersdorp, can you recall? MR RADEBE I do not recall, but what I recall is we went to Krugersdorp in the afternoon. ADV GCABASHE Thank you. MR LAMEY I want to read to you from your amnesty application, page 719. CHAIRPERSON Which paragraph? MR LAMEY I am starting from paragraph 25 and then 26 Chairperson. Before I ask you that, what did Nortje tell you at Vlakplaas, what exactly can you recall, did he tell you? MR RADEBE He said we were going to Krugersdorp, there is a rumour about Mainstay. Because he was supposed to go there, I do not recall whether we went together with him, but we were not supposed to get close to the offices, people were not supposed to see us there. MR LAMEY Did he mention anything ... CHAIRPERSON Sorry, when you say the offices, which offices are you referring to? MR RADEBE The office of the Special Branch in Krugersdorp. MR LAMEY So what you are saying is, if I understand your evidence correctly, Nortje then spoke to Chris Mosiane and you did not know what Chris Mosiane was going to do? MR RADEBE I did not hear Chris Mosiane's instructions, but he told me when he came from the bank, but on the way he told me where to take him. MR LAMEY So, are you saying that you drove then from Vlakplaas directly to the bank? MR RADEBE Next to the bank. MR LAMEY Next to the bank, you did not go anywhere else? MR RADEBE I do not recall, but I was supposed to stop 30 metres so that I am not seen, it is only Chris who went into the bank. MR LAMEY Were you told by anyone who Chris were going to talk to in the bank, or what he was going to do there? MR RADEBE He did not tell me, he told me after he came back. I do not even know the issue of a handgrenade and a gun up to this stage. MR LAMEY So up to the stage when you arrived at the bank and Chris had to go into the bank, you did not know anything about Japie Maponya? MR RADEBE I think I mentioned that I knew that we were going to fetch someone. CHAIRPERSON Yes, he said in his evidence a short while ago that Mr Nortje mentioned at Vlakplaas, that there was a rumour that Mainstay was, had come back or had infiltrated. MR LAMEY Yes, but the question is, I have heard what you have said there Mr Radebe, but the question is, up to the time that you arrived there at the United Bank in Krugersdorp, when Chris Mosiane got out, has anybody mentioned to you who he was going to approach or mentioned the name Japie Maponya? MR RADEBE I do not recall that. MR LAMEY You don't recall? MR RADEBE I don't. MR LAMEY So, have your memory lost you here? CHAIRPERSON If you can't recall, you can't recall. ADV GCABASHE But can I ask Mr Lamey, before you proceed, I am a little confused on this issue because you said, if I remember well, in your evidence in chief and you repeated it again just now, that you knew something about Japie Maponya being abducted and as I understood it, that was before you left the farm? Mr Lamey has just asked you again if you knew anything about Japie Maponya before you got to the bank and I am a little confused, unless I just took the note incorrectly? CHAIRPERSON I think what has happened there, perhaps he can tell us, I also had that note that he said that when he was at the farm, the abduction of Japie Maponya was mentioned, but then later he said that he only received the instruction over the radio after Chris had come back from the bank. ADV GCABASHE Can you clear that up? MR RADEBE It is like the Chairperson explained it. ADV GCABASHE Can you just repeat it yourself slowly, for me please? MR RADEBE Which one? About where I got the instructions? ADV GCABASHE No, just clear up for us where you first heard about Japie being abducted, what you recall. MR RADEBE I heard it on the radio, we went there to talk to him only, that is how Chris told me. Had he been positive, he was not going to be taken. Had he told us where Mainstay was, he was not going to be taken. ADV GCABASHE Thank you, thank you Mr Lamey. MR MALAN I am sorry, may I just follow up here, I have a note that you said that Chris went into the bank, but he didn't tell you why or who he would be seeing? MR RADEBE Yes, if I didn't mention it, I am wrong. I think I said he went in to talk to the younger brother to Mainstay. If I didn't mention it, it was my fault. MR LAMEY Who told you that, was it Chris Mosiane? MR RADEBE Who told me what? MR LAMEY That, who told you that Chris was going into the bank to see Orderele Maponya's brother? MR RADEBE It is Chris himself. CHAIRPERSON Did he tell you that before he went into the bank or after he had come out of it? MR RADEBE Even before we could reach the bank. MR LAMEY So am I correct to assume that up to that stage, you did not know that, before Chris told you this, who he was going to approach at the bank? MR RADEBE I did not know that it was Japie, but I knew it was the brother to Maponya. MR LAMEY So you did not know what his name was? MR RADEBE Yes, I did not know his name. MR LAMEY: Mr Radebe, I just want to take you back to your amnesty statement, paragraph 25 on page 719. You say here - "... I can recall that we stood under the command of Warrant Officer Willie Nortje, that was at Josini. At a stage he told us that we were needed urgently at Krugersdorp and that we had to return. We then returned in our vehicles from Josini, first to Vlakplaas. I cannot recall precisely what we did at Vlakplaas, but from Vlakplaas we then moved in the direction of Krugersdorp. I can recall that we drove in a kombi from Vlakplaas to Krugersdorp, however I cannot recall who was with me in the kombi. I know that some of the other black members who had gone on the operation, were Almond Nofemela, Nzimande, Mbelo, Jeff Bosego, Chris Mosiane. Willie Nortje then told me that we had to assist Krugersdorp Security Branch because they had certain information about one Mainstay, the MK name for Orderele Maponya. Nortje informed me that Japie Maponya who worked at the United Building, apparently had information about his brother." Let us just stop there. Firstly, Mr Radebe, here in your statement you leave the impression that you received your instructions in Josini to go to Krugersdorp and you went to Krugersdorp and there Willie Nortje told you that you had to assist the Krugersdorp Branch regarding the information on Mainstay and Nortje told you that Japie Maponya was working at the United Bank Building, that is in clear contrast as to what you have testified now. What is your comment on that? MR RADEBE It might be so, because I had already told you that I have a problem of forgetting. I told you already that I do not recall things very well. MR LAMEY Sorry Mr Chairperson, I apologise the volume of my apparatus was switched off, I didn't hear the answer. CHAIRPERSON The answer was that, when you put to him the contradictions, he said that might be so as I have a problem with remembering and I have the problem of forgetting. MR LAMEY Okay. Right, Mr Radebe, I can understand that if you have a problem with your memory, but you must remember that you are under oath, that you must be careful then to testify what you are testifying. Is it possible that what you have stated in your original amnesty application, could be correct? MR RADEBE You know, I did not even take my tablets today because I was afraid if I take my tablets, I would be sleepy here and I would not respond to questions. CHAIRPERSON The question put to you by Mr Lamey is, what he is saying Mr Radebe is that what you have said in paragraph 25 and 26 which was read to you a moment ago, is not the same as what you have said while you were sitting here at this hearing this morning, what he is asking you now is, is it possible that the version that you gave in this statement, in your application form, is that correct? He is asking you is that possible? MR RADEBE Yes, it is possible. MR LAMEY Mr Radebe, about the assaults on the farm, you have initially also stated very emphatically, well you have stated in your amnesty application you "... cannot recall whether you participated yourself in the interrogation, but I was in the vicinity when it took place." Today you have testified that you did participate in the interrogation. MR RADEBE That is correct, I said I have recalled, I called back my memory in these days. We must remember that this happened a long time ago, if you remember it was in 1985. MR LAMEY Yes exactly, but what has refreshed your memory since 1985, despite also the psychological problem that you have with your memory? CHAIRPERSON What has refreshed your memory since - not 1985, but since the day of this - since 1997? MR LAMEY Yes, since 1997. CHAIRPERSON When this statement was made. MR RADEBE The treatment is helping me. MR LAMEY Since when have you been under treatment, Mr Radebe? MR RADEBE 1993. MR LAMEY And then you also testified that you definitely, very definitely stated without qualification that you did not participate in the assaults. Today you have stated that you did participate in the assaults? MR RADEBE That is correct. But I mentioned that many things happened at Vlakplaas, so others, you would forget, there is nobody who comes from Vlakplaas who would claim to know everything, who would be recalling everything. You cannot recall everything. MR LAMEY But exactly, if you have been also involved in many other assaults, then you were also I assume, involved with various other members of Vlakplaas during those assaults? CHAIRPERSON Sorry, if you could just repeat that question please, Mr Lamey? MR LAMEY Is that why you say that you cannot recall exactly, because you were involved in many assaults? MR RADEBE That is correct. MR LAMEY If you were involved in many other assaults, I assume that you were not alone, but there were also other members at other times, also involved in the assaults? MR RADEBE Yes, can I give an example, Mr Mosiane said Eric Sefadi was working with us. He was not there, so you will have, you will mix right and wrong things, nobody is right or wrong. MR LAMEY Are you certain because of that, are you still, despite your memory problems, despite many other assaults that you were involved in, despite other members that were with you involved in the other assaults, are you very sure that Mr Fourie and Mr Nortje participated in the assaults? MR RADEBE I said Nortje, I am not sure of Van der Walt and Fourie. MR LAMEY Well, I recall you stating here that it was also Fourie? MR RADEBE I said I did not recall whether it was Fourie, I do not recall whether Fourie or Van der Walt took part in the assault. MR LAMEY You did not mention Van der Walt, you mentioned Nortje and Fourie. I made a note here, "who else participated in the assault, Willie Nortje, Fourie, Jeff Bosego, Chris, Macetinga." CHAIRPERSON My note says "who else participated in the assault, Nortje, Fourie, Bosego, Mosiane, Macetinga, I don't recall the others. I don't know if de Kock took part in the assault. I did not see who sprayed the teargas." But then later on he did mention Mr Van der Walt's name, but it was not in that context. It was here, he said "we each had instructions. Who gave instructions? Nortje and Van der Walt and if not Fourie." MR LAMEY Yes. CHAIRPERSON Yes Mr Lamey, if you could put your ... MR LAMEY How can you be so sure despite all this what you have stated, that Mr Fourie and Mr Nortje indeed participated and for that matter, Mr Mosiane in the assault? Could you be mistaken because of your memory, Mr Radebe, that is all I want to know from you? MR RADEBE If I remember, I am still right. MR LAMEY Why do you say if you remember, do you have some doubt? MR RADEBE I have no doubt, because I mentioned that I do not remember all of them who took part, because we were many. MR LAMEY So do you concede that there could be doubt because they were perhaps present in the area, you think that they participated in the assaults, but it could be that they have not participated in the assault? MR RADEBE It may be so Chairperson. MR LAMEY I've got no further questions, thank you Chairperson. NO FURTHER QUESTIONS BY MR LAMEY CHAIRPERSON Thank you Mr Lamey. Mr Wagener, do you have any questions? MR WAGENER No questions, thank you. NO CROSS-EXAMINATION BY MR WAGENER CHAIRPERSON Ms Bridjlall, do you have any questions? CROSS-EXAMINATION BY MS BRIDJLALL Yes, I do, thank you. Mr Radebe, when Nortje gave you instructions, you said that Nortje gave you instructions that you should return to Pretoria, is that correct? MR RADEBE That is correct. MS BRIDJLALL Did he tell you why you had to return to Pretoria? MR RADEBE He said to us "tomorrow we are returning back." It was not the culture that we should be told why. MS BRIDJLALL So when exactly, do you remember when Nortje told you this, that you were going to return or that you had to return? MR RADEBE Do you mean the date or the day? MS BRIDJLALL Well, how long before you returned, did he tell you this? MR RADEBE I don't remember. MS BRIDJLALL Mr Radebe, yesterday we heard Mr Mosiane say that when he was at Vlakplaas, that I can't remember the name of the person right now, but that the number plates of the Jetta was smeared with sand. CHAIRPERSON I think he mentioned Snor, was it Snor Vermeulen? MS BRIDJLALL Yes, thank you Chairperson. Snor Vermeulen smeared the number plates of the Jetta with sand. CHAIRPERSON He put diesel oil on and then sand. MS BRIDJLALL Do you remember that? MR RADEBE I did not see that. MS BRIDJLALL Did you see the Jetta leave Vlakplaas? MR RADEBE I did not see the Jetta. MS BRIDJLALL Was the Jetta at Vlakplaas when you left? MR RADEBE All of us, we were at Vlakplaas, then I was the first one to leave. MS BRIDJLALL How soon after your arrival at 30 metres from the bank where you were supposed to park, how soon after your arrival there, did you notice the Jetta? MR RADEBE When we followed Japie. MS BRIDJLALL Could you explain that, when we followed Japie, what do you mean by that? MR RADEBE When he knocked off at duty, because you asked me when did I see the Jetta, then I told you that I saw the Jetta when we followed Japie, when he left the bank. MS BRIDJLALL Okay, explain to me how it is that you came to follow Japie out of the bank? Mr Mosiane came back and he said, explain that to me please. MR RADEBE After he left the bank, when Mosiane told me that Japie is negative, then I informed Nortje through the radio, then the answer was we should steal him when he leaves the bank after he has knocked off. CHAIRPERSON Yes, now when he came out, when Mr Maponya came out of the bank, after you had waited for that, about an hour, what did you personally do? You saw him come out of the bank, you knew that your instruction was to kidnap him, to grab him, so what did you do when you saw him come out of the door? MR RADEBE When he left, when he went out of the door, Chris told me that this is the person. Then I contacted Nortje, then Nortje informed me that he should leave the bank for a while because he would be seen. Unfortunately he went to the direction where Nofemela and company were, next to the Jetta, but I was not sure as to whether who accompanied Nofemela, there were three, it was Almond Nofemela, Johannes Mbelo and Moses Nzimande if I remember well. CHAIRPERSON Did you yourself at any stage, get out of the vehicle and physically follow Mr Maponya down the pavement? MR RADEBE I did not leave the car, I did not go out of the car. MS BRIDJLALL I am sorry, I have a problem with understanding you then. You said that you did not get out of the car, how then did you follow him, did you follow him with the vehicle? MR RADEBE Yes, that is correct. MS BRIDJLALL So you were in the vehicle when Nofemela grabbed Mr Japie Maponya? MR RADEBE That is correct. MS BRIDJLALL Did Mr Nofemela see you, did any people from that group see you? MR RADEBE They were supposed to see us, because they knew our cars, especially the panel kombi which we were in, they knew it. MS BRIDJLALL Did you communicate with them, did you communicate with Nortje and say "listen, what is going on now, we were supposed to grab him and now Nofemela is on the scene", or did you ask Nofemela "who gave you these instructions, because it was my instructions and I was supposed to get Mr Maponya?" MR RADEBE I did not, I only informed those in the kombi that Almond Nofemela is in front. The reason for us to take the kombi is because the windows, it did not have windows, so that there would be no person who would be able to trace us if somebody witnessed the whole situation. MS BRIDJLALL Mr Radebe, do you remember whether Mr Japie Maponya was assaulted at any point in time inside the house, because there was a bit of a problem with me understanding your evidence. You said first he may have been interrogated inside the house and then he may have been at the river. Was there any point in time when he was in the house and he was assaulted and interrogated? MR RADEBE I mentioned that I do not remember as to whether he was assaulted because we went to the house first or to the river first. I was not present in the house. If I remember. He was assaulted at a particular place, either next to the river or in the house. MS BRIDJLALL Did you ever see Maponya, Mr Japie Maponya in the house? MR RADEBE I don't remember, but I saw him. MS BRIDJLALL At the time that you saw Mr Japie Maponya, was his face covered? MR RADEBE That is correct. MS BRIDJLALL What was his face covered with? MR RADEBE With a balaclava. MS BRIDJLALL Was it turned to the back so that he couldn't see? MR RADEBE He was covered even on the mouth, I am not able to remember well as to whether the balaclava was turned around. MS BRIDJLALL Do you remember if Kleynhans and Dunkley were there at the river or wherever it is that the assault may have occurred, you are not sure if it is in the house or at the river? MR RADEBE I did not see and again, I did not know them. CHAIRPERSON Were there any white people there present at the place where Mr Maponya was being assaulted and questioned, who you didn't know, who were strangers to you? MR RADEBE It seems I saw only white members whom we used to work with. MS BRIDJLALL Mr Radebe, yesterday we heard the evidence of Mr Mosiane who spoke about an operation that was carried out in Krugersdorp before this incident, that a Unit was deployed and they went in search of Orderele Maponya. CHAIRPERSON That was some months before, some - quite a long time before the abduction of Mr Maponya. MR RADEBE I was not with them. MS BRIDJLALL Do you have any knowledge, do you know that this happened, that a Unit was sent to Krugersdorp? MR RADEBE What we used to do, those will be the only ones who knew, who participated in a particular operation, so others who did not, would not know what happened. MS BRIDJLALL So, was this the only occasion that you went to Krugersdorp in an operation relating to Orderele Maponya, the present incident that we are now concerned with? MR RADEBE It seems I went there later, but I don't remember. MS BRIDJLALL Thank you Chairperson. NO FURTHER QUESTIONS BY MS BRIDJLALL CHAIRPERSON Thank you Ms Bridjlall. Ms Lockhat, do you have any questions? CROSS-EXAMINATION BY MS LOCKHAT Just one question Chairperson. Mr Radebe, at which stage did you realise that you actually assaulted Japie Maponya, was it a year ago or at which stage? MR RADEBE When it appeared on the media, then that was the time when I was able to remember well that I participated in the assault. MS LOCKHAT That was quite a long time ago, or was it now, this media now in this week? MR RADEBE I don't, I am not addicted to reading the newspapers, and then again, my legal counsel advised me that I should rethink this matter deeply, then I kept on enquiring from those I was with, then I found out they were not working with me. When it surfaced, I think maybe it was the beginning of this year when we received the closing date of the amnesty applications, then I started to rethink about the matter. MS LOCKHAT So you think it was the beginning of this year, why didn't you then supplement your amnesty application form to include that, you know, because you also read this and your memory has been refreshed, why didn't you include it in your amnesty application and supplement it? MR RADEBE I did not know that you can do a supplementary application. MS LOCKHAT But I see Mr Radebe, you furnished us with two applications, with two amnesty applications, the second one, you actually supplemented it? MR MALAN Sorry Ms Lockhat, what are you referring to? MS LOCKHAT Page 709 Chairperson and then 712, but I see it seems that it just supplements that. MR MALAN That is part of the application. MS LOCKHAT I see that, thank you Chairperson, I just thought it was handed in at two different occasions, my apologies Mr Radebe, I see it was a supplementary to your amnesty application form. MR RADEBE Thank you. MS LOCKHAT You said you were also going to psychotherapy since 1993, is that correct, you were seeing a psychologist? MR RADEBE That is correct. MS LOCKHAT Most applicants when they do, when they have a problem with their memories and so forth, and they are obtaining psychotherapy, normally they attach a psychotherapist or a psychological report to their amnesty application forms, why didn't you do this in this case? MR RADEBE I did not know as to whether it was needed. If there is a need for that, we can whilst we are still here, we can ask my psychologist to fax that report. MS LOCKHAT Thank you Chairperson, I have no further questions. NO FURTHER QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you. Mr Hattingh, do you have any re-examination? RE-EXAMINATION BY MR HATTINGH Thank you Mr Chairperson. Mr Radebe, do you know the name of your psychologist? MR RADEBE Yes, that is correct. MR HATTINGH What is his name, her name, I am not even sure whether it is male or female? MR RADEBE Anton Potgieter. MR HATTINGH He is actually, if I am not mistaken, a psychiatrist? MR RADEBE That is correct, and J.P. Verster. MR HATTINGH Yes, also a psychiatrist? MR RADEBE Yes, that is correct. MR HATTINGH Did you at any stage, while you were in Krugersdorp, did you see Mr Nortje there? MR RADEBE I don't remember seeing him, I remember that we contacted each other through the two-way radio. MR HATTINGH Mr Chairman, I have no further questions, but Mr Radebe has a written statement which was written out by his wife at his request, or at his dictation, which he has requested me to read to the Committee. May I do so after the Committee members have asked their questions. NO FURTHER QUESTIONS BY MR HATTINGH CHAIRPERSON Thank you Mr Hattingh. Adv Gcabashe, do you have any questions? ADV GCABASHE Yes, thank you Chair. Mr Radebe, when you were sitting in the van outside the bank, you spoke to Mr Nortje, the idea of abducting Japie, whose idea was that? Did you say to Nortje "why don't we just abduct him", or did Nortje instruct you to abduct him, which is why you followed him? Help me with that. MR RADEBE I followed Nortje's instructions. ADV GCABASHE Did you at any stage mention the abduction to the other people who were in the panel van with you and discussed the idea, before you finished talking to Nortje? MR RADEBE I talked first with Nortje that Japie was negative. ADV GCABASHE Thank you. Thank you Chairperson. CHAIRPERSON Mr Malan? MR MALAN No questions, thank you. CHAIRPERSON Just one question, Mr Radebe, you said that in your career at C1, Vlakplaas, you were involved with many interrogations, is that correct? MR RADEBE That is correct. CHAIRPERSON Can you recall any cases where people were brought to Vlakplaas for interrogation and were then released after the interrogation have been completed? MR RADEBE That happened at the offices of the Special Branch, but at Vlakplaas, I would only help when we arrested a member of the ANC, then we would try to recruit him to be a member of the askaris. CHAIRPERSON If you couldn't recruit the person? MR RADEBE (No interpretation) CHAIRPERSON You say he would be charged? MR RADEBE (No interpretation) CHAIRPERSON Any questions arising? FURTHER CROSS-EXAMINATION BY MR LAMEY Just one question arising from Adv Gcabashe's question. Mr Radebe, it is possible, you wouldn't know that there could have been also another kombi or another vehicle, apart from your vehicle and that of Nofemela's Jetta, also in Krugersdorp on that day? MR RADEBE That may be possible. MR LAMEY It is possible that Mr Nortje could have spoken to those black members first before the decision came to abduct? MR RADEBE He did not answer me immediately, he said to me I should wait for a while. MR LAMEY He said you to you should wait for a while, he was coming back to you? MR RADEBE That is correct. MR LAMEY Did you gather that there was some ... ADV GCABASHE He didn't take - you were just finishing your sentence. MR RADEBE After 20 minutes then he responded, he came back to me then, that we should abduct Japie Maponya. MR LAMEY So did you gather that there was some conference or discussion about that, before the decision was made to abduct? CHAIRPERSON I mean, we've got the period of time. MR LAMEY I leave the question, thank you. NO FURTHER QUESTIONS BY MR LAMEY ADV GCABASHE Sorry Chair, just on that point, the Josini people essentially were involved in this Japie Maponya abduction, yes, the same team that was at Josini, that worked under Nortje was involved in this abduction, yes? MR RADEBE If I remember well, that is correct. ADV GCABASHE We have heard of all the members who were there, were there other members, we have heard of Nortje, Van der Walt, Fourie, yourself, Mosiane, Nzimande, Nofemela and Mbelo essentially, Jeff Bosego. Were there other members who were at Josini, who were not here with you or who are not part of the group that I have just mentioned? MR RADEBE That is correct. ADV GCABASHE How many, just numbers, don't give me the names, just roughly, how many more? MR RADEBE I am not sure, but I learnt from Eric that he was in Krugersdorp, but I did not want to find out as to whether who are they because we used to discuss that my friend, I am going to Mafikeng, then I would tell him I am going to a particular place. ADV GCABASHE He was at Krugersdorp at the same time that you were abducting Japie? MR RADEBE They arrived on the same day? ADV GCABASHE Thank you. CHAIRPERSON Thank you. Mr Hattingh, would you like to read that statement now? MR HATTINGH Mr Chairman, I have looked at it, I have a bit of a problem with the handwriting, but I will try. It reads "From Simon to the Maponya family. It was a dark two decades of violence between people who were born in the same country and was killing and hurting each other. You, the Maponya's suffered much. I, as I sit here today, have forsaken my duty to protect Japie Maponya when it mattered most. How and why, we have come to such a phase in this country, I cannot even understand myself today. May the tale of Japie Maponya forever in this country, prevent our citizens to degenerate to a level of ever killing each other again. I support the amnesty process and also like to have this Committee to underwrite an action of reparation to the family ... (tape ends) ... Japie Maponya did not die in vain. He will forever be the reason why any person who entertain thoughts of apartheid or discrimination or the State above the law, that person will turn around and not commit the acts as happened during the apartheid years, on both sides of the spectrum." CHAIRPERSON Thank you Mr Hattingh, thank you Mr Radebe, that concludes your testimony. I see we have just gone beyond eleven o'clock, but we will now take the tea adjournment, thank you. WITNESS EXCUSED COMMITTEE ADJOURNS CHAIRPERSON Mr Hattingh, do you have any further witnesses to call? MR HATTINGH No Mr Chairman, no further witnesses. CHAIRPERSON Mr Wagener, any witnesses to call? MR WAGENER No Mr Chairperson. CHAIRPERSON Mr Ramowene, any witnesses? Mr Lamey, any further witnesses? MR LAMEY No further witnesses, thank you. CHAIRPERSON Ms Bridjlall? MS BRIDJLALL Thank you Chairperson, Mr Andries Maponya, who is the brother of Japie Maponya, would like to make a statement to the Committee. CHAIRPERSON Thank you. Sorry, Mr Maponya, what are your full names please? What are your full names? MR MAPONYA READS STATEMENT TO THE COMMITTEE My name is Andries Etimeleng Maponya, almost 38 years old, and I was born in Kagiso, Krugersdorp as the youngest brother of Japie Kareng Maponya. CHAIRPERSON Thank you Mr Maponya. Do you just wish to make a statement, is that correct? MR MAPONYA Yes, maybe first I would like to greet the Amnesty Committee and all the representatives, including all the applicants, and I am also being accompanied by Akanyang Daniel Maponya, that is the elder brother to both Japie and myself and the youngest brother, that is Kenneth Maponya and my elder sister, that is Julia Maponya. CHAIRPERSON Thank you Mr Maponya. MR MAPONYA Maybe I shall firstly start with the reason of coming here in the Amnesty Committee, that was with the expectation that we may get the bones of Japie Maponya and also to get clarity on the statement that will be made by the applicants. My first statement is basically on the last message that was given by Japie Maponya in 1985. Japie Maponya came in Macau, Pretoria, to visit, that is myself, the youngest brother, Kenneth and Francis Maponya, that is the deceased mum. He came to Pretoria just to tell us that should it happen maybe he went missing, we must be aware that the Security Branch is held responsible. The reason being that he is being given the last chance to decide whether is he in a position to can work with them or not, and he made it clear that he is not interested to work with the Security Branch. It simply means that we should expect what he says. He further says to us "please make sure that you won't be bothering yourself to seek for me, as this will jeopardise the life of the family members", and we make it clear to him that "look, we are not going to seek for you, until such time that the situation itself, allow us to seek for you." Immediately when we miss his whereabouts, we knew already what happened with Japie. After Japie went missing, the whole entire family started experiencing the police harassment, the coming in and out of police members and even the informers, all those were identified as strange people in the family, coming, pretending as if they suspected Japie to be a member of MK and I remember they usually say "he might be gone to exile", that is why they are desperately in need of him, they want to arrest him, but we knew the story already. We knew those were lies. Maybe it will be also very much important to explain Japie the person, we talk about, his character exactly. Japie, I think he died at the age of 26 in 1985. He was a devoted Christian of the Zion Christian Church and his role in the church, he was a leader of the male choir which is called Bonkethi, that is the Sotho name, that is the Scotch Boys. Japie was the most reliable person, trustworthy and he remained loyal at all times, he was a great breadwinner of the family itself and he also looked after his youngest brother, that is myself Andries and Kenneth, especially when it comes to clothing, school uniform and tuition fees. I believe today, myself and Kenneth, we have never even gone far, even to the tertiary level, due to the fact that Japie was denied the right to can look after ourselves and he was also denied the right to can live even to can build up his own family and have his own children. I heard even the misinformation that was made by Mr Mosiane yesterday, I was just feeling like flying, jumping, if I had also plumage, I would have flown, jumped next to him and said no, this is wrong. You are supposed to come and ask the family about Japie's background. I think Japie was the most a-political person, he was less interested in politics. We wouldn't even make any attempt to can recruit him because he was less interested and we knew also he was not even interested to work with the police. I also listened to some of the statements from the applicants concerning Japie being negative to can work with them. I think they are supposed to make it clear that Japie was very positive to can bring his own feeling, because he stood firm to his own beliefs and he had his own personal decisions to can make. He was less interested with working with the people, meaning that he co-operated with the people by telling them only the truth, that he is less interested, and he doesn't know the whereabouts of Orderele Mishack Maponya. It is true, if Japie had seen Orderele Maponya, maybe one of the days through those years of the involvement of the deceased Orderele, I think Japie would have also told these people "I saw him, but there is nothing I will do to can take him to you", you see, so he remained loyal and I believe we also admired him the most for his behaviour, his loyalty, his reliability and trustworthiness. I will also be very much pleased to can give the little background of the story that was once given by our father, also the deceased. He is the very person who came to the TRC, who attended even the court that was on the trial of Mr de Kock, Joseph Maponya, that is our father. Joseph Maponya, as our father, once told us about the police harassment and the psychological torture he came through. That is the most horrible and terrific story he ever told the family. He told us that he was once being taken to the Manning area of West Rand for about three to four days and nights of torturing, being threatened to be killed if he doesn't tell the police where Orderele is. Forgetting not that the very same father, Joseph, is the father who went to the local Kagiso police station to report his son went missing. As usual, I think it is the criteria that is being used by each and every residential families, when you see that your son went missing, you go to the police station and ask for the assistance from the police, not knowing that he was putting himself into hell of trouble, that is exactly what happened. He experienced the harassment until also his death and I remember the last time he told me "my son, I feel very exhausted because of this process and I am no longer optimistic enough that I will get my son's bones, but maybe, seeing that you are still very young, a minute if I can pass away, then you will have to take over". Fortunate enough my mum took over when my father was exhausted during that process and my mum is also the deceased, she had also heart problems before she died. Seeing that I promised my father to can take over, I think this is exactly what I did, I never relaxed. I wrote letters to the Minister of SAPS, letters to the Minister of Defence because we usually seek for the bones of the two brothers, that is Orderele Mishack Maponya and Japie Kareng Maponya. They have not yet been buried by the family itself, so hopefully we want to see ourselves burying these two people. We never expected to be told about the place where Japie was killed, but just to be given the bones. One other story which I remember exactly, my father was invited for the unveiling monument of MK just near the Kagiso police station, next to the library. My father made the most touching statement, he said he is happy to see this stone being unveiled but the touching part of the story was that the stone itself, underneath, it is still empty, there is no bones. He will urge that his sons' bones could be given to him for the reburial and he knew exactly that Japie was not involved in politics, only Orderele was involved. When I talk of my father, I also talk about a person who was also a Priest to the Zion Christian Church, he also remained loyal, he was a father, most caring father. My mother, Francis Maponya, also experienced the police harassment, she went in and out of prison because of these people seeking for Orderele. She experienced even assault during the most difficult times like in the year 1985. My mother couldn't relax in life, including the father too. I remember my mother was also forced to leave Macau to Krugersdorp where most of the sons and daughters are living, due to the fact that she cannot relax. When she went to Macau, she thought she is actually going to relax in life, but unfortunately that was the most bitter process she went through. She decided to go to Kagiso, so as to can be nearer the sons and daughters, but still it was the same, she was arrested with the sons and daughters. That is another experience in 1988, where I was also arrested. Most of the family members, I don't think any single member who was left out during that time, in 1988. It was exactly like 1985, most of the family members were arrested during that time, and most of them were taken out after a couple of days, couple of months. In 1988, myself and the two cousins, that is Sterodumane and Opakrameqwa, we were relocated to Robben Island due to the fact that (indistinct) we were involved, I've got no doubt about that. So, that is why I can give a clear statement that Japie has never been involved in politics, he was even less interested about what we were doing. As the representatives of the family, being the family of the Maponya and Shakom, we listened attentively to all statements made by the applicants, and we also tried to can at least identify the people who have been involved in the abduction, in the interrogation, the handover of Japie to Vlakplaas, I even listened to Mr Le Roux when he said the very same man, Japie, may have assigned himself a death sentence. It is most touching, you feel very painful when you listen to such statements. Even the killing of Japie, we listened to the Unit that killed Japie exactly in Swaziland, but we thought all these people at the end of the day, they will tell us where the bones are, because that is exactly what we came for. Unfortunately we couldn't hear even a single person from all the applicant saying "at least I know where the bones are." It is clear that we may go back home empty-handed. It makes it difficult for the family to can even respond, but the word, maybe the statement which one could make now is that at the moment, we feel very objective enough to the applicants to be granted amnesty, because this simply means that we are not going to be given the bones, now that we cannot forgive all these people who were involved in the whole process of what I have made mention of, the abduction, interrogation, brutal assault, handing over of Japie to Vlakplaas, this was making it difficult for Japie to can even survive and even those who killed Japie. We do not forgive all these people, it doesn't show clearly that they are interested to give us his bones. I wish to make it clear to all the applicants that they also had a chance, a very long chance, I think ever since from late 1980's, where they started killing Japie, the very same first day, day one, where they killed Japie, until from my mother, let's say until 1993, they had the chance to can come to Japie's parents and say "we ask for forgiveness", but they lost that chance, because the mother and the father are already the deceased. They died desperately seeking for the two people. I am very sorry for all the applicants to can receive such a statement from the family. This is the most Christian dominant family which is supposed to look at the merit of all these cases, so as to can divide all these people because they seem to be not the same. You look at the merit of the case, I can make an example, just a sweet example, because I have been from prison, I have been from court, I have been trialed, I spent almost nine months in detention in 1988, so it is clear that I have a little experience about the court. I think a person who assaulted another person, cannot have the very same sentence like that one who actually killed the particular person, so I think this would have given us a chance to can sit and discuss all those issues as a family and come back to this hearing, the Amnesty Committee, so as to can give our clear feeling concerning what we listened to attentively. I think I am very much happy to be given this opportunity and I will like to thank from the very first beginning, I will like to thank the Justice Department, the Harms Commission, the Goldstone Commission, the TRC including its Investigating Team and the Amnesty Committee itself, even all the legal representatives who are presently here. It shows clearly that in the democratic society, there is justice at all the time. It shows clearly that you were also putting energies and efforts to can ensure that there is justice in this country. That is how I shall have to make this vote of thanks to you. Thank you. CHAIRPERSON Thank you very much indeed Mr Maponya, we really appreciate the fact that you have come forward today and have made your statement. We all here, realise that your family has gone through terrible - experienced terrible tragedies in the past and we all express our sympathies to the family. We appreciate your words of thanks that you have given and your positiveness in addressing us, thank you very much indeed. Ms Bridjlall? MS BRIDJLALL Nothing further, thank you. CHAIRPERSON Ms Lockhat? MS LOCKHAT Nothing thank you Chairperson. CHAIRPERSON Yes, that then concludes the testimony that we will be receiving in this hearing. Just two stages remain and this is the submissions to be made by legal representatives and then of course the decision to be made by the panel after hearing those representations at some stage in the future. I don't know if the legal representatives wish to, as discussed yesterday, sorry, we said that we will hear oral argument and then that may be if desired, supplemented by written argument at a later stage if anyone wishes to do so. I don't know if you want to start argument right now or after lunch. MR VISSER Speaking for myself Mr Chairman, I would prefer to start now, after lunch I might be dead. CHAIRPERSON Yes, well, we can start. Have you worked out the order in which you want to argue, would Mr Visser start? MR VISSER IN ARGUMENT Mr Chairman, I am designated to start it seems. May I hand up to you what Ms Lockhat fondly refers to as a mini-thesis, another one of my mini-theses. Ms Lockhat was clearly not exposed to us at the beginning of the amnesty process, she would have been delighted by how short this document has become. Mr Chairperson, I have put down on paper some thoughts, I have divided what you have before you, in three parts. In Part A, I briefly address the political background, the conflict of the past; in Part B, I deal with some legal issues. I do not intend to spend much time on it Chairperson, I will run through those two parts with you very briefly and swiftly and then in Part C, I will come to the facts Chairperson. Mr Chairperson, I have given you as many references as I could in order to substantiate statements which we have made. Le Roux' application is in Bundle 1(c), page 658 to 707. Of the applicants before you, Mr Le Roux and Mr de Kock have testified that they agree with the contents of Exhibit A which is before you Chairperson. The purpose as I have stated before of Exhibit A was an attempt to shorten proceedings in order to avoid witnesses having to give all of that evidence each time a witness is called. We believe it has served that purpose Chairperson. At this stage of the proceedings, while you have our written argument before you, it becomes less important because much of what is in Exhibit A, has been incorporated in the document now before you, and I will briefly refer you to it. What is of some importance Chairperson, is that Exhibit A and by necessary implication then also the evidence of Le Roux and de Kock incorporates the evidence of Mr Vlok and Van der Merwe in the Cronje decision Chairperson. The original Amnesty Committee made mention of that evidence in the Cosatu and Khotso House matters and it expressed the opinion that applicants in future could just refer to that evidence. Unfortunately it hasn't been made clear whether all of that evidence or parts of that, have been accepted by the original Amnesty Committee, we would rather like to think that all of it has been, but that hasn't been unequivocally stated and unfortunately we still find ourselves in the position where we have to deal with some aspects upon which no decisions have been handed down by the Amnesty Committee. I heard along the grapevine Chairperson, this may change in future, shortly in future, with some other decisions on its way. We certainly hope that that might happen and that the issues which we again address today, might be addressed in decisions of the Amnesty Committee because we have no doubt in saying and thinking that it would accelerate the process enormously if that would happen. Before that happens Chairperson, we have to deal with some issues again and may we turn to Part A, page 3, I will return to paragraph 6 later Chairperson. We refer to Annexure A and what we deal with here is the personal background and circumstances of most policemen, who have appeared before you and I have no hesitation in submitting to you certainly, the case of Mr de Kock and Mr Le Roux was addressed by the original Amnesty Committee, page 4, where in Cronje's application, the Amnesty Committee said and I leave out some words Chairperson- "... almost all policemen giving evidence before the Amnesty Committee, referred to their background, almost all policemen appearing before 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." We say Chairperson, that as far as those people who have subscribed to the contents of Annexure A, of Exhibit A, that they found themselves in the same position and we would ask you to bear that in mind as background to the acts, omissions or offences committed by them. Mr Chairman, coming to page 5, we have again dealt with the conflict of the past, accentuating certain aspects of it. It seems that the fact of the political nature of the conflict of the past, is sometimes not given sufficient consideration in amnesty applications. We say Chairperson, paragraph 12, the conflict was essentially a politically driven affair. Human rights, political voting power, participation in governing the country, education, housing, quality of life, employment reservation, discrimination and the like, all formed part of the political basis of that conflict. And then Chairperson, we have given you a few quotations which we believe may be good quotations in order to show the background. We refer to Major Williamson which says - "... war is to be regarded not as an independent thing, but as a political instrument." Over the page, at page 6, it was - "... an expression of the social and political conflict of ideas". We refer to pronouncements by the Pan Africanist Congress, Chairperson, Brigadier Mofokeng and further down, at page 6, at the foot of the page, the ANC itself accentuating and stressing the point of the political nature of the struggle and in fact, it is stated, perhaps I should just read it, it is stated in clear words where it says - "... in its strategy and tactics, the ANC put politics at the fore and it defined itself and its army, Umkhonto weSizwe as an instrument of a people in political motion. The barrel of a gun, as one of the means and not the means, least of all, an end in itself." Chairperson, the reason why we mention this again, is from the perspective of an interpretation of Section 20 of the Promotion of National Unity and Reconciliation Act, to which I will refer as the TRC Act, because it somehow gives colour to the requirement that the act, omission or offence has to be one associated with a political objective. Chairperson, if one then looks at the political nature of the conflict of the past, and you place an act, omission or offence in that period of time, which is not an act, omission or offence which falls under one of the exclusions, committed for own personal vengeance, etc, being disproportionate and so on, then really Chairperson, we submit that the logical inference and interpretation which is to be placed upon an act associated with a political objective, is such that once it is something that happened within the framework of the conflict of the past, you are really almost there. It is a question then really only of whether there are facts or circumstances in any particular case which tend to show that something else was present as a result of which amnesty ought not to be granted. Chairperson, paragraph 15, some important words have fallen away there, may I just read to you, Chairperson, you will forgive me if I am not firing on all cylinders this morning, paragraph 15 says - "... it is submitted that an act, omission or offence which was not committed for personal gain or from personal spite, malice or vengeance ...", that is a reference to Section 20(3) - "... will by definition be an act, omission or offence associated with a political objective if ..." the words that fell out - "... committed during the conflict of the past". We would just again try to put a fresh perspective on that approach Chairperson and ask you to consider if that isn't perhaps the correct approach, not thereby saying that you have not been following that approach, but perhaps it may do good just to repeat it. We say Chairperson, that this is the correct interpretation, is supported by the fact in normal course of events, the taking of one life cannot be held to be justified, and of course, it can't, but in the interpretation advanced Chairperson, however, the legislature made provision for amnesty to be granted where lives were taken because the conflict of the past was a war situation and in wars, lives are lost. This ties in neatly with the further requirement that the result of the act, omission or offence, must be proportionate to the end which was sought to be achieved. Therefore Chairperson, as hard as it is on the ear, within the framework of the Act, even the killing of people is what the legislature intended to be visited with amnesty in if all other things are equal. ADV GCABASHE Mr Visser, I think I am losing you somewhere here. If your proposition in paragraph 15 is correct, why then would Section 20(3) - sorry, give me a minute - you know the context, all that bits of criteria, why would the legislature bother to include that, if that, this is why I am saying, maybe I am losing you somewhere. If this is what you are saying, you seem to be excluding the context, all of these other factors which we are supposed to take into consideration in determining a political objective or am I pre-empting part of your argument? MR VISSER No, I have finished with this part of the argument in fact, Chairperson. No, no, I tried to make it quite clear that there are exceptions and those are the ones, and I referred to subsection (3), clearly they are requirements, they are guidelines which have to be used, obviously. No, no, nothing that I stated must be taken to detract from that, no, clearly not, no, no. Chairperson, very briefly, we know what the history is, where the struggle came from, we deal with it at page 8, paragraph 17. You have heard it so often, I am not going to repeat it. It was at the bottom of that page, a war of the entire nation in which the entire nation was involved, Chairperson, and the effect of that on members of the Security Forces, we deal with briefly in paragraph 22 and we say that as the war unfolded, members of the South African Police in particular, experienced an ever-increasing departure from their normal duties of conventional policing. It came to be expected of policemen and women to act as soldiers in a conventional war situation without the benefit of martial law and that was that evidence which was given by Gen Van der Merwe, both in his written presentation as well as in his evidence before the Amnesty Committee in the Jack Cronje amnesty applications. Chairperson, we refer you in paragraph 23 to the fact that the Amnesty Committee gave expression to this fact of the conflict which escalated into a war situation, we give the reference. We say this is in consonance with other evidence, I am not going to read it, we simply give you the references Chairperson to show that that is a generally accepted proposition. We refer to Gen Van der Merwe at page 10 and then the quite beautiful passage quoted by Major Williamson in the Armed Forces Hearing which I am sure you will allow me to read to you. "... It is therefore not only the task of the members of the Security Forces to examine themselves and their deeds, it is for every member of society which we served, to do so. Our weapons, ammunition, uniforms, vehicles, radio's and other equipment were all developed and provided by industry. Our finances and banking were done by bankers who even gave us covert credit cards for covert operations, our Chaplains prayed for our victory and our universities educated us in war. Our propaganda was carried by the media and our political masters, were voted back into power, time after time with ever-increasing majorities." Chairperson, in this war situation, what would otherwise clearly be regarded as an illegal act, acquired a legitimacy or legality in the minds of members of the Security Forces, in addition, a few instances which have come and may in future come before the Amnesty Committee and which we say this is again one, the present one, certain members of Security Forces looked up to their Commanders and leaders for direction, and as it now appears, some of them read instructions or approval into words and conduct of such Commanders and leaders which were not necessarily intended and we have that precise situation Chairperson, with Mr de Kock and Mr Le Roux, in the present case. Adriaan Vlok said at page 104 in the Cosatu House evidence - "... from information which is now being 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 reasonable presumptions seen from their perspectives of what I said or did." Chairperson, I will return briefly to this matter later on when we deal with the facts. We know what the ANC/SACP alliance's strategies and tactics were Chairperson. We know who were legitimate targets, the creation of no-go areas which we deal with in paragraph 28, we deal with the sabotage phase and how the target selection changed as time went by, until black politicians and members of the Security Forces became the prime targets of the ANC and we say, Chairperson, the reason why we mention this is that this could only have strengthened the resolve of members of the security forces who considered it their duty to fight against such actions, programmes and initiatives which were aimed at achieving the stated objectives. We know in paragraph 34 Chairperson, what the strategy of the government and the National Party was and how important a communist take-over was held out to be, we give you a reference to the evidence of Mr Vlok in the Khotso and Cosatu House amnesty application, at page 13 Chairperson, you can read it in your own good time. And then perhaps paragraph 36 should move Chairperson, I am not going to make a big point of it, it was really from the South African government's point of view and from the police point of view, a reactionary war although it did change later when it became necessary to take more proactive steps for the police. Chairperson, what is important and which must have played a big role in the minds of the Security members, I mention at page 14 paragraph 38, and that is the vast Security network of Security structures that were instituted, expanded and controlled to deal with the revolutionary onslaught and the actions taken at the behest of these Security structures Chairperson, of which we were all aware, it wasn't a secret that there was hot pursuit operations and cross-border operations, etc. What we didn't know about of course, is what was going on right under our noses. We say Chairperson, the operational structures referred to in paragraph 40, from time to time of necessity utilised in the proactive fashion in cases where structures concerned their personal agents, informers, were faced with the gravest physical danger, etc. Chairperson, I am going to go very swiftly over the issues. We deal with the SADF and the restricted role it could play at page 15 and how the, particularly the Security Branch and the Special Task Force of the South African Police became really the last line of defence. We address that in paragraph 44, 45 and 46. The position of policemen at page 16 speaks for itself Chairperson, there is nothing that is contentious in that in our submission, and nothing which requires any explanation. We give you the views from the submission of Gen Van der Merwe at page 17, talking about the culture that was changed, it was disturbed, perhaps I should just read it Chairperson - "... members of the South African Police were deployed on all terrains and the training and application of police." I have forgotten that this is being translated, I am terribly sorry, I will go a bit slower. "... members of the South African Police ..." Oh, I am told that they have a copy Mr Chairperson. "... members of the South African Police were applied on all levels in the training and application of the police and it was similarly applied. This necessarily created a great disturbance in the culture which had formerly been the basis of police training. The application of violence and the fact that the police's conduct had to be aimed at bringing the accused before the Court, meant that conventional warfare had to replace the principles of guerrilla warfare." As supporters of the National Party, the government and the police, policemen and women Chairperson, were compelled to execute commands and to issue commands which were directed at the enemy in order to counter and stop the onslaught. I refer to the question of need to know Chairperson, and the lengths to which policemen would go to follow orders and to do what they believed was part of their duty to stop the onslaught and I refer to Gen Strydom at the bottom of page 17 where he was asked in the amnesty application concerning MK George and MK Brown and he said - "... I would have swum to Russia to execute the order." Chairperson, going on to paragraph 57 we say that by giving orders and obeying them, policemen and women did what they believed to be their duty in combating (there is a spelling mistake) the revolutionary onslaught. Chairperson it is also important to realise that perhaps contrary to some public popular opinion, Security legislation was simply insufficient to deal with the revolution and that very fact, gave rise to the consequence that some members of the Security Forces, found themselves inevitably in situations where the only solutions to some problems lay outside the ambit of the law. Gen Van der Merwe said in the Armed Forces Hearing Chairperson - "... it was not possible to contain this whole situation through Security legislation. On grassroots level the people became aware of the situation and they decided that against this background and where these words (that is now the use of phrases such as eliminate, etc to which we will refer shortly) also played a role and other factors to be able to contain the situation, other methods and actions had to be used and that is why we used harsher actions." We say Chairperson, that the Stanza Bopape matter that you will remember very well, was one example of a situation which arose quite outside the control of some of those applicants where they were compelled because of the situation prevailing at the time, to act illegally. And then of course, at page 19, a very important aspect, one about which the Amnesty Committee in the Jack Cronje decision also made mention, was the pressure that was exerted on members of the Security Forces, both from politicians and as well as the business community, the farming community and in general Chairperson. The influence of speeches where it was blatantly spoken on television and we remember it, about terrorists being weeded out, the frequent public use of expressions such as eliminate, take out, remove from society and the like; the fact that special lectures, courses and seminars were held during which policemen were briefed on the extent of the onslaught and what was expected of them to counter it Chairperson. All of this, we say in paragraph 64, served to instil in the minds of especially Security Branch policemen, the seriousness of the situation and the need to act and we say that in that process, members of the Security Forces cannot be blamed for believing that their actions and omissions committed to counter the revolutionary onslaught, were authorised, expected of them, and fell within their expressed or implied authority as policemen. The original Amnesty Committee, Chairperson, expressed it in the amnesty application decision of Brigadier Cronje, at pages 223 as follows - Mr Adriaan Vlok in the COSATU House gave a beautiful little piece of evidence when he said - "... I want to talk about pressure, I would like to give you my perception of this. Langenhoven said in Skaduwees van Nasaret (I am only reading the last bit of that) in one way or another, you must maintain authority, Rome does not expect explanations from you, but results." Chairperson, we go over the page, there is a quote from Gen Van der Merwe, Exhibit P46. Incidentally that is part of the papers before you, I don't have at my fingertips the page number, but it is part of the Bundle before you, Exhibit P46. My Attorney will look for it and I will give it to you in a moment - it is Bundle 2(a) Chairperson, and it is from page 38 onwards, that is Exhibit P46. Chairperson, page 22 speaks for itself and if I may, I would glance over that and perhaps go on to page 23. We deal there very briefly with the issue of people caught in the cross-fire and innocent bystanders, I am not going through that with you Chairperson, apart from saying that it is a fact that we know that in the conflicts of the past, a lot of innocent people were affected. Japie Maponya is a good example of somebody who was by all accounts, as his brother has been at pains to tell us here this morning, a person who had nothing to do with the conflict and yet, had to pay the highest price. We deal with that Chairperson, and we will then, if we may, go on to Part B, statutory or legal issues. Over the page at page 26 Chairperson, we deal with the requirements of subsection 20(1) that the application complies with the requirements of this Act and then we deal with some of the requirements at page 27, act associated with a political objective and we have already dealt with that Chairperson. We want to just refer to a slightly different angle on that issue right now and that is the question of the test to be applied, whether it should be subjectively, the Norgaard principles in the decision of Justice Kees van Dykhorst in Rapollo's case which we mention at page 32, where you can find the reference, it is 1993 (1) 680 and what we are at pains here to show Chairperson, is that the TRC Act provides in Section 20(4), it says that - "... in applying the criteria contemplated in subsection (3), that is of Section 20, the Committee shall take into account the criteria applied in the Acts repealed by Section 48 ..." and those Chairperson, I have stated for you in paragraph 94. The point of this is very briefly simply this, that in the previous indemnity legislation, the test was a subjective one, it had to be an act with a political objective, whereas our Act requires an objective, an objective test. Coming back to what Commissioner Gcabashe said just now, that does not detract from the fact that there are some subjective elements and we mention them in paragraph 124, particularly (a) and I think it was (d) or (e), but there are two of them that are clearly subjective. The point here being, my Attorney tells me it is (f), Chairperson, the point being this Chairperson, that the requirements of the TRC Act are less onerous than were the requirements of the previous legislation which had been replaced and the point of that Chairperson, is that there is on record pages and pages and pages of brief facts, setting out what people obtained indemnity for, and truly it is an eye-opener Chairperson, when one starts reading that. I understand that the Amnesty Committee has a full copy of the indemnities that had been granted with a brief statement of the facts and the point being that if one looks at what indemnity was granted for by the then State President, it is almost unbelievable that you can refuse amnesty for anything else. The point being simply this Chairperson, our Act makes it easier. Chairperson, we deal very briefly with the requirements of the various subsections and starting with Section 20(2)(a), I must confess it was too late last night for me, to make any sense, paragraph 126 is not entirely correct, it refers to members and supporters of a liberation movement which is entirely incorrect. That subsection Chairperson, reads as follows the Committee, after considering application for amnesty, if it is satisfied it shall grant amnesty in respect of, and then it says - "... to (a) any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or movement, bona fide in the furtherance of a political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation or liberation movement." Chairperson, that contains all the possibilities and with respect, it is perhaps a subsection which we haven't been giving the attention that it deserves. You have heard again in this case Chairperson, from Le Roux how what he did, he thought was in order to sustain the National Party against the struggle and Chairperson, we would simply submit that subsection 20(2)(a) was meant, was intended to be and is in fact applicable to members of liberation movements, members of or supporters of political organisations, etc, etc. It is a very wide provision allowing for locus standi of members. Subsection (20)(2)(b) Chairperson, we know the problems which that subsection creates, it says that a member of the Security Forces inter alia can obtain amnesty if what he did, his act, omission or offence apart from complying with all the other requirements, was an act, omission or offence which was committed bona fide with the object of countering or otherwise resisting the said struggle, but it has to be performed within his duty, within the line of his duty and in execution of his expressed or implied authority and as Commissioner Malan was at pains again to remind us all, when Mr Le Roux gave evidence, there was no authority for policemen to commit unlawful acts or offences, we know that. Once that is so, one has to ask oneself what then is the meaning of 20(2)(b) if there wasn't an Act to say "thou shalt kill thy neighbour" and he goes and does that, does that mean that no applicant could then rely on subsection 20(2)(b) and as we have argued before Chairperson, the Committee has to do the best it can to interpret it in this subsection as with any other provision of any statute in order for it to make sense. The legislature could never have included subsection 20(2)(b) for it not to make sense and the best interpretation which we are able to submit to you, is that what that subsection deals with is it deals with, when it refers to within duty, the duties of policemen and their mandate, it must be referring to those act, omissions or offences which were committed by them as policemen, not as private citizens, while they were busy doing what they thought or believed were their police duties, although that was unlawful and an offence, that is the only sense you could make of subsection 20(2)(b) because we know that the Act says you can only get amnesty for offences and delicts, so it had to be with that intention. I see you received a note Chairperson? CHAIRPERSON The transcripts of the evidence will be brought to Durban on Monday, 26th of July, that is the transcript of the evidence because we will be in Durban then, so it seems that it will only be available on Monday, the transcript. MR LAMEY We might have to pay excess charges on the flight for all these documents. CHAIRPERSON Yes, that is the note, I have just received it. MR VISSER Chairperson, we deal with that, what we refer to as an inherent paradox in subsection 20(2)(b), we deal with at page 31 in three brief paragraphs and in which we set out the submissions which we have just advanced to you. Subsection 20(2)(f) Chairperson, we submit must be understood that that allows a person to obtain amnesty where he bona fide believes that he was acting within the scope of his duties and within his expressed or implied authority, where in fact, he wasn't, because that is the only sense it makes. It is only when it objectively is clear that he didn't act like that, but he bona fide believes, that is of course the subjective element. That is (f) and then Chairperson, in the present case, in our submission, subsection 20(2)(g) is also relevant and I must apologise, that I left that out. CHAIRPERSON Is that proportionality? MR VISSER No, no, Chairperson, that, I will come to that, but 20(2)(g) deals with an association with the act, omission or offence for which amnesty is sought. CHAIRPERSON I am aware of it. MR VISSER Yes. It says "... any person who associated himself or herself with any act or omission committed for the purposes referred to in paragraphs (a), (b), (c), (d), (e) and (f)..." and it did occur to us Chairperson, that from the point of view of the evidence of Le Roux, that this subsection is clearly applicable. I might and it is a coincidence that you were asking me about proportionality because I had been thinking for the past number of days, how the issue of proportionality, the requirement of proportionality is applied when you come to 20(2)(g) and frankly, I don't know Chairperson. It doesn't seem as if the other requirements in the, as far as the other subsections are concerned, can be applied exactly like that, clearly as many of those requirements and tests, must still be applied, but one might reach a stage where you might say well, because he only associated himself with that, I really can't expect that he must also have complied with a motive to obtain a particular political objective for example. It may be, it may be that in certain circumstances, an applicant may come to you and say you know, my Sergeant told me to go and shoot the man, he never told me about, told me what, perhaps this is not a good example, but he never told me why, I went and I shot him. Now later, it turns out that this man was an MK Commander, so there is a huge political objective, of which I was totally unaware of at the time. The same principle and frankly Chairperson, I am afraid I can't assist you much further than to say that clearly, you will apply as much or as many of the requirements that you would have applied under (a), (b), (c), (d), (e) and (f), also to (g) but there may be practical problems, but those will be problems relating to facts and circumstances. Other than that Chairperson, we don't deal any further with 20(2)(g). Just very briefly because it has come up before, I am certain that it won't come up in the present case, we deal also with the question of execution of illegal orders and behold the old perception that a soldier is entitled to refuse to obey an order which is clearly illegal and very briefly, we refer to Rapollo's case which was the forerunner of the present, our present Act, the TRC Act Chairperson, in which it was made quite clear that the illegality of the order is totally irrelevant. As far as Mr Maponya was taken into Swaziland where he was murdered Chairperson, the issue of international competence of your Committee's amnesty orders, may be raised, we submit Chairperson, that there is a long argument about that, and I may tell you that you may be aware of it, that written opinions have been given espousing different points of view, but at the end Chairperson, of the day, our Act, the TRC Act itself speaks of acts, violations of human rights committed within or outside the Republic. In the introduction to the Act Chairperson, and it speaks ... CHAIRPERSON Yes, it is not really for this panel to concern itself with the effects of its decision. MR VISSER Absolutely. CHAIRPERSON Whether they might be recognised in Swaziland or overseas. MR VISSER That is exactly the point, and that is the point we make, the submission we make in paragraph 143, exactly what you have just put to me Chairperson. What an applicant makes of his amnesty and how effective it is in foreign countries, is none of your affair. Chairperson, if I may come to the facts, I have summarised most of the facts as far as I could gather them from my notes. Chairperson, I see it is quarter to one, I am just wondering whether you would be prepared to take an early lunch. CHAIRPERSON Yes, certainly, I hear that you are coughing and splattering and you perhaps need to have a break. MR VISSER Yes, I am sorry about that. We can start at half past? CHAIRPERSON Yes, if we could take the lunch adjournment now and start at half past one. MR VISSER I am indebted to you, Chairperson. MR RAMOWENE Can I just make one request? As I have said earlier on yesterday, that we will not be making any submissions, I would request Mr Chairman, to excuse me. CHAIRPERSON Yes, certainly Mr Ramowene, and I confirm having mentioned yesterday as well, with regard to Mr Mbelo, Mr Williams did say that he would be submitting written argument in respect of that applicant. So certainly, thank you very much Mr Ramowene for being here, you may be excused from further attendance. MR RAMOWENE Thank you. COMMITTEE ADJOURNS CHAIRPERSON Thank you, yes, Mr Visser? MR VISSER IN ARGUMENT (continued) Thank you Mr Chairman. My client, Mr Le Roux, has prevailed upon my not to try to emulate the great Caruso during the last act, so I will attempt to fulfil his wishes. Mr Chairman, the death of Japie Maponya, I am at page 35, was predated by certain events and circumstances. These events were associated with the political activities of Orderele Maponya. Orderele was the leader of an MK Unit which operated in the Vaal Triangle and Pretoria and we heard that evidence in the Stanza Bopape matter. CHAIRPERSON I don't think there is anything in dispute about Orderele being a member of MK at this particular hearing. MR VISSER No, it is in fact common cause, yes indeed Chairperson. We say Chairperson, that he was responsible for a number of explosions and there is a reference to a docket that was carried by the West Rand which we refer you to in paragraph 145. According to Mosiane who gave evidence yesterday, a team from Vlakplaas had already assisted in attempts to trace Orderele prior to the event of his abduction Chairperson. We want to draw the attention as I believe I put to him in cross-examination, this was before Japie Maponya's name became a feature in the investigations. Kleynhans stated that on the 27th of May 1985 Orderele was a party to the killing of Detective Warrant Officer Jacob Twane in Ramagodi, Bophuthatswana. The event caused a telex to be forwarded to the, it should be Divisional and not District, Divisional Commander of the Security Branch and that is Le Roux, West Rand, as well as other divisions of the Security Branch. Over the page, at page 36 Chairperson, the request contained in the telex was for assistance to trace Orderele and others connected to the murder, in order to arrest them. The fact that the Maponya family lived in Kagiso brought about the fact that attempts to trace Orderele were orchestrated within that area and that was of course the area of jurisdiction of Le Roux, the Divisional Commander. At the time, Joseph Maponya, Chairperson, was the father of Orderele, Japie and Andries who we heard earlier, had been a police informant since the 6th of May 1977, that reference is Bundle 2(a), page 214. He apparently became scratched on the 10th of November 1983, but was apparently reinstated as it appears from the last payouts which are reflected in Bundle 2(a), page 203, paragraph 4 and 5. Mr Chairman, in their search for Orderele, the Security Branch also spoke to Japie Maponya at some stage. This must have been after the 27th of May 1985 on all the probabilities. It appears that Kleynhans, who was Lieutenant in the Security Branch under Le Roux, had previously obtained information from Joseph that Orderele lived with his mother, the estranged wife of Joseph at Molatedi near Derdepoort in Bophuthatswana, Joseph had seen Orderele in November 1984 in the house of one Mpeki Kakayi. Joseph, upon his return to Kagiso, instructed Japie to visit his mother in order to determine the whereabouts of Orderele. Japie did so and upon his return, apparently informed Joseph that he had established that Orderele was staying with their mother, the reference is given. This information was conveyed to the Bophuthatswana Intelligence Service Chairperson, and reading between the lines, it appears that no information about Orderele was forthcoming from the Bophuthatswana Intelligence Service. After receiving the request to trace Orderele, Kleynhans decided to speak to Japie Maponya, this is the reference Chairperson, I have already made the submission. Japie was offered money to entice him to give information about the whereabouts of Orderele. During the conversation which Kleynhans had with Japie, he indicated that he did not like the idea of assisting the police to trace his brother because of the risk of possible retribution by Orderele and the ANC and you heard what Andries said this morning in that regard. It is fair to accept Chairperson, that by September 1985 no further information had been forthcoming about the whereabouts of Orderele. A telex dated 29 May 1985 informed the Security Branch Northern Transvaal and Security Headquarters of all this information which I have just referred to and we give you the reference in Bundle 2(a). A further telex was then received Chairperson, by Security Branch West Rand from Security Branch Northern Transvaal, in which further information regarding the murder of it should be Detective Warrant Officer Twane was divulged and it appeared that an LDV was hijacked as well as a Toyota Hi-Ace taxi, at page 38 Mr Chairman, and that according to descriptions received and fingerprints lifted from a house at Boikhotso, Orderele was positively linked. In that house, certain items relating to mini-limpet mines and AK47 rifles were discovered and confiscated and I don't want to pretend that I am referring to arms themselves. It had to do with oil and cleaning material, etc. We know that evidence, I give you the reference there, it is as page 701 to 703 in Bundle 2(a). This fresh information was brought to the attention of the Security Branch West Rand and it was Lieutenant Kleynhans, according to his affidavit, for the necessary investigation. It was believed that Orderele had contact with Japie Nkele which as an alias for Japie Maponya, so they believed Mr Chairman. A note with that name was found in the room in which Orderele's fingerprints had been lifted, the one that I referred to in the previous paragraph Chairperson, there is a reference perhaps which you might which to pencil in and that is Bundle 2(a), I am told, page 203, paragraph 3, that is Kleynhans Chairperson. "... On the 29th of the 5th 1985, I received a further telex from the Security Branch in Pretoria in which it was mentioned that a note containing the particulars about one Japie Maponya, Nkele, from Botswana Street, Kagiso was found in a room that that was occupied by one Orderele Maponya in Winterveld." It attached as Annexure B to that document. So, Chairperson, by all accounts at that stage, Kleynhans was under the firm impression and belief that Japie Maponya was in contact with his brother and this prompted him to suggest to Le Roux that during August 1985, for them to ask for the assistance of Vlakplaas in order to help with obtaining the information regarding the whereabouts of Orderele from Japie, which they were certain he possessed. Le Roux stated that he had no reason to doubt the grounds upon which his subordinates believed that Japie possessed the information which they needed. Perhaps Chairperson, if I might just interrupt myself, one must bear in mind that the Divisional Commander himself, wasn't part of the investigations, he acts on what he hears from his subordinates. The reason why it was thought that Vlakplaas might succeed where the Security Branch West Rand had failed, was because, so it was believed, Vlakplaas, a Unit under C1 of Head Office had been given out to be a specialised unit for the identification, tracing, arrest and interrogation of terrorists. This was so, Le Roux testified, because Vlakplaas employed askaris. Le Roux thought and believed that Vlakplaas would get the information from Japie. In this regard, it is relevant that Head Office had sent out notifications to other Security Branches ... CHAIRPERSON And also on that point, Le Roux had to be approached by Kleynhans? MR VISSER Yes. CHAIRPERSON Because that circular said that the request has got to come from the Divisional Commander to Head Office? MR VISSER Yes, indeed. CHAIRPERSON Kleynhans himself couldn't make the request direct? MR VISSER Yes, indeed Chairperson. He needed the rubber stamp as it were, from the Divisional Commander in terms of that circular, yes, absolutely. From the above it appears and we refer you to what the Chairman has just referred me to, and we say that from the above it appears that Vlakplaas was made available to assist other Security Branches where a need existed for their specialised assistance, and again, a reference is given. It was suggested in cross-examination Mr Chairman, that the only reason why Vlakplaas would be called out by a Security Branch would be to assist that Security Branch to eliminate someone whom they wanted to get rid of, the implication being that everyone in the Security Branch knew that Vlakplaas eliminated people. We say Chairperson, with respect, not only does there exist no evidence to support such an allegation, but it is contradicted by the evidence before the Committee. Mr de Kock himself stated that Vlakplaas operated under a veil of secrecy in a vacuum, he called it. de Kock also stated that members of Vlakplaas kept their unlawful activities a secret from other members of the Security Branch for obvious reasons. He also said that Vlakplaas was not made up of assassins for hire or words to that effect. Nortje confirmed what was stated by de Kock about the secrecy of Vlakplaas and in cross-examination, he stated that a general statement that people knew about their unlawful activities, and that they would only be asked for assistance when somebody had to be murdered, was incorrect. Fourie and Van der Walt gave evidence to the same affect as did Mbelo and Mosiane, Chairperson. De Kock came to Vlakplaas in June 1983 and he became the Commander of Vlakplaas in July 1985. It appeared the Kleynhans and Dunkley, that is another Security Branch member under Le Roux, visited Vlakplaas, this is common cause Chairperson, during - that is not perhaps common cause, but it must have been towards the end of August 1985. de Kock's version of this visit is that they came to request the askaris to attempt to identify certain terrorists from photographs in order to obtain more information about them. de Kock's version is not that the visit was solely concerned with Orderele. We say Chairperson, apart from the improbability of de Kock's version, given what was exercised in the minds of Kleynhans and Dunkley at the time regarding Orderele, and given the difficulties besieging the Security Branch West Rand, to trace Orderele, Nortje confirms this visit by Kleynhans and Dunkley to de Kock at Vlakplaas and says that immediately thereafter he was instructed by de Kock to go to Krugersdorp on the 25th of September 1985 to assist with a problem which they had. Chairperson, it is not on paper before you, but with respect it just makes sense that that would have happened because we know that the usual cycle was that they would be away for three weeks of a month and then be back for the remainder of the month and the dates, just fit in hand in glove neatly with the probability that Nortje is probably correct when he says that after the visit of Kleynhans and Dunkley he was instructed by de Kock to go to the West Rand on the 25th of September. Both de Kock and Nortje and indeed, it is common cause we submit, Mr Chairman, testified that I am not quite sure whether they said two groups, I have a recollection Chairperson. CHAIRPERSON At one stage it was said that there were two groups at Josini, yes. I have forgotten who gave that evidence, but I recall it, yes. MR VISSER Three groups, yes. But I think it can safely be accepted that it was more than one group, not that anything turns on how many groups, but that is my recollection, of Vlakplaas were due to go to Josini in Natal, and that they in fact went from the beginning of September, due to return during the last week of September 1985. Nortje's evidence has the ring of truth about it considering the probabilities already mentioned. de Kock's version is that Nortje was ordered by Head Office to go to Krugersdorp while he, de Kock, was unaware of such orders. On the 25th of September 1985, Nortje, Van der Walt, Nofemela, Mbelo, Mosiane, Nzimande, Radebe and possibly others, arrived in Krugersdorp. Nortje says that they were expected and after meeting with Kleynhans, he was taken to meet Le Roux. How much of the circumstances of the case might have been known to Nortje beforehand, is irrelevant as it is clear that Nortje was fully briefed in Krugersdorp, this also appears from his amnesty application Chairperson. Nortje suggested that an askari be sent to Japie Maponya posing as an MK Commander, that he be given a Russian weapon or weapons to show to Japie in order to strengthen his claims. For this purpose Chris Mosiane was chosen as the ideal person as he had been freshly recruited as an askari and as he had in fact been an instructor of Orderele Maponya. CHAIRPERSON Yes, but that version of course is also, one is not certain whether that is correct because Messrs Mbelo, Radebe and Mosiane, they all testified that they went directly from Vlakplaas to the vicinity of the bank, they never made a turn at the Security Branch offices. MR VISSER Yes, yes, Chairperson. CHAIRPERSON And they were all consistent on that, so and also that therefore the sending in of Mosiane wasn't only decided once Nortje had ... MR VISSER Decided beforehand? Yes, Chairperson, I didn't deal with that issue on paper and the reason for that is that in our submission, it really isn't a vital material fact whether they decided beforehand or whether this decision was taken at Krugersdorp, it certainly alters not the general course of events or affects it in any material way. On the evidence as it stands, it is really very difficult, really very difficult to choose between the one version and the other and I would prefer to leave it there Chairperson. The fact is what we know is that this was a plan and it was in fact put in action. Japie Maponya worked as a security guard, as we understand it, the United Building Society in Krugersdorp, Mosiane visited Japie on the 25th of September 1985 and as prearranged, attempted to convince him of his cover story in order to obtain information from him about the whereabouts of Orderele, but he was unsuccessful. I said here that Mosiane reported his failure to Nortje, which is not according to his evidence, so that is incorrect, he reported his failure to Radebe who in turn told you this morning, which I wasn't aware last night, that he reported to Nortje. The information reaches Nortje Chairperson, and thereafter a further discussion takes place between Nortje, Kleynhans and Le Roux and possibly others at the West Rand Security Branch offices. Nortje, according to his evidence informed Le Roux of the failure of this first plan and told him that the black members had suggested that they arrest, not arrest, abduct Japie, take him to Vlakplaas and obtain the information from him, through aggressive interrogation. Chairperson, the last sentence should be struck out, we submit that on the question and answers by Mr Radebe this morning, on questions from Commissioner Gcabashe, it cannot be ruled out that Nortje is correct in what he had told you because there may well have been more than one group or Units in Krugersdorp at the time. CHAIRPERSON It would seem on the evidence before us that if there was that discussion, it didn't involve Mbelo, Nofemela, Radebe, the ones that we know went directly to the bank. MR VISSER It was with the others, yes. And not to put too fine a point on it Chairperson, my recollection of Nortje's evidence was that he thought that he discussed it with Nofemela who wasn't part of this group of Mosiane. Le Roux, Chairperson, and it is very important in our submission at page 42, testified that he was unaware of what methods were used by Vlakplaas during interrogations and he says that he was not in a position to be prescriptive of how it had to be done by members of Vlakplaas, but said he, he did foresee that Japie would probably be assaulted in order to obtain the information about Orderele, from him. Le Roux testified that he considered the option presented by Nortje, that is to abduct, as an alternative to a lawful arrest and interrogation in terms of Security legislation which would have been the Internal Security Act at the time. Fact Chairperson, there was a state of emergency declared, but that was on the 21st of July 1985, it was a partial one, but I believe that it also affected Krugersdorp, so that was the reason why I chose the word Security legislation, because it may well be that the regulations in terms of the Security legislation had been effective at the time. Chairperson, Le Roux told you that he decided to go along with the abduction and interrogation as was suggested to him for basically the following reasons - (1) according to Le Roux, the arrest of Japie could have aggravated the relationship between the police and the father, Joseph, who was an informer and previous enquiries made from Japie, had indicated his unwillingness to work with the police and it was improbable that he would have assisted them if he were to be arrested, in addition Security legislation prescribed strict conditions which had to be complied with in cases of arrest. One such requirement was that the family of an arrested person had to be informed forthwith, I may add, of an arrest which in the case of Japie would have scared off Orderele and probably made it more difficult for him to be located and Le Roux then gave Nortje the go-ahead. ADV GCABASHE Mr Visser, can I just interrupt you here. Where I don't quite understand this aspect is if you look at the other side of the coin, what did happen, Mr Le Roux testified that he was party to the abduction essentially and as far as he was concerned really, the man would be released after the abduction, that is his evidence? Having been released, having been assaulted during the abduction and interrogation, he then goes home, so point one, he tells his father what exactly had been done to him, secondly, if you think of a lawful arrest, he is lawfully arrested, he is dealt with in terms of the law and then he is released, depending on what they have managed to get out of him. So this evidence itself, doesn't quite tie up in relation to the purpose for which he then agreed that the man should go to Vlakplaas, unless there is something which I have missed again here. MR VISSER No, with respect ... CHAIRPERSON I think what Adv Gcabashe is saying is if he was unlawfully abducted and aggressively interrogated and then released, right, that also could have jeopardised the relationship with the father and also it could have scared off Orderele as well by doing it this way. MR VISSER I have to agree to it, yes. CHAIRPERSON It is not such a strong reason. MR VISSER It is not a fool-proof reason which Le Roux had in his mind, no, I must agree to that. ADV GCABASHE You see, on the other hand, on Mr de Kock's version, if Mr Le Roux did in fact give that broad instruction about not wanting to see the man in Krugersdorp again, the Vlakplaas method served his purpose, that is looking at the other version that we have before us. That would then fit in with these reasons as well, not really being reasons that are cogent reasons as such. MR VISSER Yes, again, I do concede that they are not cogent reasons and the obvious explanation for that was that Le Roux wanted this information in a hurry, quite clearly, and that must be the reason why he opted for the more aggressive avenue instead of the more conservative avenue. Certainly Chairperson, perhaps against popular opinion of the time, the assault of a detained person in terms of Security legislation, was very risky. There were as you will remember, in terms of the Emergency Regulations, there were prescribes that a person had to be taken to the District Surgeon immediately upon his arrest and thereafter again, and he was liable to be visited by I know Judges at one stage, and I believe also by the Chief Magistrate of the District and altogether it would have been a more difficult situation to interrogate a person "aggressively" under the lawful situation, but I take Adv Gcabashe's criticism, I take that. The fact of the matter is, and I will deal with Mr de Kock's version a little while later, the fact is that good or bad, this is what Le Roux decided. Nortje indicated that he first wanted to obtain orders from de Kock who was at the time either at Mafikeng or at Zeerust, it really doesn't matter. de Kock arrived on the same day and had discussions with Le Roux where Nortje was present during all times and you will recall that I specifically asked him that question, he said he never left that meeting. The background regarding Orderele and probably Joseph and certainly Japie was given to de Kock, who apparently agreed with the plan to abduct Japie. They left Le Roux and according to Nortje, de Kock then gave the necessary orders. Again, this doesn't entirely tally with the evidence of some of the witnesses that you have heard here, but again Chairperson, it really - not much hangs on it. The fact is that Japie was abducted when he left work at the close of business on that day, it was a Wednesday Chairperson, and he was taken to Vlakplaas where they apparently arrived late in the afternoon, I think there is some agreement that it was roundabout dusk. He was taken some distance passed the main house and buildings to a dam in the river, he was interrogated and assaulted. The degree of the assault, would be dealt with later. The evidence is that Japie was not forthcoming with any information about the whereabouts of Orderele although his interrogators were under the firm impression that he possessed of such information. On the day after the abduction of Japie, Le Roux decided that he wanted to go and establish for himself where Vlakplaas was and what the set-up looked like. He stated in his evidence that he felt it to be an opportune moment because of the connection with Vlakplaas, which had now been established through Japie Maponya. Le Roux received directions and he arrived at Vlakplaas some time during the early morning. It wasn't put to Mr Le Roux Chairperson, but I am authorised to tell you that he says that there may very well have been a guard, he cannot remember, what he does know is that he had no undue difficulty getting onto Vlakplaas and that would be the situation. It is hardly likely that a guard at Vlakplaas would have refused entry to a Colonel in the Security Branch if he pitched up and showed his appointment certificate with great respect. He says because he found the place desolate, he immediately lost interest and decided to go back to his office. As he turned to go back, he heard the voice of Kleynhans behind him and then a brief conversation took place. Kleynhans, according to Le Roux, informed him that Japie did not want to cooperate, that means that he refused to give information, that he was assaulted and that there was a fear that Japie, if set free, would be able to identify members of Vlakplaas and the whereabouts of Vlakplaas and that it would jeopardise the Vlakplaas operation. There was also a fear that Japie would lay charges if released, against the police. Kleynhans stated that in view of the above, and this is very important Chairperson, it had been decided that Japie was to be eliminated. CHAIRPERSON Just before you proceed Mr Visser, on this evidence about Colonel Le Roux going to Vlakplaas that morning, we have also got the evidence of Nortje and Van der Walt, Mr Fourie was only there later in the day, not in the morning, that they were there in the morning, the whole morning, I think Van der Walt said he left home at quarter past seven or something and he was there and neither of them saw either Kleynhans or Colonel Le Roux. One could perhaps understand that they might not have seen Colonel Le Roux on Colonel Le Roux' version because he only went there and he saw buildings and he turned around basically, he didn't walk around much and went out, but if Kleynhans was already there, one would have imagined that Kleynhans went with a purpose, you know, he wouldn't have just gone to be at Vlakplaas for the sake of being there, and that one of them would have seen Kleynhans at least. They both are quite firm on that aspect. MR VISSER Yes. May I with respect remind you of the evidence of these two gentlemen that you have referred to. You will recall that Nortje said that he had some things to do, for example he went to fetch petrol, admittedly that was in the afternoon according to his evidence, but in cross-examination, he did concede that it is possible that these two gentlemen might have been there without him knowing it, based upon his recollection of that day and we know it is a long time ago. Van der Walt actually gives support to that concession of Nortje, Van der Walt, out of his own told you that he has a recollection that they, we, were moving around on the East Rand or in Pretoria and you will recall his evidence, at the end he really couldn't say that Kleynhans and Le Roux were not there because it became pretty clear Chairperson, in my respectful submission, that he doesn't even know whether he was there, because you will recall that he says that this affair took a few days, it took a few days. Although admittedly at one stage he said, no, he is talking about the day after the arrest, but taking into account his uncertainty of his movements at the time, and the concession made by Nortje, we submit Mr Chairman, that it is not improbable that Le Roux and Kleynhans were there. CHAIRPERSON Yes, because that version also doesn't fit in with Mr de Kock's version. MR VISSER Yes. CHAIRPERSON Who said he phoned Krugersdorp, spoke to Kleynhans who then went and spoke to Le Roux, came back and said and told him what Gen Le Roux had said? MR VISSER Yes. CHAIRPERSON Now, one might say okay he might have made that phone call after they got back to the office from Vlakplaas, but then that doesn't fit in with what Gen Le Roux says and also one wouldn't have expected Kleynhans to have gone and spoken again to Le Roux, after seeing him at Krugersdorp. MR VISSER Although Le Roux conceded that there were discussions later, yes. He did concede that there were discussions or was a discussion later with Kleynhans where substantially when Commissioner Malan asked him about that, he said substantially the same was repeated as the discussion at Vlakplaas. Chairperson, there are one of two ways to look at this dispute, the one is to say well, we as a Committee are going to choose one version as being the true version on the probabilities and we are going to stick to it, the other is to perhaps take a broadminded view of it because not one single one of the witnesses, including de Kock, told you explicitly and without a doubt they were not there because of X, Y and Z. As I was at pains to try to point out just now, Nortje conceded and one would have expected that Nortje would have been the one to have been able to say but hang on, you know, I was there since that morning and I don't believe that they could have been there, because I would have known. But relying as Mr de Kock does, on the possibility that the gate guard would have told him, well, it is speculative Chairperson, he might or he might not have, he might have been there or he might have gone to the toilet, I don't know, we don't know and we really don't have to speculate. I am opting for the, I am opting Chairperson for the submission that it is not necessary to reject either the evidence of de Kock or Le Roux in this regard, because de Kock doesn't know. Nortje concedes it and Van der Walt liberally concedes that they could have been there, and then of course there is the question why would Le Roux place himself on the scene, if he wasn't there? With respect, I cannot think of a single reason Chairperson, why Le Roux would have placed him there on the scene at Vlakplaas, if he didn't go there. In fact he gave evidence before you which tended to show how his whole life was changed because of that conversation at Vlakplaas and it is just so unlikely that he would have lied about it. In fact, one of the things, he cannot explain to you is why didn't he go and make enquiries about where Japie was. Why didn't he go and look for himself at Japie, these are matters Chairperson, which with great respect are problems which he has because he is being truthful about being at Vlakplaas on that day. Nobody else places him there, nobody else places him there. With respect to that Chairperson, we ask you to accept that in fact Le Roux was there and in fact, he did meet Kleynhans there and that this does not detract from the credibility of any other witness. Now, then follows what is hard to explain, Le Roux reacted by saying it is not my problem, or it is not a problem. I am at paragraph 176, Le Roux explained to this Committee that he has found it difficult to define what went on in his mind exactly when he received this information from Kleynhans, he can remember that he was overcome by a desire to distance himself from the decision to murder Japie, because he is told, it has been decided which would explain his words. He also told this Committee that he found himself as he understood it, confronted by a fait accompli and that he considered that as Vlakplaas was under the control of Head Office, the latter probably authorised the killing and that he was not in a position to countermand the order. You will recall what Fourie told you in this regard, he said at Vlakplaas Le Roux' yes, aye or nay would have had no effect and Nortje made the same concession and Chairperson, with respect, if we look at the circular and the clear intention of that circular that while Vlakplaas was in the area of a Divisional Commander, he fell under his control and under his orders. Quite clearly they were not so any longer, they were now under the control of Head Office and why we say that Chairperson, is because it is proved by what de Kock does the following day, he goes to Head Office and obtain orders from Schoon. What is clear Chairperson whichever way you approach what was going on in his mind, is that he associated himself through his word and conduct, that Japie Maponya was going to be killed and importantly he did not make it clear to Kleynhans that Japie should not be harmed under any circumstances and thereby he left Kleynhans with a clear impression clearly, that he agreed with the concept of Japie's murder. MR MALAN Mr Visser, the "h" of harmed is missing in my copy. MR VISSER Yes, I should really have attached an "h" to the arm, thank you Mr Chairman. Chairperson, there is really very little that one can say in addition to this situation at Vlakplaas, other than perhaps reality is sometimes stranger than fiction. Perhaps one could add that this is an abnormal situation, it is not a situation to which the bonus parta familias would be able to tell us how to react. If you are confronted suddenly with the fact that man who comes from your division, is now going to be killed, and - I beg your pardon - and for reasons good or bad, you believe and think that it is out of your control, how do you react? It is a moot question, how does one react? It is clear that Le Roux doesn't remember what he said, "it is not my problem, it is not a problem", they are vastly two different things, that just shows the confusion of his mind. We submit Chairperson, that the story is so strange that it's got to be true. Nobody could have thought out this story for some ulterior motive. Chairperson, we know that as it transpired, Japie was taken the next day of that, after the assault, the same evening that Le Roux met Kleynhans at Vlakplaas and we know what happened near the Nesden border. My Attorney has just pointed it out to me that in paragraph 178 I left out the name of Mr Fourie, I did not do so intentionally. We don't deal with Mr Freek Pienaar because it doesn't affect us Chairperson, and in fact we don't believe it will affect your considerations and deliberations as to whether Le Roux must be granted or must be refused amnesty. Chairperson, at page 45 and I am nearing the end, according to de Kock, I am now dealing with the main issue, the decision to murder or the order, the order. According to de Kock, during the discussions which he had with Le Roux at Krugersdorp on the 25th of September he asked Le Roux two things, firstly whether he realised that kidnapping was a capital offence for which they could be executed and secondly he enquired from Le Roux, what he wanted them to do with Japie if he refused to cooperate whereupon Le Roux then stated "I never want to see Japie in Krugersdorp again." Chairperson, with great respect to Mr de Kock, this evidence is fatally flawed. No Security Policeman would have ever considered in these circumstances to speak to another about a capital offence, it is just too much to believe. We know that many people were in fact unlawfully arrested, call it by its name abducted. CHAIRPERSON It is a bit over the top to even contemplate the possibility of being sentenced to death for picking up a person for interrogation? MR VISSER Yes, absolutely Chairperson, it is totally over the top. And then you see the second part of the evidence is that he now inquires from Le Roux what he wanted them to do with Japie, in view of the rest of his evidence to say that once he is abducted, he is going to be killed. The question is then, why ask Le Roux? If to Mr de Kock it was synonymous to abduct and to kill, then this whole conversation makes no sense because what he then would have said is Colonel, I don't know whether you know this, but if we go through with the abduction, you must know one thing, we are going to kill him. That is what he would have said, that is what he would have said, not what he professes to have said. Chairperson, let's go to the next part of that conversation according to Mr de Kock, he says that Le Roux said that he never wanted to see Japie Maponya in Krugersdorp again, why? We know what the facts are, we heard Andries this morning, we have no reason to doubt what he says about Japie's life. Le Roux told you, they never had a problem with Japie. Their sole interest in Japie was what they believed the information he possessed, nothing more and nothing less. It makes no sense on all the evidence that Le Roux would ever have said "I never want to see Japie again", in fact he wanted to see Japie again, he wants the information from him. Why should he kill the goose that lays the golden eggs as it is thought by him at that stage? Nortje Chairperson, who on all accounts and I asked him specifically this, was present for the duration of this meeting, never heard Le Roux utter these words. He says in cross-examination had he uttered the words, he would have remembered it. Nortje's evidence before the Committee was that he mentioned to Le Roux that Japie was going to be seriously assaulted, should it appear that Japie did not cooperate or would not cooperate and that he might be killed, he might die during the interrogation and that appears from Exhibit B, paragraph 27. In his written application for amnesty he expressed this evidence slightly differently, he said and that is at Bundle 1(b) page 337 and for the Interpreters, I am now at page 45, paragraph 182 - "... at this early stage, the elimination of Japie Maponya was not a decision, however I regarded it as a possibility. I foresaw that this could happen during or after the interrogation." Now this raises two scenario's Chairperson, the one is on the evidence the possibility of Japie's demise was merely a consideration by him, but not expressed as I have just read to you his own words from Exhibit 1(b) or the demise was intimately associated with the interrogation, he would die during or after. During or after interrogation must be regarded, and I think it was Commissioner Malan that put it to Nortje, dying as a result of the interrogation which is the clear intention of - that one must read into these words. CHAIRPERSON What you are saying just on those words, it doesn't include the intention or planned murder after the interrogation should it not be successful? MR VISSER No, no. Chairperson, if I may ... CHAIRPERSON That the death would result either during the interrogation because of the fierceness of the assault or afterwards because of injuries sustained during the course of the interrogation? MR VISSER The distinction is literally the one is a possibility of him dying and the other is the knowledge of him being killed. We don't have, it wasn't put to Mr Le Roux, but you don't have to put it to him for anyone to concede that under circumstances of an interrogation, it is always as Mr Malan has put it, a remote possibility that a person might die. It is a very remote one, but as a fact, it is something you can't deny. We are not quite sure what this means, but what we do know is that whether it was an expressed thought of Nortje or not, it took it no further than the vague possibility of Japie dying during interrogation. Of course Le Roux says that he doesn't remember anything of the kind, but now during the evidence Mr Chairman ... MR MALAN Sorry, just in my mind, if indeed the intention was to sound the probability of the interrogated person to be killed after interrogation, would one expect a mention of an incidental death during interrogation? That is something that needs to be argued. MR VISSER Yes, absolutely correctly Chairperson. And the whole atmosphere of coyness which is being created, also doesn't wash with great respect. I mean here are hardened people who have killed before and are now going to kill again in their own minds, why don't they tell Le Roux this? I mean if one looks at the anxiousness of now trying to find Le Roux as the man who gave the order, surely it would have occurred to Mr de Kock then, get it from Le Roux now to say "go and kill him". Why be coy about it Mr Chairman, why look at body language and pseudonyms, with great respect their whole conversation, I am dealing with the point that the whole conversation as testified to be Mr de Kock, just couldn't have happened that way. Now during his evidence in the trial of Mr de Kock, he took it a lot further, that is now Nortje. He testified that he foresaw the possibility of Japie's death and that it was discussed by de Kock and himself with Le Roux, he said that Le Roux was told that if no information could be extracted from Japie and if he was assaulted badly, the words he used, that he might then have to be taken away. That is a different proposition altogether, that is a different proposition altogether. The question is now, what do you believe of Nortje's evidence? Do you believe the evidence which he gave before Justice Van der Merwe or do you believe the evidence he gave before you and where does his statement under oath, fit in? And in all of that, all I am asking you is to find that it wasn't pertinently discussed, the death of Japie Maponya. I have no query with Mr Nortje if he wants you to believe that he foresaw it as a possibility, any human being with intelligence would foresee that if you walk across a street, you may be knocked down by a car, it takes the matter no further. What we say Chairperson, is that already at the point which we have reached now, the improbability in the version of Mr de Kock is so great, that it cannot be believed, but it goes further. CHAIRPERSON ... Van der Walt and Fourie who said it was only after the interrogation that they then discussed it (indistinct) and they arrived, so that is also in the pot as it were. MR VISSER Yes, I am coming to that. Yes, I am coming to that now. The first step being, what orders does Mr de Kock ... MR MALAN Maybe there is an indication that you should move faster if you are not there yet. MR VISSER Chairperson, I was just beginning to enjoy the argument. The first step was of course what the contents of the orders were that he gave. He told nobody we are going to abduct this man, interrogate him and then take him out and especially a person like Fourie, why wouldn't he tell him that, a salted Security Policeman who has been at Vlakplaas? Chairperson, Le Roux stated in paragraph 186 that the idea that Japie would be eliminated was never raised or discussed in his office during the conversations, according to him, he heard about it for the first time the next day, when he visited Vlakplaas. He therefore denies emphatically that he gave any orders or his consent on the 25th of September 1985 to de Kock or Nortje, for Japie to be eliminated. I don't want to pretend that Nortje said that he gave an order, because he actually said that he didn't. The evidence shows that Le Roux had no reason whatsoever to get rid of Japie, his sole interest in him was to obtain information about Orderele, no fact or consideration presents itself to indicate that Le Roux wanted Japie to be removed and never to be seen again in Krugersdorp. We submit Chairperson, that on the evidence Le Roux did not, and on the probabilities he would not have uttered the words testified to by de Kock. We say the suggestion by de Kock of the inevitability that Japie would be killed the moment he was abducted and that this was discussed and agreed to by Le Roux, was denied by him. It also - this is a repetition. We deal in paragraph 190 with the question of the remote possibility Chairperson. Then of course the proposition that once a man is abducted and taken to Vlakplaas and assaulted, he could never be released and would have to be killed, has been contradicted. It has been contradicted by Nortje, I asked Mr Fourie about it who says that he doesn't agree with that, Van der Walt disagrees with that, Mosiane disagrees with that and in fact, gave you some examples of other instances of which he has personal knowledge where exactly that happened and where the person was released, where he wasn't turned and yet released. We say Chairperson, in any event that Ms Bridjlall may have been not far off the mark when she suggested to Nortje in her cross-examination that there are examples on record where the Security Police successfully covered up abductions and assaults or torture and that perhaps is also the answer to a previous question that was put to me by Commissioner Gcabashe. It is very hard to come to the conclusion that the mere fact that a man was abducted and even tortured, would necessarily have meant his death because if popular allegations were half correct of the numbers of people during the conflict of the past, who were abducted and tortured, we would have had hundreds of people who were killed Chairperson. This statement just cannot hold water. We submit Chairperson, that Nortje's evidence in fact supports the evidence of Le Roux. In the de Kock trial already he made it clear that de Kock discussed the elimination of Japie, this was the point you mentioned to me, with him after the assault on Japie at Vlakplaas, Bundle 3(b), page 90 to 91. This was also the emphatic evidence of Nortje before this Committee. In addition, Fourie and Van der Walt gave evidence to the same affect, namely that it was only after the assault on Japie, that de Kock mentioned the possible killing of Japie for the first time. Perhaps Chairperson, the probabilities will point one way or the other, we say it will. Le Roux accepts responsibility for the murder of Japie Maponya based upon his acts and omissions at Vlakplaas on the 26th of September 1985 and we know what the considerations were that were put to him at that stage, and that he was confronted with the fact that it has been decided. De Kock stated that Japie Maponya was seriously assaulted. Nofemela in his written amnesty application stated that at one stage during the severe assault on Japie as he puts it, de Kock asked him whether he thought Japie would be able to recognise him, to which he replied in the affirmative. Nofemela said that de Kock then shot Japie there and then at Vlakplaas which we know not to have been truthful, but the fact is Chairperson, that this conversation as far as we know, was not denied before this Committee, that de Kock asked Nofemela whether he thought that Japie could recognise him. My learned friend can straighten me out if I am wrong. At the, if this is correct Chairperson and it is uncontested, at the time of the assault, it now occurs to de Kock that this man has now been seriously assaulted and he might be able to recognise people. However de Kock in his evidence did not deny the allegation of Nofemela about asking him whether Japie would be able to recognise him, this indicates that de Kock became about recognition on members of Vlakplaas and a possible blowing of the cover of Vlakplaas during or after the assault of Japie. This would tally with the contents of the information given by Kleynhans to Le Roux, the following day, it is precisely the same thing. Nortje was adamant in his evidence that no decision to eliminate Japie, was taken at Krugersdorp. He made it clear that that would have depended on whether Japie co-operated or not, which is the logical thing, obviously if the man co-operates and he convinces everybody that he has now become a staunch supporter of the police, why kill him, there is no reason for it? This evidence of Nortje must be accepted Chairperson, with respect. By necessary implication, the murder of Japie would or might only become relevant if he was seriously assaulted, the words that he used, this evidence fits in with the stated probability that de Kock only started considering the murder of Japie during or after the assault. Nortje stated that after de Kock's return from Head Office, he, Nortje, realised and I may add for the first time, that Japie was going to be killed. We haven't got a record Chairperson, this was also his evidence, he supported what he stated in Bundle 1(c) at page 338, paragraph 9. Fourie was just as emphatic that Le Roux was involved in the decision for Japie to be abducted and interrogated, as far as his knowledge goes obviously, because he wasn't present at the meeting, but that the decision to kill him, was taken by de Kock with as both he and Nortje thought, the authorisation of Security Head Office, Brigadier Schoon. If de Kock really believed Chairperson, that Le Roux had given orders for Japie to be eliminated, one would have expected him to tell Fourie and Van der Walt about the order directly after the meeting, which all of them say he did not do. I have given you some references. de Kock's explanation when pressed about this was that it did not accord or it would have run counter to the need to know principle. Now, that is a ridiculous answer with great respect to Mr de Kock, under the circumstances. Old Koevoet people together on a covert operation, need to know, could play absolutely no role whatsoever, especially in view of the fact that de Kock then already must have known that he was going to use these very same people to go with him the next day to eliminate Japie or whenever. Need to know principle Chairperson, does not fit into the picture and that answer we say with great respect, is disingenuous (incorrectly spelt). The evidence of de Kock itself, puts the lie to the allegation that Le Roux had given the order to eliminate Japie. When they had the meeting at Krugersdorp, he was asked why he thought that Japie had to be killed. I can't remember whether this was in his evidence in chief, I think it was and gave the following strange explanation. He said this, the reason why he thought that Japie had to die, was because he was called from Mafikeng to abduct a man he did not know. It just makes no sense, but it does explain one thing and that is the mental reference point of Mr de Kock. At one stage he actually said that if somebody said to me he's got a problem, it means that there is a person that has to be killed. Now if that is his frame of mind, if that is his point of departure, well then Chairperson, clearly he could have walked out there and believed firmly that Mr Le Roux gave an order for Japie to be killed. I asked him about that Chairperson, and frankly my recollection of, I haven't got notes, but my recollection of that evidence is that it wasn't really explained. He later, when I questioned him in cross-examination added "yes, and also Le Roux said also that he didn't want to see the man again." But these two were offered to you as an explanation as to why Japie had to be killed, and you will bear that in mind Chairperson. Then de Kock, at the end of his evidence said this, he said - "... I was concerned about the identification of my people, that is why I passed the judgement that Japie should be killed", or words very closely to that effect, that is how my note reads. That means only one thing in plain Afrikaans and that is he decided that Japie had to be killed. MR MALAN Is that indeed so? Couldn't this simply be a confirmation of what he had already known according to his version, right up front, when he was abducted? MR VISSER Chairperson, not if you bear in mind all the other probabilities, the fact that he goes the next day, to which I am going to come right now, the fact of what Fourie says, the fact of what Nortje says, the fact of what Van der Walt says. MR MALAN I am just referring to your interpreting these words as having only that meaning, I am asking you couldn't it also simply confirm an earlier state of mind that abduction leads to killing because of identification problems of his members or Vlakplaas operation in itself? MR VISSER Chairperson, I might have stated it too high, I might have stated it too high, but let's look at this and I don't want to spend too much time on it, but it is clear that the identification becomes a problem in de Kock's mind at the time of the assault. It could not refer, it could not refer to a prior order the previous day. If that is stating it too high, well, then I apologise Chairperson. CHAIRPERSON And if, just once again now that it has just come to my mind now, if it was decided before the abduction that he was going to be killed, why put on the balaclava at all, covering with the blanket? You know, then identification isn't a problem? MR VISSER Absolutely. CHAIRPERSON Because the man is going to be killed in any event? MR VISSER Sure. CHAIRPERSON So why block his eyes? MR VISSER Yes, absolutely Chairperson, yes absolutely. CHAIRPERSON Why shouldn't he know that they are going to Vlakplaas if he was going to be killed? MR VISSER Sure, absolutely. MR MALAN What about the possibility of a risk of escape, something going wrong? Wouldn't you make doubly sure if you are a specialist at Vlakplaas? I am leaving it at that. MR VISSER Chairperson, yes, I heard of very few people who were picked up and put on the floor of a car with two people's feet on top of him, who escaped, but of course it is a possibility within the realms of possibilities. But the fact is, and while you mention it, I may as well deal with it now, he had a balaclava according to two witnesses which was turned around so that he could not see. According to another witness, he had a blanket over him at all material times. From the time, from the time Chairperson, that he was accosted by Nofemela and whoever else and shown an appointment certificate and said, and told that they were investigating a fraud case and that he is a suspect and that he must come along, from that moment when he enters the car, he never sees anything. So at best, he sees three people, it is not even certain that he would have seen three people, but at best, he would have seen two people. On that score yes, it is entirely improbable that it was decided because he was going to be abducted, he is now going to be killed. Chairperson, paragraph 205 speaks for itself. We deal with the question of the orders. Now, if de Kock Chairperson, had believed that Le Roux had given him an order, we say in paragraph 206, because the day after the assault he went to Head Office to inform Schoon about the fact that Japie was abducted and presumably that Le Roux, he would have told Schoon then, that Le Roux had ordered his elimination, just makes no sense. But let us accept that, let us accept that, he is now coming to report to Schoon because Schoon is his Commander and I say Chairperson, in paragraph 207 while it might be accepted as something which de Kock might have done in the circumstances, what makes no sense is what he did after he was unable to find Schoon, he telephones Kleynhans. He said to him, were you serious yesterday that Japie has to be eliminated, coming from a man who says that it was his view that once he was abducted, that he had to be killed. Why does he phone Kleynhans? With great respect Chairperson, there is only one answer, it is because Le Roux hadn't ordered the murder of Japie Maponya, what other answer could there be? That was the reason why he went to seek out Schoon and he couldn't find him. We say this conduct is strange indeed for a man who had killed before and who on his evidence had strict orders to murder Japie Maponya, the proposition which de Kock wishes the Committee to accept, namely that he, as a salted soldier who had seen many contacts and who had eliminated people on orders of superior Officers, would have questioned or asked for confirmation of the alleged order of Le Roux, is disingenuous. One also cannot help wondering why he didn't speak to Le Roux himself, why phone Kleynhans? He has spoken to a Commander in terms of the letters that had been written by Head Office, why now suddenly speak to a subordinate? He had Kleynhans the evening before with him, why speak to him? If he was really concerned as to whether he understood the order correctly or for whatever other reason, why not speak to the man himself? It must be made clear Chairperson, that as far as this telephone conversation, Le Roux never denied that it could have taken place. He conceded that during the course of that morning, it could have taken place, but that does not detract from the improbability Chairperson, that he had, that de Kock would have asked for confirmation had in fact Le Roux given the order the previous day. The truth of the matter on the probabilities ... CHAIRPERSON When you say in this paragraph 211, you say it must be made clear that Le Roux never confirmed that the alleged... MR VISSER Yes, he doesn't, he knows nothing about it. CHAIRPERSON Yes. MR VISSER He knows nothing about it, but he concedes that it was possible that it could have happened. CHAIRPERSON That Kleynhans came and said look, Mr de Kock is on the phone, he says he just wants to make sure that your order yesterday that Japie Maponya be killed, still stands, does he concede that that may have happened? MR VISSER No, no Chairperson, he was never asked so explicitly. What he was asked and which he conceded was that yes, I had further discussions with Kleynhans about this when we were back at Krugersdorp, yes, it is possible that de Kock may have spoken to Kleynhans that I didn't know about. That is what he conceded, but he wasn't asked the detail which you now put to me. We say Chairperson, that the truth of the matter on the probabilities is that de Kock was the one who decided that Japie was to be eliminated, this is also supported again by the evidence of Nortje, Fourie and Van der Walt. de Kock was asked what he would have done, Chairperson, you asked him, had Le Roux on his version, told Kleynhans to tell de Kock to take Japie home and his answer was informative. He said he would not have released him, and he added immediately and we say Chairperson, it is not difficult under the circumstances to conclude that what he meant to say was that he wouldn't have released him at all. He would have obtained, he said he would have obtained instructions from Schoon as to whether Japie should be released. The question here is if his previous evidence is correct, that he phoned for confirmation and now he is confronted with the situation he's got to take Japie home, why doesn't he then simply take Japie home? No says he, he won't release him immediately. Why not? MR MALAN Sorry, I am coming back to what I said earlier, to me it is quite logical that if midstream Le Roux would change his mind, de Kock if we accept his version that from the start, he accepted the inevitability of Japie being killed because of the risk to the exposure of Vlakplaas and the askaris and his policemen, that he would indeed have done what he says here. MR VISSER Chairperson, the argument is simply this, if the salted soldier de Kock had been given an order the previous day to kill Japie Maponya, it is entirely improbable that he would have phoned the next day to say listen, are you still sure, haven't you changed your mind about this? That is the only point I am making. We say Chairperson, that at the end of the day on all these probabilities, on all these probabilities, the irresistible inference is that Mr de Kock decided during or after the assault on Japie Maponya, for reasons best known to himself, which might have included the ones that were presented to Le Roux, that Japie had to be eliminated. And of course, all of this is supported by the fact Chairperson, all the suggestions which I have made to you, supported by the fact that on de Kock's own admission, he never reported back to the man who gave him the order in terms of his evidence, he never reports back. ADV GCABASHE Mr Visser, why then would Mr de Kock be implicating Mr Le Roux to this extent, I mean what reason would he have for saying Le Roux gave me the order? Why say that if in fact Le Roux did not give him that order? He has taken responsibility for what he has done, all he has said is there is another step upwards, I had an order from so and so? MR VISSER Chairperson, I am actually sorry that you ask me the question, because I didn't want to argue it, but what is quite clear from Mr de Kock's evidence at his trial and during subsequent hearings where he testified before the Amnesty Committee, is his deep-seated aversion. ADV GCABASHE If that is what you are going to argue, I know that, well, is that all ... MR VISSER It is all in the papers, Chairperson, yes. I don't know why he dislikes Mr Le Roux. I didn't ask Mr Le Roux why Mr de Kock doesn't like him. ADV GCABASHE No, I just thought you might bring a fresh perspective, if that is the argument you are going to advance, then that is all right. MR VISSER I prefer to deal with it on the probabilities. CHAIRPERSON There was no order from, or authorisation from Schoon? MR VISSER Clearly not, not on any evidence before you, no Chairperson, not on any evidence. In fact it was put to Mr de Kock that Schoon's version is that he didn't know about it at all, and Mr de Kock conceded that he never told Schoon that he had murdered Japie Maponya. That doesn't enter the picture, no. CHAIRPERSON May that be a reason for saying that he got the order from Gen Le Roux, because there wasn't one from Schoon, that is what I am wanting from you? MR VISSER Maybe. Maybe Chairperson. Mr de Kock knows, maybe he will tell us, perhaps he won't. MR MALAN Why does he have to rely on an order at all under the circumstances? MR VISSER It makes it a lot easier Chairperson, and again, I don't want to go into too much detail, but if Mr de Kock really dislikes Mr Le Roux, you can kill two birds with one stone. I really don't want to go, to get involved in that argument, it is in the papers Chairperson, he has been cross-examined, Mr de Kock, at length by Mr Ackerman or Mr DeMeillon at his hearing and it is quite clear that from all the evidence, all the cross-examination, that Mr de Kock has a problem with politicians and with Generals because he feels that he has been left in the lurch, and there may be a very good reason for him to feel so because he is sitting in jail for things which he was not only, alone involved. There may be justification for him thinking so. Chairperson, I wish to go onto the last part. We deal with credibility Chairperson, and I would submit to you that certainly there is no good reason that presents itself in this hearing why you should not believe Mr Le Roux. I am dealing now with the question of credibility on the basis that the Committee considers that it cannot accept both the evidence of Mr Le Roux as well as that of Mr de Kock, on that basis. I say if the Committee considers that the evidence of de Kock and Le Roux, cannot both be accepted, it being mutually destructive, it is submitted that the Committee will have no hesitation to accept the evidence of Le Roux. Not only did Le Roux give honest and clear evidence of his commitment to divulge the full truth about the incident as well as disclosing the fullness of his innermost feelings and thoughts and you will remember his evidence, but also is his evidence supported by the evidence of others and as I have been attempting to point out, by the probabilities. Chairperson, the question is, isn't there another way out? Isn't it possible that the evidence of both de Kock and Le Roux can exist side by side? In other words that they are not mutually destructive and we say if de Kock truly and honestly believes that he was given an instruction to eliminate Japie by Le Roux in Krugersdorp on the 25th of September 1985, there may be an explanation for the difference of opinion between himself and Le Roux, and that Chairperson, is this. de Kock against his Koevoet background and his experiences of killing in Namibia as well as his exposure to unlawful conduct perpetrated by members of Vlakplaas, and his particular frame of mind, may have been under a genuine impression that Le Roux wanted Japie murdered, whilst in fact Le Roux with his diametrically different frame of mind, never considered or intended anything of the kind. This is the proposition which Commissioner ... CHAIRPERSON ... understanding arising out of the fact that they don't speak straight? MR VISSER Yes. That is exactly what Commissioner Malan put to him. If you are really in the frame of mind where you think that if a man says I've got a problem with somebody, he means that you must kill him, well, then I can't understand it Mr Chairman, and I would have been, I would have had a difference of opinion with such a person. And if you find that that was truly the situation here, well, then on that basis, the evidence of both as Mr Malan put it, the evidence of both Mr de Kock and Mr Le Roux, could exist side by side. I mention that question of the word problem in paragraph 221, we suppose Chairperson, not that it is for us to say, but in paragraph 222 that Mr de Kock would still be faced with a difficulty that his inferences were based on body language as was put to him, and pseudonyms while Le Roux' frame of mind was fixed on actual words used. de Kock might also have to explain why Nortje who comes from the same background as he, left the meeting with a clearer recollection that Le Roux had not ordered the elimination of Japie Maponya. If the Committee accepts the proposition mooted above Chairperson, both Le Roux as well as de Kock's evidence may exist side by side and in which event, it would make matters far easier. ADV GCABASHE Mr Visser, on that point, Mr Le Roux, would then have clearly said to Kleynhans at the farm, when he spoke to him there, that that is not what I ordered, he is killing him or you are going to deal with this man outside of the authority that I have advanced. He would have been very, very categoric, very clear that you are doing this without my authority, know that it is on your heads, you, Schoon and whoever else. But he didn't do that, he didn't say that. MR VISSER But he did. He did Chairperson, he said it is not my problem. ADV GCABASHE He didn't do anything direct, you know, he didn't make it very clear that he would have nothing to do with this, because this is not what he authorised. He authorised X, not Y and Z. He didn't do that. MR VISSER Absolutely correct. You see, at the farm there are really two issues which arise, the one is precisely that one and that is why he is asking for amnesty, it is because precisely because, he didn't do something to demonstrate that he didn't agree with it at all. You are absolutely correct Ms Gcabashe, but there is another issue which arises here and that is that it may be argued that if he had really not given the order the previous day, one might have expected him there at Vlakplaas, when confronted by Kleynhans with this new scenario to have said "but I never said you could, I never said that this is what I wanted", I think that might be part of what you are putting to me. Well, my submission to you would be that in the light of what he had told you, it can be explained. He says first of all "it is not my problem" and I am sure that is what he said. He wanted to distance himself from it, he would have used the words "it is not my problem". MR MALAN Sorry, I wanted to say if the words that he used indeed were "it is not a problem", that would certainly be the consent or confirmation of an earlier order? MR VISSER Le Roux is honest enough to tell you that it could have been either the one or the other, he could have told the Human Rights Violations Commission already "I said it wasn't my problem, I distanced myself from it", but he didn't because he wanted to be honest about it. Chairperson again, and I don't want to repeat the argument, but again, both those issues, it is not a normal situation. Think how you would have reacted if you were confronted with it. I don't know how I would have reacted, I really don't know. I would probably have reacted violently by saying "I want nothing to do with it and as far as it falls within my authority, I forbid you to do it", I don't know, but that is perhaps how I would have. He reacted differently. The fact of the matter is Chairperson, that on both those scores, they can be explained on the evidence of Le Roux and particularly if you bear in mind all the probabilities and the supporting evidence of Nortje and Van der Walt and Fourie. Chairperson, there is really no option but to find that what he says, is true. We say Chairperson, that as an alternative on the basis that Commissioner Malan put it to Mr de Kock, there seems to be a possibility that the evidence of Le Roux and de Kock, on the issue of the order, can exist side by side, on the basis of their points of departure. As far as proportionality is concerned Chairperson, and I confine myself to Le Roux, and this I foreshadowed already when I referred you to subsection 20(2)(g), he is confronted with the situation, he is told that Japie Maponya was seriously assaulted, that implies that he cannot be released. He is told that Japie Maponya is in a position to identify people who abducted him, that is going to present a problem. He is told that the whole Vlakplaas operation is in jeopardy because Japie now knows where it is and he can tell people, and of course all of this would happen if he lay charges, preferred charges later and of course laying the charge itself, the embarrassment which it will cause. Now, those are the facts in the mind of Le Roux at the time against which the proportionality of his conduct must be adjudicated upon and the difficulty here is he doesn't give an order, he just associates himself. Chairperson, thank goodness, you are more clever than I, because I don't quite know how one goes about applying the requirements of the Act relating to proportionality precisely to that situation. Clearly one has to apply them as far as possible, but one can't help thinking that something, somewhere short of the ordinary if I may call it that situation, will prevail here where it is not the man who actually does the thing, but who associates himself. I have no doubt with respect, that you will come to the correct decision. CHAIRPERSON ... the other situation, if it were to be found that the order was given prior to the abduction, also that he be eliminated, then it is a different story? MR VISSER That is an entirely different story. CHAIRPERSON Because then one's got to take a look and say okay, now, you've got to weigh up the killing of a man with the chance that maybe, maybe we get some information. MR VISSER Absolutely. The political objective on the 25th of September could only have been to obtain information, yes. It is against that political objection sought to be achieved, that his killing will then have to be considered because on the basis that once he is abducted, he's got to be killed. Now, really Mr Chairman, with all due respect, a salted policemen, Divisional Commissioner of Police, with all due respect is not going to kill a man just because he wants information from him. But be that as it may, that point I have already argued. We say Chairperson, that from the viewpoint of Le Roux at page 53 at the bottom, he was informed by Kleynhans that Japie was assaulted, there was a fear that Japie if set free, could put the finger on Vlakplaas and identify some of the members and there is the problem that charges might be laid. It is significant Chairperson, we say that faced with a decision which had already been taken, he was faced with a decision that had already been taken to eliminate Japie, Kleynhans stated that in view of the above, it had been decided that Japie was to be eliminated. Le Roux' association with the killing of Japie Maponya is to be judged on the basis of the facts and information which he had at the time at Vlakplaas. The political objective of simply obtaining information from Japie about the whereabouts of his terrorist brother, had become expanded to include other issues. This is the point which you have just put to me, mentioned above. In these circumstances, the fact that Le Roux was faced with the fact that a decision had to be taken, must be taken into account Chairperson. We submit that from his point of view, the elimination of Japie was proportional to the political objective of obtaining the information from Japie, as well as protecting the identities of members of Vlakplaas and keeping Vlakplaas operation secret and lastly to prevent embarrassment of charges which may be brought and again Chairperson, he only associated himself and I really don't know what you make of that. As far as the implicated persons are concerned Chairperson, as Mr de Kock himself said, he does not suggest anything sinister was done by Martin Naude, Captain Martin Naude. CHAIRPERSON On the evidence, at worst he wrote something on a note saying they must go to Krugersdorp. MR VISSER He wrote, he just cleared with de Kock to go to Krugersdorp, yes. And as far as the discussion in the office that day, is concerned, it really takes the matter no further Chairperson. In fact Le Roux conceded that it was probably correct. The only thing he did not concede was that de Kock would have said to him that one of the cases is the one in which you killed somebody. He said one of these incidents that is mentioned in the newspaper, concerned your operation. The allegation that Schoon knew of a cover up, cannot hold water because Mr de Kock himself says that he didn't tell Schoon that he had killed Japie Maponya. Chairperson, in the circumstances if we may turn to page ... MR MALAN Just before you take us back there, your paragraph 229 against the background the explanation, the wording there is clearly wrong that the elimination of Japie Maponya, this is page 54, was proportional indeed to protecting the identities of members of Vlakplaas and the operation there and whatever follows, but certainly not to the obtaining of information from Japie? MR VISSER No, of course not. MR MALAN (No microphone) MR VISSER Yes, but not the killing. I am sorry, I do appreciate you pointing it out to me. ADV GCABASHE Mr Visser, I thought you had also conceded that the fact that the man was either covered with a blanket or had a balaclava on, again, negates the identity issue? You advanced something along those lines as part of the reason for not really authorising an elimination, so even that would fall off? MR VISSER No, no, how does Le Roux know that? He doesn't know that. His knowledge is what Kleynhans tells him. What the true facts are, came out later and which may have come out in this hearing, did not exercise Le Roux' mind, because it wasn't present in his mind. All that is relevant with great respect is what he genuinely believed to be the position at the time. ADV GCABASHE Yes, but I understood him to disassociate himself with those events at the time, and only associates himself with them once he knew the full story and what had indeed happened, the link came later, not at the time that he walked away and said "it is not my problem" or whatever it is that he said? MR VISSER No, in that regard he made it very clear that in spite of everything, at that moment, when he did not countermand the order for Japie to be killed, he associated himself with Japie's death. That evidence is crystal clear with respect. ADV GCABASHE I will look at it, thank you. MR MALAN I understood his evidence to be saying I associated myself by omission, not in any positive sense? MR VISSER That is right, that is correct. Now Chairperson, at page 3, paragraph 6, I have left out unfortunately the abduction and I apologise. We would apply for amnesty for Mr Le Roux for the abduction/unlawful arrest and unlawful detention of Japie Maponya, his assault and torture on the basis that Le Roux says that he did foresee that. CHAIRPERSON (Microphone not on) MR VISSER Just abduction, yes, that would cover it, the others would be lesser offences. CHAIRPERSON (Microphone not on) MR VISSER No, although they speak loosely of arrest, but we know that they meant abduction and the murder of Japie Maponya and conspiracy and or being an accessory before and after the fact and defeating the ends of justice or any other lesser offence or delict which may be supported by the fact Chairperson. Thank you for having listened to me for so long. I was much longer than I wanted to be. My Attorney tells me that at paragraph 181, page 45 the reference should be - oh, I see, the reference of Exhibit B, paragraph 27, should be moved up to the reference for paragraph 180, it should move up one paragraph Chairperson. Chairperson, yes, there is just one aspect which I did forget last night, and therefore again forgot today, just one last probability and that is this, let us assume for a moment that Le Roux wanted Japie Maponya dead, he wanted him killed, let's assume that for a moment, on the 25th of September or before that, why would he call in somebody whom he doesn't know from Adam, he hadn't known Mr de Kock beforehand, he didn't know who de Kock was going to bring along or how many people. Why would he not have taken care of the problem with his own people if he were inclined to eliminate Japie Maponya, it doesn't make sense. It doesn't make sense for an experienced police Officer to send a telex to Head Office, which can be traced back to him and we know from what Mr de Kock told us that Mainstay was mentioned in there, so it would have been very easy for the Detectives to put two and two together. Why would he go through all this trouble if he wanted Japie Maponya killed, presumably he could have asked Kleynhans or Dunkley or whoever "go and take him out". Thank you Chairperson. MR MALAN They were writing exams. CHAIRPERSON Yes, thank you Mr Visser. Mr Hattingh or who is going to, have you decided? MR HATTINGH Mr Lamey has indicated to me that he would like to ... MR LAMEY No, in fact, I have indicated to Mr Hattingh, we don't want to quibble about it, but I thought that we might overlap with regard to certain aspects regarding the political objective and so forth, but I am in the hands of the Chair. Mr Chairperson, I am going to try not to be long, I would like to avail myself of the opportunity to give supplementary Heads. CHAIRPERSON I see we have just been handed a copy of Mr Williams' Heads of argument for Mr Mbelo. MR LAMEY IN ARGUMENT Chairperson, I have represented in this hearing the so-called footsoldier which I want with reference to an extract from the evidence of Gen Van der Merwe, as referred to by my learned friend on page 17, paragraph 55 of his Heads of argument "... lower ranking Officers often did not know where orders originated from, due to their complete subservience and because of the need to know principle which was strictly applied. It would also not have occurred to them to ask questions about it. Their blind allegiance would not have allowed them to question orders." When asked how he considered an order to act illegally, Gen M. Strydom in his amnesty application concerning the death of MK George and Brown said - "... I would have swum to Russia to execute the order." Now, if that is applicable to a person in the position of a General, then I think it is even more so applicable to the lower ranks of the operators. MR VISSER Strydom was a Captain at the time, he is now a General. MR LAMEY The point is if he was a Captain at the time, the clients that I represent had the ranks of Sergeant and the point that I want to make is that there were persons at the time who gave orders, they had all the information and the dimension around them for the reasons to make those orders and then there were people who had to carry out those orders. Those people who had to carry out those orders, were seldom in a position where they had all the relevant information before them, unless they were on the ground, the source of that information and took it, those information above, in order to get some order. Here we have a situation where Mr Maponya was for some time and unbeknown to Nortje and Fourie and Van der Walt at least, the subject or the target to get information from. Nortje did not know anything, except about the activities of Orderele Maponya until he arrived in Krugersdorp. As such within the framework of the system, he was at the time of his arrival in Krugersdorp, for that period until de Kock arrived there, under the orders of the Krugersdorp Branch. There was clearly at first a bona fide attempt, if I say bona fide it is perhaps also a contentious word to use, but a normal way to try and get this information from Japie Maponya. That didn't succeed and obviously the proposal came forward to, which he discussed with the black members and the idea to abduct the person. Now, Nortje did I think and what every lower ranking person in his position would do, is to convey that to Le Roux and also to call in his Officer Commanding before any final decision is made on that aspect. Chairperson, I have, the point that I want to make is the decision to abduct at least if I can take it step by step, came clearly with the approval of Colonel Le Roux as well as with the approval of his direct Commanding Officer, de Kock. That order came under circumstances which was pointed out by Nortje to Le Roux, that listen, just think, if we abduct this person, he is going to be tortured, that was foreseeable at that stage, and he might also die during interrogation or if I can put it in Afrikaans as Nortje has put it, or he will have be taken away thereafter, that is what he also stated in his original trial. I have listened to the argument of Mr Visser and in anticipation of the argument of Mr Hattingh, I think what Nortje's impression of this was about the actual dying or killing of Japie Maponya was that, and he emphasised that many times during his evidence, especially under cross-examination that it would have depended upon circumstances, it was not his evidence, the crux of his evidence and the essence of it, it was a foreseeable situation, but not a fait accompli. His evidence in my opinion, comes somewhat in the middle of Le Roux and de Kock's version, not as strong as de Kock that there was already an order at Krugersdorp, but something about a realisation in the discussion that this could happen, but obviously it would depend on circumstances. It would depend whether Maponya co-operated or not, there could be other circumstances that could have acted as a novus actus until that decision had been made. Chairperson, given that we all know how the, it is common cause how the abduction took place and the assaults at Vlakplaas in my opinion also to a great extent, common cause. We do have that difference of whether the teargas was sprayed in the mouth, I don't think it is ... CHAIRPERSON You've got differences that exist between Nortje's evidence and de Kock's evidence as to what was said in Gen Le Roux' office, namely where that he doesn't want Japie Maponya to be seen again in Krugersdorp, etc. MR LAMEY Yes, as correctly indicated in the Heads. CHAIRPERSON And then also while I am just mentioning it now, there are other obvious discrepancies such as the presence of Pienaar at the killing and whether they took a spade or fetched a spade an all that sort of stuff. What do you say about Nortje as a witness because I think it is quite clear from Mr Hattingh's examination that Mr Hattingh is going to argue that he was confused because he said this at the trial and something else here and something else there and the statement from Denmark, that sort of thing? MR LAMEY Chairperson, I think when one evaluates his evidence here, whatever form it took place, may I just say this, if I can express my own opinion on the manner in which he gave his evidence and his demeanour, etc, I think to the best of his ability he gave evidence before the Amnesty Committee to the best of his recollection. It is understandable Mr Chairman, that he would not have a clear recollection on all the detailed aspects what was focused upon in cross-examination in order to prove that his evidence is not reliable. One could also expect that after having given evidence at the de Kock trial, that there would also be, if you later relate the same evidence, that your later relation of evidence, is not going to be a photocopy of your earlier evidence. That is just humanly impossible. You will find here and there differences, I will in my supplementary Heads perhaps focus more on those differences and the materiality thereof, but to make a general submission and statement at this stage, my impression was not that there were anything of material difference in relation to what he has testified at the de Kock trial and here. One must also remember, although that is not so clear perhaps on the evidence before the Committee, but we can accept that as also common cause, is that Mr Nortje is also a person who had to relate at the de Kock trial and also in his amnesty application to various incidents that he has been involved in. In fact, if one just from purely impression and just as a matter of logic, one would be more inclined to accept that the witness having that background and the time that has elapsed and all the many incidents that he has been involved, would have certain vagueness and uncertainties in certain circumstances and would tend when he testifies, to make a logical inference of the circumstances at the time. That inference does also have an element of unreliability in it, but therefore I would submit that one would look at the totality of all the evidence to the probabilities. When one have a look at that, for instance, his relation of what transpired in Le Roux' office, then it is most probable, it is as Mr Visser has pointed out, it is more probable that the decision there was not a fait accompli because it would have depended on what transpired. I will later get back also to the probabilities relating to the events at Nesden and also Freek Pienaar, but that is just one example at this stage. Chairperson, on the other hand, if one in general compares his evidence to de Kock's, then I must say I am to a certain extent amused and also - that a person in the position of Mr de Kock can come forward and state certain details of conversations, of other events with such exactness without making concessions of, in certain instances, of mistake. Chairperson, that is the gist of my impressions of Nortje, I must also say that his evidence if one have a measure of doubt about his evidence, then his evidence is also supported by Fourie, it has been at the de Kock trial, it is supported by Van der Walt again here and where the ring of truth is, of taking the evidence of all three together, is the fact that there are these differences because one can humanly expect those differences. If there was a concocted version, one would have expected a much better attempt in that regard Chairperson. I also, when I make this submission, I am making the submission of what I am going to say now with the full understanding this Committee will look independently at their evidence and will not be influenced by the evidence of the de Kock trial, but it is significant and I cannot hesitate to say that, that all three of them, including Mosiane, were granted Section 204 indemnity at the de Kock trial after having been cross-examined at length to prove their uncredibility. Chairperson, I want to just bring back my argument to the political objective and that is that if one, one has to apply somewhat, to a certain extent also the position of the footsoldier in a different light to the person in a position who makes the decision and who's got the information, who is in a position to verify that information. We know that, and there is no evidence before the Committee that Japie Maponya was indeed a member of the ANC or MK. ADV GCABASHE I beg your pardon? CHAIRPERSON Not Japie, no, no evidence, yes. MR LAMEY But what is important is what these footsoldiers had reason to believe at the time. They were involved in an abduction and interrogation against the background where there had been previous attempts, where Orderele Maponya, previous unsuccessful attempts, where there was a most active brother involved in the RSA with the killing of a policeman. We also heard from Mr Mosiane that they went prior to that, in Krugersdorp, to look also for the whereabouts of Orderele Maponya. His family stays in Krugersdorp, no information was divulged by Mr Maponya during interrogation, in fact it came to my mind later that he was a security guard at the bank in Krugersdorp. If he had been approached as in fact he had been approached, by a person presenting himself as a terrorist, a fellow MK member or an MK member, why did Japie Maponya not report that to the bank? If he had reported that to his employer at the bank, one would have expected that the first thing to be done ... CHAIRPERSON He may have? MR LAMEY Yes Chair, let us assume he may have, but what we then would have expected is that the bank would phone nobody else on the matter of probability than the Security Branch at Krugersdorp and that would have signalled an indication that this person ... CHAIRPERSON Unless of course he didn't believe Chris Mosiane, the probabilities are that he probably didn't believe Chris Mosiane, that he was an MK member just looking for Orderele. He believed Mosiane to be a Security Policeman because he had been bothered and harassed by them in the past to such an extent that you know, why should he now with another approach, suddenly believe that this guy is an MK? You know, so why report that, do you know what I mean? MR LAMEY Yes, well from the knowledge that we have now, he probably knew already that ... CHAIRPERSON Yes, so he wouldn't report that to the bank, here is another policeman pretending he is an MK operative? MR LAMEY Yes, but I am trying to argue, to put yourself to imagine yourself in the position of my clients, who did not have the totality of all the surround and here is simply a person who the Krugersdorp Branch believes, are possessing that information and looking at it now in the background, there was reason to believe that he had that information, but that he refused to divulge that. If we hear also what Mr Andries Maponya said, that there was this loyalty with Japie Maponya and one can, my impression is one can take it as far as that, that that loyalty went so far that he would die for that loyalty, rather than divulge or jeopardise his brother's position. Having that all, the picture and that is, that presented themselves in the minds of my clients, was the person refusing to divulge this information, who probably had it. That brings them within the realm that they had all reason to believe at least, that he was a supporter of his brother's activities or perhaps broader, of the liberation struggle and that brings them at least Chairperson, within the ambit of Section 20(2)(f). CHAIRPERSON (Microphone not on) MR LAMEY Yes, 20(2)(f) "... any person who on reasonable grounds believe that he or she was acting in the course and scope of his duties and within the scope of his expressed or implied authority." It is my submission that they had reason to believe that what they did against Japie Maponya, that they had reason to believe, placing them in the context of the time, with the surrounding political circumstances, the climate, that here we had to do with a person who was a supporter at least. Chairperson, we also, they were also in a position that they were the ideal, given their background, to carry out this operation, all three Fourie, Nortje and Van de Walt, given their experience in Koevoet, they were not - and Chairperson, it is for that reason also that they were involved by Mr de Kock for this operation. They were loyal at the time, they knew that they had to obey the orders, follow the orders and some of ... MR MALAN And they indeed had orders, that is not disputed? MR LAMEY Yes, they had orders. They also had all reason to believe that this decision was approved at Head Office. Van der Walt said that de Kock said the previous night at the farm that he is going to go to Head Office to get clarity on this thing. It was usual for de Kock to go to Head Office and to get final orders on matters of this serious nature. Chairperson, as I have stated in the beginning, that if you think back, put yourself in the position of those days, the whole Security structure would have become totally ineffective and untenable if a footsoldier had to insist that information be vericated or that a decision, or to question a decision. It was simply not done. It is easy today to sit in an armchair and say well, you could have asked this or you could have asked that, or whatever the position is. The point is that they had to follow orders and that is I think the main motivation for their participation in this regard. Also the applicants that I represent, Nortje and Fourie, has also said that they also believed it was to protect Vlakplaas and the exposure which Japie Maponya had to police members. Chairperson, we all know that Japie's head was covered at Vlakplaas, he probably did not see the locality of Vlakplaas. Although there was, I think in the evidence of Nofemela in his amnesty application, something to the affect that when they arrived at Vlakplaas, this balaclava was put up, but be that as it may, the clients that I represent, found him, his head to be covered already upon arrival. What is however clear is that he was exposed to the identify of policemen, in fact the policemen who abducted him, put him in the Jetta, presented themselves as policemen. Japie Maponya could have put two and two together also regarding the person who approached him that morning. CHAIRPERSON It is a double-edged sword this argument because then you are saying that they would have known that right from the very beginning that they would have been able to have identified policemen and therefore it is not just a question of the possibility of foreseeing that he would be killed at the end, but it is something far more definite? MR LAMEY Well, Nortje has said that that possibility was raised in Le Roux' office that he could be taken out after, but circumstances would ... CHAIRPERSON Well, the circumstances are that you know there were sort of minimal exposure, a fleeting look at two policemen in a fairly traumatic situation, that is it? MR LAMEY Chairperson, yes, but we also had the exposure of Mosiane, the askari Nzimande was also the askari in that vehicle. In any event, that decision was it would appear in the mind of de Kock, also taken at Vlakplaas for that reason, because we have the evidence of Nofemela that de Kock asked Nofemela whether he thinks that Maponya would be able to recognise him and Nofemela said yes, and he said "don't worry, he won't see you again." It could have been that because of the motivation coming from de Kock, my clients made it also their own motivation. The point is that there was that risk, one cannot exclude that risk, one cannot also ... MR MALAN Mr Lamey I think the point made is, if that risk is the argument as one of the reasons for the action, then that existed before the abduction and then that lends credibility to the version of de Kock in terms of a decision taken up front and not the version of your own clients, that the decision was not taken in Krugersdorp already. I think you can leave it there. MR LAMEY Thank you, yes, but the difference here just I think between Nortje and de Kock is that it was, it could never have been a final decision, the circumstances would indicate later what the ultimate decision would be. About the other side of the edge that they could have possibly have taken measures to prevent that identification better when they made the decision at Krugersdorp, I think Chairperson, is thinking back now, yes, you can think of many possibilities, but they approached him on that day in the bank, they discussed this and the abduction had to take place, they were already there with a group of askaris, there was hardly any other way to do it when he comes back from work, and to do it in sort of very openly pretending to be policemen. CHAIRPERSON It would seem from the evidence that we have heard, that the abduction was performed fairly efficiently, it was quick and didn't cause any havoc on the streets or anything like that? MR LAMEY Yes. ADV GCABASHE Mr Lamey, and what do you say of Mr Radebe's evidence that he was specifically told by Nortje to bring the panel van up and at the time, Nortje didn't say to him it is because you are going to abduct Japie, but it then made sense to him much later when he was then given the instruction to abduct? How do you relate that to the decision making at Krugersdorp, before Krugersdorp, at Vlakplaas, we have heard a lot of evidence on that? MR LAMEY Chairperson, yes, on Radebe's evidence, I would submit that very little reliance can be placed on his evidence, he has contradicted him clearly in his amnesty application. ADV GCABASHE Can I interrupt you, he did use the panel van, that is not disputed. Nortje actually thought that the man had been transferred to the panel van, I think he only found out much later that he had not, so it is really the issue of using the panel van ... CHAIRPERSON Sorry, and they went straight to the bank without being shown where to go, they were told to go straight to the bank with Mosiane. MR LAMEY Yes, I think the only difference comes in actually who gave those orders at Vlakplaas and it wasn't Nortje that could have given it at Vlakplaas. I think we have here a problem of also perhaps people bona fide have some recollection about this, but somewhere the puzzle doesn't fit, because - but what makes it more probable and logic as Mr Nortje has explained, that there was a first attempt with Mosiane. He came back, he reported, it is perhaps open for doubt whether Nortje is correct that Mosiane reported directly to him. I think what Mosiane has testified is that he reported and it was relayed to Nortje. Nortje, I remember also said that it was possible that there was, when they had to, when they came to the point of discussing the abduction and the plan how to do it, there could have been some orders sent out or message or instruction to bring that vehicle. That is what I can recall. ADV GCABASHE Essentially you are saying that Nortje wasn't physically at the farm and he did not physically stand in front of Radebe and say "Radebe, this is what you will do", you say he could not have been at the farm at that point? MR LAMEY It doesn't make sense because Mosiane had to approach Maponya first and the decision was logically only taken to abduct after Mosiane's attempt was unsuccessful, so it couldn't have been there at Vlakplaas at that point in time. CHAIRPERSON Unless there was a contingency plan, they were thinking ahead, saying okay, what if he doesn't, maybe we will need the van? MR LAMEY That is also a possibility yes, Mr Chairperson. CHAIRPERSON What about the question of proportionality Mr Lamey? You have the situation, I mean the bold facts are basically you've got a person, Japie Maponya, okay at the particular time, you have addressed us as to what the policemen might have believed, but we know that he wasn't involved in politics, right, he had an employment, he was, he had a family at home, two kids, etc. He was the brother of somebody politically involved, he had been approached on more than one occasion before to get information unsuccessfully, now he is abducted with a chance of getting information, probably fairly remote because he hasn't co-operated in all previous other attempts. He doesn't comply after about 35, 40 minutes of being beaten up and then is murdered, planned pre-meditated murder to get him out of that, okay, we have got the fact that there might be expose of Vlakplaas, etc, etc, but what do you say about proportionality? The death of Japie Maponya to get that information, was it on, after all the exposure of themselves and of Vlakplaas to Japie Maponya, was of their own doing, the police's own doing not Maponya's? MR LAMEY Chairperson, I think many assaults in the past ... CHAIRPERSON Sorry, and on one other aspect, on that question of proportionality, does the fact of having, of acting in terms of an order or instruction given, have any affect on it? MR LAMEY I think the question of proportionality in my submission to you, lays also primarily with the decision maker. He's got to weigh up the life of a human being as to other possibilities and I think primarily it lays with from where the order comes from. But there is also this point that I want to make Chairperson, that we knew that the police, if we assume that Japie after having been tortured as such, that there was a risk that he would lay charges against the police, we know how much although these things were covered up, how much embarrassment and ammunition these type of acts gave the liberation movements in the past. CHAIRPERSON I don't think that is really affecting in this particular matter, I am asking you, I am not going to say I don't think I am wrong, I am asking you, does it? You have the situation, okay, there is Japie Maponya, he may know where his brother is, we must try to get information from him, right, you then decide to abduct him, thereby exposing yourselves, your identity, Vlakplaas, etc, knowingly to get that information. It is not like a Section 29 detainee who is in John Vorster Square and now he is being tortured by people there and they kill him, there you've got the embarrassment, etc, etc, because he is now in the situation, but here, they are - I don't know if you can bring in the question of proportionality or can you, this question of the exposure of Vlakplaas and the police in the circumstances of this case, because it was them who knowingly exposed themselves to get this information? MR LAMEY Chairperson, yes, I think they had to a certain extent, a catch 22 themselves, given the problem that Krugersdorp had. There was a decision to abduct and once they started to do that, under the circumstances which it happened, I would submit that you thereby are creating the difficulty for yourself, but thinking back, when you started, there was at that point, no other way to do it so you are starting with a process where you reach a point of almost no return, and that is actually I think what happened here. If Japie Maponya went back and laid a charge against the police, it was easy to put two and two together, Andries Maponya also said that they would have been faced immediately with the difficulty that there has been no register that this person had been arrested as a starting point, the first message would have been, the first prima facie look at the thing would have been an unlawful arrest or abduction, which would have been immediately a difficult thing to sort out. CHAIRPERSON And then just on that point, there is just something that has come to mind, if that is so, now they realised they have acted illegally, etc, how much of the, what portion of the decision to kill would be personal, to protect their own skins? Here we have done it, I might be charged with a false arrest, I might be fired from the Police. MR LAMEY I don't think it is so much of a ... CHAIRPERSON I might be sued for damages? MR LAMEY Personal protection, I think it is the impact that this would have had in a broader sense, in the Security Police in general, the domino effect of that Chairperson. We all know what domino effect the death of Steve Biko had, the death of Neil Aggett, all examples and these things and a repetition of these things coming forward, would just have also created more and more of the embarrassment. I would think you remove that embarrassment by making the person disappear, to put it unfortunately as blunt as that and to rather as it would appear later now, that a legend has been created that he went out of the country. Chairperson, that is the crux of my argument. CHAIRPERSON Yes, and you did indicate that you ... MR LAMEY Yes, I haven't addressed now the differences between de Kock and the probabilities of Freek Pienaar and what happened there Chairperson. CHAIRPERSON You will deal with that? MR LAMEY Tomorrow, I see it is ... CHAIRPERSON We've got to sit until, well, we don't have to sit until, but we can sit until lunch time tomorrow, so Ms Bridjlall and Mr Hattingh, Mr Lamey, you can get to some agreement as to how to apportion that time because after that, we will have to be going. But then of course there will be, as Mr Hattingh has mentioned, he will be submitting written Heads as well. MR VISSER I don't know whether my learned friend wants his client, Mr de Kock to be here, but one was wondering whether it would be such a terrible thing if we started at nine o'clock and he wasn't here, with argument? That would give us half an hour longer, not that I am a stickler for working that hard. CHAIRPERSON Is it possible to bring Mr de Kock at nine o'clock? The Correctional Services says they will bring him ... MR LAMEY Chairperson, I don't want to be the spanner in the works here, but unfortunately I have ... CHAIRPERSON You've got consultations or something? MR LAMEY I have a consultation between eight and nine o'clock. CHAIRPERSON Okay, yes, well, we better than keep it at ... ADV GCABASHE Mr Lamey, maybe you can also deal with the contradictions that arose between Mr Nortje, Fourie and Van der Walt and Mosiane, just in respect of where Mr de Kock was and Mosiane said he was at Vlakplaas, he gave him the order. Mr Fourie says he came down with him, just some of the odd bits that, there are a couple of other contradictions, just amongst your own clients, just deal with that at some point. CHAIRPERSON Yes, there is going to be work slows, etc, or slow-go's, etc, tomorrow and boycotts and that sort of thing, would that affect getting Mr de Kock here? Well, we said - as soon after nine o'clock as possible, when Mr Lamey arrives. Yes, thank you, we will continue tomorrow morning then, with the oral submissions as I say, written submissions will also be received at a later stage, but thank you very much and we will now adjourn until as soon after nine o'clock as possible tomorrow. MS LOCKHAT Please stand. COMMITTEE ADJOURNS