amntrans AMNESTY HEARINGS 1998-03-18 BOKSBURG 3 https://sabctrc.saha.org.za/hearing.php?id=54643&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/bok/bok2_3hani3.htm CHAIRPERSON: Is counsel ready to address us? MR PRINSLOO: Honourable Chairperson, before I begin with the argument, I would like to request that the Committee receive the video tapes which arrived from the Security Council, which were referred to. It is necessary that these cassettes are watched in order to determine what the value of the statements are which were put before the Committee. The circumstances under which they were made, and which led to the accuracy of these statements, and specifically in terms of the conditions which prevailed and it will clearly be indicated in our arguments and for that reason, it would be submitted as evidence. CHAIRPERSON: These tapes have already been referred to in the evidence and if at the end of the hearing, we consider it necessary, we will view them unless your suggestion is that we should do that now, a suggestion which I am not particularly inclined to agree with at this stage. MR PRINSLOO: Our suggestion is Mr Chairman, with respect, that the Committee should receive them as an exhibit. I am not saying that we should view them today. CHAIRPERSON: We will receive them, yes. Mr Bizos, is there any objection to that? MR BIZOS: No Mr Chairman. They should be, they are, I don't know precisely who is in possession of them now, but I would suggest that we identify them by the number of tapes and video's that there are, and that they remain in the possession of the Committee's secretariat, Mr Chairman. CHAIRPERSON: Is there any indication as to where these are at the moment? MR PRINSLOO: Mr Chairman, they are in my possession at the moment. There are 21 tapes and may I suggest that during the adjournment, we can just take it up with Mr Mpshe, he can identify them, number them and then he will receive them. Will that be in order? CHAIRPERSON: Yes, that will be in order, thank you. MR PRINSLOO: Thank you Mr Chairman. JUDGE NGOEPE: Sorry, you spoke of us admitting them as exhibits. I assumed those are the tapes that we haven't seen? MR PRINSLOO: Some were viewed partially Mr Chairman, and others were not viewed. In respect of Mr Derby-Lewis for instance, that was never taken up with him, although they were made available after he testified. As you will recall with respect Mr Chairman, those tapes only became available after Mr Deetliefs arrived on the scene and Mr Brandt started his examinations. JUDGE NGOEPE: Yes, do you have a problem if we at a convenient time, we just look at them without necessarily accepting them as exhibits? MR PRINSLOO: I beg your pardon Mr Chairman? JUDGE NGOEPE: Do you have a problem if we just have a look at them in due course, without necessarily accepting them as exhibits, as part of the record? MR PRINSLOO: What my suggestion is Mr Chairman, receive them as exhibits, and it could be viewed by the Committee whenever it is convenient to the Committee, if it desires to do so. CHAIRPERSON: Please do carry on. MR BIZOS: Mr Chairman, I am rather concerned that this evidence has been in the possession of the applicants and their legal representatives over this long period of time. I have no objection of them being put in as exhibits, but I submit that if there is anything specific which the applicants want to draw attention to, they must of necessity do so, they cannot put an onus on the Committee or on us, to say well, you know there maybe something there which was not referred to them in argument, that we've had no opportunity of checking whether it was there originally and without our being given an opportunity to make any submission in relation to it. That doesn't mean that I am objecting that they should go in as an exhibit, on the other hand, we cannot have a carte blanche that, or put an onus on the Committee to spend some 60 hours viewing things in order to try and pick something up either for the applicants or against the applicants. It is a task which I submit that the Committee cannot be asked to undertake. If the applicants say that in tape number so and so, this is what appears and we ask you to take it into consideration, then we can deal with it. We can't leave it as a loose matter, it is no different to a 1 000 page document, to say I hand it in but somehow or other there may be something in it that somebody may take into consideration at some time or another, it is not the way to run a case. CHAIRPERSON: I understand and I imagine you accept that as the position as well? MR PRINSLOO: Mr Chairman, with respect, we have already referred to them in our heads of argument, we have already requested in our heads of argument that these tapes ought to be viewed. CHAIRPERSON: No, but you will refer specifically to the particular tapes that you want us to apply our minds to? MR PRINSLOO: That is correct Mr Chairman, and we also say that particular tape ought to be viewed in its context, pertaining to particular issues. CHAIRPERSON: Yes. MR PRINSLOO: And Mr Chairman, just the other reason, the tapes were given to us, there was, at that stage the idea of having them transcribed. It was taken up with the Department of Justice by our Attorney, and they said that the costs would be too great in order to have them transcribed, because they had to be re- taped onto a tape cassette by the Broadcasting Corporation and there was a lot of problems involved and it could not be done Mr Chairman. CHAIRPERSON: Yes. MR PRINSLOO: That is why we've got them back here now. Mr Chairman, those tapes were also in possession of Mr Bizos and his team as well, they viewed them as well, so it is no secret to no one. CHAIRPERSON: Do carry on. MR BIZOS: ... that this is the second or third time that it has been mentioned that the Department of Justice said that they will not authorise the expenditure. The applicants have brought a case Mr Chairman. We do not know on what basis this is placed on record, and I will leave it at that Mr Chairman. JUDGE WILSON: One other point, I have been trying to find it and I can't, I have a recollection that some tapes were in the possession of Mrs Derby-Lewis and there was a suggestion that she had erased portion of them? MR BIZOS: No, that was settled, that was settled Mr Chairman, in her favour, because what had happened was that we made that suggestion and in fact we apologised to her for it, because the tape had been copied in a wrong order. What we expected to be at the end of the tape, was not there, but it did appear at another ... And we may say Mr Chairman, I am reminded that I have been too generous to Mrs Derby-Lewis, I did not make the suggestion, Adv Brandt did. We didn't have an opportunity of viewing it, he spent the whole night viewing them, and came back with this information which turned out to be wrong. JUDGE WILSON: Was this one of the same tapes as you are now referring to? MR PRINSLOO: That is correct Mr Chairman. In pursuance of what Mr Bizos said, I suggested to the Committee that we will have it transcribed, and this developed subsequent to the adjournment period. Members of the Committee, we have already submitted heads of argument and subsequently heads of argument have been received from the members of the family. These heads were received on the Thursday and unfortunately they were received late. Mr Bizos had other obligations, but we will leave it at that. Honourable Chairperson, our heads have been discussed thoroughly under various topics. I would like to refer to a number of aspects with reference to the testimony and in light of the fact that further new evidence was submitted, since the submission of the heads, and if preferred as such, we could submit written heads of argument in response to Mr Bizos' heads of argument to the Committee. I would like to argue with respect that the applicants firstly complies with the provisions of the relevant Section 21(c) and with specific reference to the applicant's action in support of the Conservative Party, that he believed on a bona fide basis that he was supporting the cause of the Conservative Party. With reference to the aspect of his actions in support of the Conservative Party, I refer you to the judgment of the S v Maloi and others in SA Court Reports, 1987 1 (196) (A), judgment of Presiding Appeal Court, Judge Boshoff, and specifically on page 210, H - I and also on page 211, and 212 H - I. With respect in this respect, I would like to argue that in that judgment it was necessary that the party had to have been aware of the actions which were undertaken by the applicants. It is my argument that under these circumstances the applicant who was an Executive Member of the Consecutive Party, acted in support of the Party. There is no evidence to the contrary which supports that the applicant acted maliciously or acted in any way for his own interests or to promote his own interests. The Committee with respect, should consider what the political history of the country was, which preceded all these events, where the country was governed by a white government, which consisted of the National Party, later the Conservative Party and the National Party which devolved by following a different policy and had a vision of a unity State and the Conservative Party's vision was that of separate development and each nation governing itself. This was the strong policy of the Conservative Party which was not negotiable according to them, and in short, it took place that the party according to the evidence of Dr Hartzenberg, the leader of the Conservative Party, that the democratic process at a stage, was closed and that negotiations would serve no further purpose and that according to the evidence of Mr Derby-Lewis, the Codesa negotiations were overwhelmed or dominated by members of the Communist Party and as seen by the Conservative Party, communist rule was at the order of the day and with respect, this fact was a fact according to the people and the party who believed that there was a threat which was eminent and that there was no other option but to mobilise on all fronts, there was talk of war. There was a climate of war. Yesterday evidence was given about it again, Visser and Clark, Dr Hartzenberg have all testified in terms of this, the applicants have testified in terms of this, and at this stage there are applications for amnesty which indicate or which go as far as May 1994. I would like to argue with respect that it was not indicated to the contrary that it could be said that there was no state of undeclared war. ADV POTGIETER: Mr Prinsloo, was the Conservative Party part of the negotiation process when this event occurred? MR PRINSLOO: It would appear that they were still involved with it, but for them it was an indisputable fact that it was futile to participate any further in the negotiation process. It would appear clearly even from discussions with the deceased, Mr Chris Hani who said on the John Robby show the objective was a unity State and that is what the Conservative Party opposed, therefore for any person on the street who supported the Conservative Party, these persons believed that if there was an election in which the entire country participated, that handful of people would not be able to put forward any other ideology. The policy of the National Party at that stage, was the unity State and it was the opinion of the Conservative Party that the National Party had thrown in the towel and that they had betrayed the nation, that was the perception which existed in the society among the white population and that is the society from which the applicant came. That was the basis upon which decisions were taken for mobilisations, that was the basis of various speeches which were made, referring to war and the use of other methods to prevent ... CHAIRPERSON: May I just interrupt. If during Codesa, when the major role players had gathered to try and solve the problems, a group saw that Codesa would not serve their purpose and they regarded that their particular cause was lost in these negotiations, that belief in a group of the people that negotiations would not serve the purpose, that belief gave rise to unhappiness and aggressive talk on the part of such people, does that mean that we must come to the conclusion that there was a climate of war, just because one section of the community did not accept the proceedings at Codesa? Does that mean that there was a climate of war just because one section of the community did not have faith in these negotiations? MR PRINSLOO: Honourable Chair, with respect at that stage many acts of aggression and violence were committed. For example where Mr Botha blew up a school, many bomb explosions took place. Many people were killed, and the talk of war and mobilisation indicated a conflict between two groups. On the one side, the ANC/SACP alliance which was mobilising for the takeover of the country, and one would have to look at what happened before that. The ANC by means of violence, which was its policy... CHAIRPERSON: No, I am considering that we have already passed that stage of the ANC's struggle, we are talking about a stage where there were these negotiations at Codesa. At that stage where the major role players were involved in discussing what should happen to the future of this country, a group did not view the proceedings at Codesa as serving their purpose. That view of that group and the conduct of its members in resorting to violence, does that mean that we must come to the conclusion that there was a climate of war, when the majority of the people and the other groups were trying to negotiate and one group from outside, were not? Does that mean there was a climate of war in the country? MR PRINSLOO: With respect, as it was understood there was a climate of war because a large proportion of the white population viewed this as a climate of war, and there was resistance against this and various groups made various statements which have already been submitted as evidence before you, and clearly there was a climate of war. It was carried over as a fact that a resistance would take place, that the deceased was bringing in weapons from Angola, there was talk of when the ANC would lay down their weapons, that history exists and with respect there was definitely a climate of war and it must be considered that a number of acts of violence took place. This proved it self until the elections had taken place, there were many acts of violence which were done in opposition to this ANC/SACP takeover. Visser testified yesterday that the ballot boxes be blown up to prevent people from voting, there were all those explosions which were actually about something else, but the preceding history indicates that this climate did exist, and was promoted until the very last moment. ADV POTGIETER: What would be more relevant for our purposes, those deeds which he referred to, were those connected to the Conservative Party? MR PRINSLOO: With respect, Chairperson, connected to the Right Wing Parties. ADV POTGIETER: Your client's case if I understand correctly, is that he acted in support of the Conservative Party with regard to this incident, and I think it is of greater relevance for us to know to which degree this action was connected to the Conservative Party, this might assist you. MR PRINSLOO: With respect, you will remember that there were various fronts who along with the Conservative Party planned the same type of resistance in this country, and the Conservative Party stood in conjunction with that proportion of the population who were planning this resistance in order to prevent a government coming into power which they didn't want to come into power, a communist government. That is what they feared and it was a real and genuine fear for every person who had been born during the years of the total onslaught and had learnt the meaning of communist in that context. The National Party and a number of its allies and the Conservative Party, propagated this view and that is what was consistently portrayed and it could not be done away with overnight as a genuine fear. CHAIRPERSON: Do you draw any distinction in your mind between a communist government and a black majority government in the country? MR PRINSLOO: Honourable Chairperson, as the witness viewed it, as the society viewed it and as it was put forward in many cases, the ANC was the majority and the communist government would be the minority. And upon those facts, it would appear that the control was placed in the hands of the Communist Party, although the ANC government would be the instrument whereby the government would be controlled and the country governed, and that is how I understood it. Honourable Chairperson, at various moments, the evidence of the applicant was attacked in terms of the Conservative Party's lack of policy in terms of violence. None of the political parties who functioned in this country, including the South African Police or any instruments of the State, had a determined or particular policy of violence which was officially recognised. If such a policy had existed, and if it had been announced, that party would not have had any kind of survival. It would have been regarded as a criminal party. CHAIRPERSON: Would the National Party in your belief, at that time, also believed in violence but did not want to disclose it? MR PRINSLOO: Honourable Chairperson, with respect, the National Party was in power and by means of its various organs, which were involved in the conflict at that stage, the Police, the Defence Force and various other institutions, the Commando's, and other such organisations which were involved in the struggle against the ANC, used these instruments and it came to light in various instances that the Police community came forward and said that they acted upon orders, or that the climate indicated that they acted upon orders, and the answer therefore is that the National Party definitely maintained a policy of violence. That it definitely existed. With respect, in various instances it appeared in the media that certain individuals were seen as targets, where members of the ANC were killed under various circumstances and this must have had a definite influence on this perception of war, because of the policy of violence. With respect, one cannot ignore the acts of violence which were committed by the ANC. A milieu of violence existed and it promoted itself or continued to exist until at least after the election. This piece of history which occurred so swiftly, which perhaps in world history happened much quicker than what it would have happened in other countries, nonetheless remains a fact that it occurred. ADV POTGIETER: Do you say that we should find that the CP had an undeclared policy of violence? MR PRINSLOO: I would like to put it to you in this way that it was definitely so if one considers that the leaders and various other individuals said that other methods needed to be used, other than the democratic process, not by means of the ballot box. That they would not be subjected to a communist government, that they would not give their country up. How should it be interpreted, how would one interpret or combat that resistance? ADV POTGIETER: You ask that we make the inference from the statements made by the leaders that the party indeed maintained an undeclared policy of violence? MR PRINSLOO: With respect, that is what I am asking because if one considers what the party said in terms of mobilising, therefore people were advised to go over to mobilisation. Passive versus active are described, and then it was left to those who would put it into operation, they had to interpret these statements in the broader sense. It was said we will not give up our country, we will fight for it. The leader of the Conservative Party, Dr Treurnicht, said that he would not serve under a communist government or under President Mandela. If it was as such, how could it then have been interpreted in the light of these statements. Also in terms of the statements that the Conservative Party made that Codesa was a futile exercise. CHAIRPERSON: It was one thing for a leader to say I will not serve under Dr Mandela, it is perfectly reasonable for people of standing to say that they will not serve under a government, that is not the same as saying that I am going to go to war to see that I am in government in the place of him. Isn't that so? MR PRINSLOO: With respect, we should not view this in terms of compartments, but in a holistic sense. What these leaders said, what Dr Hartzenberg said, what various individuals such as Snyman said, for example, the mobilisation, the various acts which were committed, the stock piling of weapons and acts of violence were being committed, what would be the interpretation of these facts? Especially in light of a statement where someone says that he would not serve under such and such a government? It is threatening, it is quite obviously eminent that the unity State would occur as envisioned by the ANC and the SACP, it wasn't something which was part of the further future. At that stage the elections took place, in April 1994, as we know. ADV POTGIETER: I am just trying to clear up this aspect, what must we make of the evidence of Dr Hartzenberg which was clearly indicating that the SACP or that the CP did not have a policy of violence? He could not have said that they had a policy of violence, if he had said so the CP would not have continued to exist. ADV POTGIETER: I understand the point that you are making, but here, under oath before us, he confirmed that the CP did not have such a policy and that it would have been understandable that some of the supporters might have believed that such a policy of violence existed, but he maintained that the CP did not have such a policy. MR PRINSLOO: With respect, he indeed said that there was a climate of violence which was created by the CP, that is a fact. He also maintained that the CP believed in the existence of a policy of violence, but then one would have to think about it objectively and I believe that the Committee will do so and ask the question what did exist if that scenario was sketched. Then one cannot say anything else but the fact that the CP did promote a policy of violence, that violence should be used. But how else would one prevent a party from coming into government if one couldn't prevent it at the ballot boxes? I do not like to make comparisons, but just how look at how successful the ANC was by using violence and forcing the government to give over the country. Various voices in the world had said do away with apartheid, and still there was no success. Only until the ANC had used violence, did it actually bring about a measure of success. ADV POTGIETER: I would not like spend too much time on this point, yet I do understand what you are saying. You have said that there was an undeclared state or policy of violence. MR PRINSLOO: With respect, these are not conflicting statements because there was not an officially declared policy of violence. But that climate coupled with the evidence in a holistic sense, compile a series of facts and it would be unfair to expect that parties within this country, according to this legislation, should have maintained a policy of violence while the ANC/SACP alliance from the outside, were untouchable and maintained and announced policy of violence, which they applied in every instance. In that respect one should look at the fairness of the application of the law. There should be an equal application of the law, and on that basis it was stated. JUDGE NGOEPE: Can you take that debate a little bit further? I think you have made your point about that. Suppose we do find that there was no such a policy, declared or undeclared, where does this leave your client's case? MR PRINSLOO: Do you mean that none of the evidence or the witnesses which I've sketched at this point, existed? JUDGE NGOEPE: The CP did not have such a policy? The Conservative Party. MR PRINSLOO: A policy which said that one shouldn't, or that one should kill people? JUDGE NGOEPE: You - let's assume that we do find that the CP did not have the policy to kill people, to assassinate people. MR PRINSLOO: An announced policy? JUDGE NGOEPE: Whether declared or undeclared, we do find that they didn't have any such policy at all. MR PRINSLOO: With respect Mr Chairman, I want to argue that the climate was there, and that the client subjectively believed that there was such a climate. The climate was created as I have already told the Honourable Committee. The climate was there. He in a bona fide way believed there was such a climate. JUDGE NGOEPE: A person in the position of Mr Derby-Lewis who was close to the leaders of the party, would you argue that subjectively he believed, even though the CP did not have such a policy, declared or otherwise, he himself, as an individual, despite his position in the party, despite his close relationship with the leaders, subjectively believed that there was such a policy? MR PRINSLOO: Honourable Chairperson, with respect if you look at the judgment or the statements of the leaders, the climate, the happenings in the country, is that what he believed he was part of the leadership, he was involved in that. They participated in various processes. In Krugersdorp for example he committed some things, various things were done against the Conservative Party. Koos Botha, there is a dispute about that, apart from him, nobody else was repudiated. With respect Mr Chairman, the witness said that he had spoken about Dr Treurnicht and he said regarding the aspect of killing the anti-Christ, and he said he is not holding it against Mr Hani as a person, but against the Communist Party. And also the declared policy of the Conservative Party was that they would not tolerate a takeover and compare it Mr Chairman, with cases which have already served, for example cases from the ANC, for example in Messina. The ANC themselves decided they take out a leader in the name of Mr Lukela and other people. They have done that with a political motive, they have done that to force this government to overthrow the government. And with respect, it worked, and here the Conservative Party said we are going to fight fire with fire, we are not going to use conventional methods and he forms part of this. They said we have to mobilise, we have to act in a resistant way and while this process is in the near future, how else could that be interpreted? It could not have been otherwise, that there was a quiet to put it that way, policy that violence could be used. What form of violence, that could not be prescribed. In any war situation, in any violence committed during war, in a bush war and underground activities, you cannot expect otherwise. Just as in the case of Police when they killed various people. JUDGE NGOEPE: I was talking about Mr Derby-Lewis who was a very senior person. I am not talking about foot soldiers, who may not know what the policy of the organisation is. I was referring to Mr Derby-Lewis, precisely because of his position in the party and I would have thought that he would know at any given time, exactly what the policy of the party was. MR PRINSLOO: Honourable Chairman, this is the problem I have with the legislation. If you ask what is the policy of the party, if he said his co-leaders would go over to violence, that they said themselves, what more evidence could there be that there was violence? JUDGE NGOEPE: Well, what you are saying is that there was a time when Dr Hartzenberg and Mr Derby-Lewis did not have a common understanding of the policy of the party? MR PRINSLOO: Mr Chairman, I am not saying that. I myself am saying that they would not have used conventional methods any more. The debate is about what ... JUDGE NGOEPE: No, we are talking assassinations Mr Prinsloo. The way Dr Hartzenberg understood the policy of the party, the assassination of people was never part of it and you are saying in the mind of Mr Derby-Lewis, assassinations would have been part of that policy. MR PRINSLOO: With respect Mr Chairman, it has never been the ANC's policy to assassinate people, they have never said explicitly we are going to assassinate people, this shouldn't be viewed in isolation. It should be seen holistically. JUDGE NGOEPE: Mr Prinsloo, I want to know from you whether you are saying, is your argument that there was, there must have been a time when Dr Hartzenberg understood the policy of the CP differently from Mr Derby-Lewis, when it came to killings or assassinations? Are you saying Dr Hartzenberg and others' view was that the killing was not part of the policy whereas a person like Mr Derby-Lewis might have in his subjective mind, thought that that was the policy? MR PRINSLOO: With respect Mr Chairman, at that stage it could not be said that Mr Hartzenberg in his mind, had the idea of assassination, but what was clear from his evidence was that there would be resistance, mobilisation and conventional methods would not be used any more. This is evident also in the case of Koos Botha who has also applied for amnesty, he committed violence. ADV POTGIETER: Mr Prinsloo, I am sorry. Judge Ngoepe's point is actually how can a subjective belief in the case of Mr Derby-Lewis given his leadership position in the party, how can such a subjective belief be bona fide? MR PRINSLOO: Mr Chairman, it cannot be argued that which method had to be used, that that subjective view is not correct. You cannot say we are going to blow up a house, we are going to shoot somebody, we are going to poison somebody, we are going to keep food from them, anything would be an efficient method. ADV POTGIETER: No, the question is about policy. Judge Ngoepe asked you should the Committee find that there was no such declared or undeclared policy, where does it leave your client's case, then you said that he subjectively believed in a bona fide way that it was the policy of the party. Now, I am asking you how could it be bona fide in the case of Mr Derby-Lewis? MR PRINSLOO: Mr Hartzenberg said that it, what he said indicated violence. What he had in his mind was what he believed subjectively and he himself said Derby-Lewis could have believed that subjectively. He himself thought that, how else? ADV POTGIETER: Is it bona fide for a person who had direct access to the Chief leader of the party, that he is there where things are happening, could that be bona fide for such a person, to think wrongly that a policy of violence existed? That is my problem. MR PRINSLOO: Mr Chairman, he could have never believed wrongly in the climate of that time. As I have already said what they have stood for and what the threat was and what the state of war was in that climate, he subjectively believed. He was part of the party, he was in the top structure and then it cannot be expected that he would go to Hartzenberg and said listen, I am going to kill Mr Chris Hani, that would have been the end of the Conservative Party. It would have been ridiculous. ADV POTGIETER: It is not about a policy in such strong terms. MR PRINSLOO: It is about the climate which existed, and that forthcoming from that in which he subjectively believed would be in the interest of the party to promote this party and to prevent that a communist government, would come in to govern. And what else could we do if there were no other methods? With respect, by taking out a leader this was an efficient method at that stage. It was the same as to overthrow the whole country at the ballot box. JUDGE WILSON: But Mr Hartzenberg said that the policy of the Conservative Party was to act in a defensive capacity, so that they would be in a better moral position, they planned throughout to take up a defensive position. That is why you are being asked these questions. That was the policy of the Conservative Party, to take up a defensive position, to mobilise themselves so that they could defend themselves. How could someone have believed that it was in the interest of the party to sacrifice the moral position and go out and assassinate somebody? MR PRINSLOO: With respect Mr Chairman, what I am trying to say is this is what Hartzenberg said, but it was also said that they would not subject themselves to the government under communist rule, how would it be done otherwise? How could it be prevented? How could it be defensive, how could you defend what, if the country is not being attacked? What do you understand by that? With respect Mr Chairman, this mobilisation through resistance was to prevent that the country would be taken over and this was what happened afterwards. With respect, the leader could not say that he would have planned to kill people, or would have allowed people to be killed. That would have been an offence. MS KHAMPEPE: But Mr Prinsloo, the idea of a whole mobilisation strategy, was to stage a visible demonstration of the CP people against the government with a view of achieving a political objective, which in a way is merely defensive and not pro-active? MR PRINSLOO: That would have been one method Mr Chairman, surely. Just as the ANC had various structures and they said we would make the country ungovernable. They mobilised the church for example and they mobilised, a pattern was created by the ANC how you mobilise and how the various structures were intruded or invaded. How do you prevent it otherwise? A climate was created in the country, how violence was being practised. How people interpreted it, how the CP said we will fight fire with fire, what is the fire? It is the threat of an overthrow. CHAIRPERSON: Was part of the complaint or rather the grievance of the CP really directed at the NP, wasn't it? That it believed that the NP was selling out the Afrikaner people and those who believed in the policy of the CP, isn't that so? MR PRINSLOO: Honourable Chairman, it is stated in the applicant's evidence, but at that stage the National Party was not a factor any more. The CP and the applicant believed that they were not in government any more, and that the takeover was (indistinct), it would have been without any purpose to kill the leader of the National Party, because according to the CP, he didn't mean anything. He had already thrown in the towel. It was a question of the resistance, the conflict was between the ANC/SACP and the CP and the people wanted to prevent that the country ... MS KHAMPEPE: Mr Prinsloo, you have previously referred to a situation which was caused by the CP leaders, in that through their speeches they promoted the use of violence. Is it not true that in fact the CP leaders were merely prognosticating about the possible use of violence in the future, in the event of all their options having become exhausted and that in fact could not have been reasonably interpreted even by Mr Derby-Lewis, to have been tantamount to a policy of violence by the CP? MR PRINSLOO: Honourable Chairman, those methods that you've mentioned, they were said and according to Hartzenberg's evidence, it is clear that those other possibilities and other processes were non-existent at that stage. The democratic process did not exist any more and the climate at that stage, when that took place, and preceding that, it should be looked at all the Right Wing groups which had the same purpose, that is to remember that ANC/SACP would rule the country, and the history speaks for itself. MS KHAMPEPE: But I don't think that was the evidence of Mr Hartzenberg. He conceded that the constitutional part was constantly being eroded at that time. But that still remained an option and they were still party to the Codesa talks? MR PRINSLOO: Honourable Chairperson, that is what he said, but he said the chances were few. According to the evidence by the applicant, it was that Codesa was ruled by the ANC/SACP alliance. MS KHAMPEPE: (speaker's microphone not on) MR PRINSLOO: With respect Mr Chairman, in those circumstances in that climate and the applicant considered the way how this takeover should be prevented on behalf of the party, because on behalf of whom did he have to do that? He did not belong to any other party, he did not support any other political party. He supported the Conservative Party, he lived for the political party and that is proven by his history, and with respect the Conservative Party never repudiated him. I am not talking about the assassination, I am referring to his other actions. ADV POTGIETER: But Mr Prinsloo, why did he not clear out this intention regarding Hani with the CP leadership, he had access to the top leadership? MR PRINSLOO: With respect Mr Chairman, a man in Mr Hani's position, who was loved by the greatest majority of the black population, they supported him, that was a fact, and there was a fact that there was going to be a takeover. They would have given their lives to force this government to a takeover, how would they now turn around and say we are willing to give little bits and pieces of the country to this and that, and while John Robby said he wouldn't do that, how could that have happened? What purpose would it have served, what did he have to clear out? ADV POTGIETER: Why did he not clear it out with his own party? Why did he not discuss it with the Conservative Party leadership to take this radical step to assassinate a political leader? MR PRINSLOO: As I have already said Mr Chairman, if he had gone to the top leadership in the Conservative Party and told them that he was going to kill Chris Hani, it with respect, would have meant that he and Treurnicht would have landed in jail, and then the Conservative Party would have been the end of the party. If you take the leader away, the party would have been disbanded. You would remember that Von Lieres and the Attorney General stated it to Mrs Derby-Lewis, that was effective, take the leader out and then the party falls apart. If you had to clear that out, he and other people compromised themselves to committing an offence. That is not logistics in a war situation. I don't want to make a comparison but it worked very well in regard to the ANC. ADV POTGIETER: You see, you are reacting and you are based on a position that Treurnicht would have said go out and kill him and kill all the others, and if he said no, Derby-Lewis, this is not the policy of this party, then Treurnicht would have not been part of an offence. MR PRINSLOO: It could have been an option yes, but at the moment he did that, he became part of that and this leader of the party would have become part of this. JUDGE NGOEPE: Could it not be argued that he did not do it because he knew it was not the policy? MR PRINSLOO: Mr Chairman, without referring to the policy again at length, this would go against everything because then he would involve and this would be a conspiracy, it would have been a conspiracy with the Conservative Party to commit an offence, and the party would land in jail. Now, he would do it on his own, without involving other people. JUDGE NGOEPE: That would have been the consequence of the policy then. MR PRINSLOO: I beg your pardon? JUDGE NGOEPE: That would have been the consequence of their policy if they would have landed in jail. MR PRINSLOO: Mr Chairman, if that policy was declared, they would have landed in jail, without even having done something. If they have said openly that they would commit violence. JUDGE WILSON: You said his leader Mr Treurnicht, would have landed in jail with him? MR PRINSLOO: That is correct Mr Chairman. MS KHAMPEPE: But Mr Prinsloo, I mean you say that it would have been impossible for him to clear that with the leader, Mr Treurnicht, because of a possible arrest with Mr Derby-Lewis, but he had previously cleared with Mr Treurnicht, the issue of the anti-Chris, the killing of an anti-Christ? MR PRINSLOO: He cleared with respect Mr Chairman, the principle of killing it, he didn't say he will kill somebody. MS KHAMPEPE: And couldn't he have done the same with regard to the killing of a political leader? Clearing the principle and not the actual deed? MR PRINSLOO: With respect Mr Chairman, if you say you will kill a leader, then you are committing yourself to killing a leader who is in existence. MS KHAMPEPE: We are dealing here with an issue which was not crystal clear, the killing, assassination of leaders of political organisations, wasn't a policy which was as crystal clear to the CP and why shouldn't he have done that, why couldn't he have cleared that principle with Mr Treurnicht? He had a very close association with Mr Treurnicht, he also had a very close association with Mr Hartzenberg? MR PRINSLOO: Honourable Chairman, as soon as the killing of a leader was mentioned, people would put two and two together and compromise this person. Why would he ask that? JUDGE NGOEPE: I think at the end of the day your problem is there was, you are saying there was a political party, it didn't have the courage of accepting the policy which would put them into jail, however, you are now constraint to argue in some way, that there was in fact a policy. When those people themselves, perhaps for sensible reasons I don't know, whereas those people themselves, because they didn't want to go to jail, they didn't have such a policy, they didn't have the courage of coming out and declaring it, because they didn't want to jail, they might have gone to jail, you are right. But now you find yourself in a situation where by reason of the fact that those political leaders did not have the courage to openly admit violence as a method for fear of going to jail, now you are at a disadvantage now, you are constraint to argue in some way, that oh, no, there must have been such a policy. MR PRINSLOO: Mr Chairman, with respect, I am not limited to that. The National Party up till today, will not agree that they had such a policy, but the evidence is clear that there was a policy like that, because they kept the National Party in government. JUDGE NGOEPE: All I am saying is that they are putting the applicants to some extent, in a difficult position. They are making it a little bit difficult. MR PRINSLOO: With respect, it is so, but it goes back a far way. They could not have had a declared policy of violence, because they would have then been incarcerated. The National Party would have liked it to incarcerate the Conservative Party if they supported violence. MS KHAMPEPE: But for purposes of the present application, it wouldn't have been so difficult for the leaders of the CP to have come before this Committee to disclose that there was such a policy? MR PRINSLOO: Honourable Chairman, I don't know whether one of them would admit that. I don't know whether they had a policy like that, who would come here and say I have committed an offence without having applied for amnesty? Should a leader have done that and based on the argument that he could do it, it would mean that a question would be put behind that party. Now, they agree that they were busy with violence and now the history has developed and there is quite a different approach at the moment. At the moment it has to do with reconciliation, we are not concerned with what had happened in the past. The party at the moment has the same objectives, but they want to follow a peaceful road. MS KHAMPEPE: Mr Hartzenberg was quite emphatic on this issue, he stated that violence could not be used at that stage by the CP to achieve any of their political objections, that was his evidence. That is my problem. MR PRINSLOO: The problem Mr Chairman, is viewed in isolation. While this interview was held and said are you against violence, naturally he had to say yes, we were against violence. We were against violence in its broadest sense, but violence for a specific purpose is a different question. We could see it in relation why was it committed, what was the motive, what caused it, we should all see this as one. With respect, according to Dr Hartzenberg, it was seen as a full scale war. How does one wage war without violence, that amazes me. JUDGE WILSON: You defend yourself against the attack. Hartzenberg stressed that the attitude of the party would be defensive, to defend itself against attack, to have the moral high ground. MR PRINSLOO: He did say so, that is correct. But in terms of the background of the climate, it must be considered. CHAIRPERSON: In the background of the climate you talk about, there was a statement by Dr Treurnicht at Paardekraal was it, where he said that we must prepare for the next war, words to that effect? MR PRINSLOO: That is correct Mr Chairman. CHAIRPERSON: Now, that statement about we must prepare for another war, rested there because at no stage did the party say we have now declared war. Have the party said that we have now declared war? MR PRINSLOO: Nobody said we have declared war Mr Chairman, with respect, there was a war in existence. CHAIRPERSON: So now why they said that we must now prepare for war, we must arm ourselves and so on, that doesn't mean that we have now declared war? It means that we are preparing for a war? In that situation without a war being declared, an attempt is made, or rather assassination is made of a high profile political figure, without a war being declared. That assassination cannot then be said to be part of the policy because the policy is prepare for war, when we declare the war, then we will take control. All right, the war was never declared. An assassination is carried out and quite clearly that happened without the CP declaring a war, albeit it at that time there was evidence of violence of various sides in the country and so on, but that violence in the country had been carrying on for some time. But at this crucial time of the killing of Chris Hani, the Nationalist Party had never taken the decision to in fact declare war, had it, the CP? MR PRINSLOO: Honourable Chairperson, there was never any declaration of war, but a war did exist. With respect, if one compares this to the period when the ANC and the SACP waged their war, there was no expressed declaration of war, but there was a struggle and a fight, and a struggle consists of two sides, one shoot the other, one plant bombs towards the other, one kill the other, but there was killing on both sides, but the perception existed that a war existed and furthermore tat during this time, there was a particular war. And that is what the witnesses said yesterday, they were called here independently and the testified that they perceived it as a war. In those circumstances it was regarded as a war, and the circumstances which had to be prevented would be the takeover of the ANC and SACP while the National Party had lost its course. That is what they were prepared to do in order to prevent this. That is the objective that the applicant held. Honourable Chairperson, as I have already stated, the target which was set, was Mr Chris Hani to bring that particular party to its knees, to take out the leadership so to speak, and then further problems or to combat further problems that existed. I would like to argue with respect that the applicant, as we have already referred to in our heads, falls within the category of Section 20(2)(a) and (2)(d). With reference to the criteria, I have ... ADV POTGIETER: I beg your pardon Mr Prinsloo, before you move on from that point. Section 20(2)(d), which of the possibilities does your client support for his case? Does he maintain that he was a member of the CP, and he acted within the ambit of his duties or that he acted within the ambit of his express or sworn capacity? MR PRINSLOO: I would like to explain it as follows. The applicant had certain duties which were explicit, that was mobilisation and the resistance to the ANC and SACP. The resistance to the takeover of the SACP and ANC, in terms of his capacity, it involved the methods which he would apply in order to carry out this resistance. These duties of mobilisation for resistance and stock piling of weapons, were issued and that was within his sworn capacity. But as far as it involves 20(2)(c) ... ADV POTGIETER: I understand 20(2)(a) is quite obvious to follow, I am more interested in 20(2)(d). You are saying that his case is that as part of his duties in the mobilisation campaign, he launched this action, this assassination of Mr Hani. MR PRINSLOO: As I have said, the resistance which was announced by the CP to prevent that the ANC and SACP come into power, seen in the broader sense, all the speeches the negotiations of the CP leadership, these were all methods of prevention. It was part of his duty, his sworn capacity and duties. ADV POTGIETER: So this was part of his duties within the CP as an office bearer, a senior office bearer? MR PRINSLOO: That is correct. ADV POTGIETER: And he also had a sworn capacity to carry this out? MR PRINSLOO: That is correct. ADV POTGIETER: According to what did he have that capacity? MR PRINSLOO: In terms of what was said by the CP, what they announced that they would go forward into resistance to prevent the ANC and SACP from coming into power. ADV POTGIETER: Thank you. MR PRINSLOO: Then I want to say with respect, he acted in a bona fide capacity. In so far as it affects Section 20(3) the motive is discussed in our heads and I have already referred to that. I would like to argue with respect, that the context within which this offence was committed, it was committed during a time when a political struggle existed between the CP and the ANC and SACP alliance, and their allies. CHAIRPERSON: Where are you in your heads of argument, can you just tell me please? MR PRINSLOO: I was just going according to the Section now Mr Chairman. I will just let my colleague find it in the meantime. Just a moment please Mr Chairman. CHAIRPERSON: Yes, quite all right. MR PRINSLOO: It appears on page 53 of the heads of argument. It begins at paragraph 2 and proceeds to page 54, which refers to other aspects as well. CHAIRPERSON: Yes, thank you. MR PRINSLOO: With respect, the only other aspect which I would like to deal with, which is also referred to, is paragraph 23(f), the relation between the action and the political objective, specifically the proportionality. In terms of the evidence of the witnesses who maintained that the leaders had to be killed and what the consequences of such deeds would be. With respect one must specifically consider the time, point in time when the action was taken and what the objective was. The objective was to prevent that there would be an ANC/SACP takeover, which was an eminent threat at that point. And that takeover which was a threat, must be weighed up in conjunction with the policy of the party that they were opposed to it, the feelings created amongst the followers, these two aspects must be balanced. If there would be an ANC/SACP overthrow, it would be over, it would be like a death sentence, there was a great feeling of finality regarding that, within that context. Therefore within that context, to take out a leader would be an act of prevention and within the context of war, which they believed existed, to take out the leader would prevent that alliance from coming into power and prevent the disadvantages and the threat which existed for the CP as a party. JUDGE NGOEPE: I was wondering whether you are comparing correct situations because I thought when you speak of proportionality, you would compare the ultimate objective not with the assassination per se, as an event, but with what they told us in so many words, was what they wanted to achieve, namely to create chaos. To create a chaotic situation during which possibly thousands of innocent people would be killed during that confusion, because they said they wanted to create a confusion during which the Right Wing would take over. Now, I think maybe you should, when you speak of proportionality, you should compare the ultimate objective with the scenario that they wanted to bring about, the chaotic situation that they could have brought about, that they wanted to bring about. MR PRINSLOO: Honourable Chair, I understand what you are referring to that chaos was the objective, and that various people would be killed in the process. That a racial war would occur and as I also understand it in this aspect, during that time period when this killing would take place, the Police and the Army would take over and they would recreate order, and that that takeover would be intercepted, that is how I understood it. What I would like to propose is that the objective which they held, in comparison to the actions that they took, as well as the consequences which it held, in conjunction with the idea that the Army and the Police would take over, and that the system would be reinstated, and that the parties and the leadership on the Right Wing, would be reconciled and take over, it would result in a greater level of reconciliation and cooperation between the Right Wing leadership, that would have been the objective as well. JUDGE NGOEPE: Well, I thought I understood your evidence to be that a situation would in consequence develop, a situation of chaos, and the Police and the Army, there would be a situation when they would not be in control, and in that milieu, then the Right Wing would then grab power or something to that effect? MR PRINSLOO: Honourable Chairperson, that is how the testimony devolved, but the leadership would also come together again, the Right Wing leaders and they would utilise the situation and reinstate order and prevent any further ANC/SACP takeover. JUDGE NGOEPE: Well, if the Police and the Army came in and restored the order, that would have been prevailing before the assassination, what would they have benefitted then, what would the Right Wing have benefitted, except that people would just have been killed? MR PRINSLOO: With respect Honourable Chairperson, if a leader would be taken out from the SACP, the objective was to make the party disintegrate. Mr Hani as a leader was seen as a successor to Mr Mandela, he was a strong leader who had a lot of supporters and to take him out, would create confusion and chaos. It would have the same influence of blowing up the ballot boxes and bringing about chaos, in order to make people afraid of voting. It would create that kind of situation, it would bring the National Party to another type of insight, where they would realise that there were elements who did not want this process to take place, that certain things had to be reconsidered. JUDGE WILSON: Are you suggesting the Nationalist Party did not know that there were certain elements who did not want this to take place, weren't they told that time and again by the Right Wing? MR PRINSLOO: That is correct. JUDGE WILSON: Are you also suggesting that if the Police and the Army and the Right Wing took over, there would have been peace in our land? MR PRINSLOO: Honourable Chairman ... JUDGE WILSON: Do you think Mr Derby-Lewis could have believed that? MR PRINSLOO: Honourable Chairman, what he believed under the circumstances was that it should be prevented that the ANC and SACP take over and that is why those methods had to be used. Whether or not there would have been peace, is a matter of speculation. ADV POTGIETER: Mr Prinsloo, I think that is exactly the problem which is emerging here. All these situations and scenario's which you have sketched, are supposition, very loose suppositions, and let us assume that after Mr Hani was murdered, and that this chaos had ensued, or that the chaos had not ensued. MR PRINSLOO: Well, then another decision would have to be taken regarding further steps. ADV POTGIETER: Was there any contingency plan which was suggested? MR PRINSLOO: If I understand the evidence correctly, the applicant would have consulted certain actions within his party but that went wrong, because Walus was arrested. ADV POTGIETER: The question was it not a very reckless form of behaviour to unleash something so loosely, something which could so easily move out of control, without any definite structures? Was that not out of proportion? MR PRINSLOO: If one considers that even members of the Police have planned to kill Mr Hani in the past, that this surely must have exercised some kind of influence that it would have some kind of consequence to take out such a leader. To take out a leader, would definitely have the consequence of disbanding the party, so regrouping would be necessary and reorganisation would be necessary, and such an action would definitely have had this sort of effect. CHAIRPERSON: May I just ask you, are you telling me that I must accept that an acute, trained, experienced politician, seriously believed that the killing of Chris Hani was going to cause chaos in the country? MR PRINSLOO: With respect, that is what he believed. That is what he maintains in his evidence. CHAIRPERSON: I understand that that is the evidence, I understand that that is the case you are making out, but isn't it more likely that the chaos was not going to be caused by the single death of one man, but the plan went very much further, that to cause chaos effective chaos, to enable the CP and others to take control, would mean eliminating a whole group of leaders and only then would there be chaos? As things stand, if he believed that the killing of Chris Hani itself would cause such chaos, then quite clearly he has miscalculated the position terribly, isn't it? MR PRINSLOO: Honourable Chairperson, with respect, during the 1976 unrest, by shooting one single student by the name of Petersen, total chaos was unleashed in Soweto. CHAIRPERSON: I can understand something happening in Soweto at this time, I am not talking about an experienced parliamentarian, a politician of considerable experience. MR PRINSLOO: With respect, by killing someone like Mr Hani, with respect it would have then - one could have assumed that this would have taken place. CHAIRPERSON: Are you really saying that he genuinely believed that the killing of Hani would produce the necessary chaos in the country? MR PRINSLOO: Subjectively he believed it, and with respect, according to the circumstances, that belief was bona fide. JUDGE NGOEPE: I suppose you could say particularly if the murderer had not been apprehended, I suppose you could argue that there could very well have been serious consequences? I am trying to help you, I am not against you. MR PRINSLOO: With respect, I appreciate that, but one must consider both sides of the circumstances. If the murderer had not been caught, what would the people have said, our leader has been killed, it is the National Party who are in power, who did this, they are allowing it, that is what Mr Mandela said at one point. He said that the National Party had criminalised the deceased, Mr Hani, that they had marked him as a target. If one considers that, then that argument of yours could be extremely valid. CHAIRPERSON: We will take a short adjournment at this stage. COMMISSION ADJOURNS ON RESUMPTION MR PRINSLOO: On behalf of and in support of such an organisation, to support a political struggle in a bona fide way, which is waged against the State. Here is referred to a political struggle, not a policy and there was a political struggle between the CP and the SACP and the applicant's evidence is that he committed this act to promote that political struggle, which existed. By eliminating a leader of a party, it could be interpreted to be to the benefit of that party, the CP because the opponent's leader was eliminated, it is to their detriment. This would then promote this political struggle, or had this purpose in mind apart from a policy, but it depends on the nature of the political struggle. With respect the political struggle which existed, was of the nature that the SACP/ANC would not give in. They wanted to take over, there were threats of violence. There were even threats in the past, that leaders of the Conservative Party would be eliminated and other things. ADV POTGIETER: In other words, you can't have a non- violent political struggle by means of violence, that is the point. The nature of that political struggle, that is the importance of the policy of the Conservative Party. MR PRINSLOO: With respect Mr Chairman, there was a political struggle and that struggle, violence was part of that struggle in that milieu. ADV POTGIETER: That is a different point. I wanted to draw your attention to the nature of the political struggle. MR PRINSLOO: The rest I have already submitted to the Honourable Committee, what the struggle was, and what the objectives of the party were. CHAIRPERSON: Do carry on. JUDGE WILSON: Sorry, do you say that the application is under 20(2)(a)? MR PRINSLOO: Correct Mr Chairman. JUDGE WILSON: So (f) does not apply? ADV PRINSLOO: Yes, (f) does apply as well Mr Chairman, because it covers 22(a) and (d). JUDGE WILSON: My copy of the Act which I was given, was told was completely up to date says any person referred to in paragraphs (b), (c) and (d) ... MR PRINSLOO: (a), (b), (c) and (d), according to mine, Mr Chairman. I don't know, mine might be a wrong one. CHAIRPERSON: We will clear that up, do carry on. MR PRINSLOO: Thank you. Mr Chairman, the other aspect is about full disclosure, and here I am referring to various witnesses. The applicant and others, but specifically I want to refer to later witnesses. Mrs Venter was called here, and with respect I want to argue that Mrs Venter was a very good witness. Her evidence was clear that on the 10th of March, that firearm had been taken out of her house to Mr Derby-Lewis, and she moved into the house at the beginning of March. On the 10th of April, she saw Mr and Mrs Derby-Lewis. Mrs Derby-Lewis' evidence regarding her products, the Sportron products is indisputable and she did not remember a previous statement she made, and she gave a very good explanation of what happened. As you can see from her evidence, I could not see it myself, you asked whether she had signed and it was taken away, she supported this evidence and she was a very good witness and she supported Mrs Derby-Lewis' evidence. Mr du Randt with respect, I wanted to argue he is not an intelligent person you expected. The documentary facts supports his evidence that there was an election for a Mayor, that was also his election in the Supreme Court. On that day, and according to the programme it took place on the 10th of March 1993, and a jersey would have been delivered and with respect, I want to say under the circumstances, it cannot be said that Mr du Randt was part of a conspiracy. He or Mrs du Randt regarding this aspect. A jersey was delivered, in his innocence he came here and he gave evidence here, he gave evidence in the Supreme Court, he was not regarded as a co-conspirator. The same applies to Mrs Venter. She did not testify in the Supreme Court case, but it is clear from her statement provided to the State, that they had to accept with respect, that the evidence of her husband, Mr Faan Venter is supported by hers. JUDGE NGOEPE: Sorry, I don't want to hold you up unduly, but with regard to Mr du Randt, what is his evidence? Was the weapon handed over to Mr Derby-Lewis before his daughter's birthday or after or is it just a confused aspect in his evidence? MR PRINSLOO: Mr Chairman, it is very clear if you look at this evidence in the Supreme Court, that he was led, he was led by Mr Von Lieres, he also gave this evidence here, and in that he said the witness is not sure, he was referred to the 25th of February, then he referred to the election of the Mayor, that is a fixed date. That date is fixed and that is also ... JUDGE NGOEPE: Except that he was not even consistent here before us, he would go backwards and forwards on that point. MR PRINSLOO: Mr Chairman, he had a problem with this, but he was led, it should be taken into consideration, he was led by the fact that this election took place on the 10th of March and therefore he was convinced. Mrs du Randt, in her evidence under cross-examination she agreed that she could have made a mistake regarding the date, she conceded to that. And furthermore the programme of the President's Council as presented by Mr Derby-Lewis, shows that he was not here then, but in Cape Town and that evidence is supported by Mr du Randt's testimony. With respect I want to say under these circumstances, the only thing which is a fixed date, is the 10th of March. Mrs Venter furthermore says that according to her husband, Mr Derby-Lewis asked this weapon for stock piling. MS KHAMPEPE: Mr Prinsloo, Mrs du Randt was cocksure that the parcel was delivered at Mr Derby-Lewis' house before her daughter's birthday. MR PRINSLOO: With respect, under cross-examination she conceded after I indicated to her that Mr Derby-Lewis was not here at that time, and she conceded that she could have made a mistake. Taken into consideration the fact that the du Randts have apparently according to their evidence, regularly on a Thursday, visited their daughter in Pretoria. And then if you look at Mr du Randt's statement to the Police, he said that he made this statement under difficult circumstances. The policeman first wrote the date as the 31st of March, then they changed it. With respect Mr Chairman, this Committee fortunately has the advantage of fixed dates where it could indicate to a specific event, this could be seen from the programme and also as being said by Mrs Venter. She is a very intelligent witness and not at all - and she gave clear evidence regardless in depth cross-examination by Mr Bizos. Chairperson, then we had the evidence of Captain de Waal regarding the statements of Mrs Derby-Lewis. Captain de Waal says he warned the witness according to Judge's Rules. If you look at the evidence that Colonel Van Niekerk told the witness, you are going to stay here until you speak, and he is a Captain, he came here, and he said that he did not warn her according to Judge's Rules, because it is not clear from her statement, I am not a witness, but during my whole career, I have never seen that a suspect makes a statement in detention, Section 29 detention, and I can understand if she was taken to another Officer, that she had to be warned according to Judge's Rules, and then make her statement. But here Mrs Derby-Lewis gave evidence that the statement was made and that she would be used as a witness. This is supported by the fact that this was the purpose of Captain de Waal. Captain de Waal's evidence was unacceptable when he said that Colonel Van Niekerk told him that a team, apart from the Security Police, would blindly question a person without knowing anything about the matters of that case, things which he already told Deetliefs. Taking into consideration that she had mentioned certain things to Deetliefs, which is available on video tapes, you can have a look at that, and then he also said that she wrote a statement in her own handwriting, and then she is told that what you have just said now, according to information, is not true. Your husband said something else. If you have a look at that and you look at her handwritten statement, volume R4, just one minute please, specifically regarding the firearm and the list Mr Kemp provided, if you look at the statement of Captain de Waal in Exhibit AC page 2 where he says at the bottom regarding things which are unclear and there are things which do not coincide with her husband's statement. In other words he knew what Deetliefs had said and he said he did not know. Furthermore he said she stated that her husband never indicated a firearm, while her husband during questioning did indicate a firearm. She went further, saying that she now remembered. If we look at the statement, her handwritten statement, paragraph 66 on page 158 of the typed version, it's page 159, paragraph 72: "then that Cuba had possibly done the deed and Clive and I later confirmed that Cuba had used the gun which Clive showed me one day in the house (with a silencer). Clive and I then left. We were both of course shocked at the news and then we went shopping" If you look at the handwritten document at page 66, paragraph 72, you will see where it all fits in. Not on the bottom part of the page, two thirds down the page. There it's written: "It was obvious to me" that's what is written there. It's very clear that she had written something else, where's that page? There's more written on this page, it's evident here that she had written more on this page. It is very clear that she had to re-write this and had to fit this into this page. If you look at the time when he questioned her on the 26th of April she had already completed her statement to fit it into this. If you have a look at the list - the argument regarding the list, when he said that Mrs - it's paragraph 72 and not 66, I made a mistake. JUDGE WILSON: What page? MR PRINSLOO: I think it's 186, it's not very clear on my page as it's marked. JUDGE WILSON: ...[inaudible] MR PRINSLOO: Paragraph 72 Mr Chairman, that's correct. Thank you Mr Justice Wilson. If you look at the time when these things were said on the 26th of April according to Captain de Waal, if you look at what he said about the list which is referred to just previously and which was obtained from Arthur Kemp, where she asked him: "Was Arthus Kemp taken into custody?" It's a continuation of these pages, and you will see that Arthur Kemp, on the 21st of April already made his statement and there he conceded that he had provided a list, compiled a list and provided it to Mrs Derby-Lewis. This was a known fact to Captain de Waal at that stage because he himself said he arrested him, at least he arrested Kemp. Now to come and say that he then first wanted to establish certain facts, does not make any sense. From paragraph 66 in that same statement you see the part, the handwritten part regarding Kemp matter and furthermore reference is also made to Kemp in the other paragraphs. Mrs Derby-Lewis testifies that Captain de Waal told her what to say. If you take this fact into consideration, that none of these statements made according to Section 29 formed part of the trial, was never presented, on the contrary at that stage it was not a legal requirement in any case that statements and a dossier be made available. At that time when Mrs Derby-Lewis was in custody she kept notes and after she was released according to Section 29, she specifically said what her experiences were in custody in terms of Section 29. Exhibit 1A was what she wrote and furthermore she also wrote an article which appeared in the document: "Ons eie". In Exhibit A1 she said that she wrote hundreds of pages. CHAIRPERSON: Is it Exhibit 1A or Exhibit A1? MR PRINSLOO: Y1 Mr Chairman, it starts at Y1. CHAIRPERSON: Y1? MR PRINSLOO: That's correct Mr Chairman. It appears at page 7 of Exhibit Y Mr Chairman, at the bottom of the page. CHAIRPERSON: Yes, carry on. MR PRINSLOO: Honourable Chairman, it's not clear according to Captain de Waal why she's written contradictory statements. Now the Committee has the problem of what was said and what was not said. The other problem is, with respect, that you should look at what the value is of these statements taken under these circumstances. With respect, the value of these statements is to cause confusion and because of that reason these cannot be used to evaluate Mr Derby-Lewis, the applicant. It's also clear where the insertions were made ...[intervention] CHAIRPERSON: ...[inaudible] on which we mustn't consider these statements was because some of what is in that statement, she claims was what she was told to say by Mr de Waal, is that the reason? MR PRINSLOO: That's the one reason Mr Chairman. CHAIRPERSON: Are there any other reasons? MR PRINSLOO: Mr Chairman, she said that she was forced, she was under Section 29 and she did not want to make a statement. If you look at the video recordings, it is clear that she did not act voluntarily without legal assistance. And also, in here detention file it is indicated that she was ill at a certain time while de Waal said she was fine. She had heart problems, she received medication. What then with respect, is the value of a statement made under these circumstances and ...[intervention] JUDGE WILSON: Mr de Waal said he himself made arrangements to take her to be seen by her own doctor, that's hardly saying she was fine is it? MR PRINSLOO: That's correct Mr Chairman. Just a moment please. If you take into consideration that Mrs Derby-Lewis, initially during her incarceration while she was questioned by Deetliefs before she was under Section 29 but she did not have legal representation, under each question she said: "No answer, no comment." after that she was under Section 29 and van Niekerk said: "She had to talk." Mr Chairman, then I want to submit that these statements of hers do not have any value for the Committee to use it against the applicant because they were taken under those circumstances. With respect Mr Chairman, this Committee is aware of what Section 29 entailed. Today there is evidence of how people were handled to get the necessary information. Today it's not a law anymore and today it could even be claimed to be unconstitutional. There was an instance, I don't have the Judgment, where in a Civil Case they wanted to present a statement in a case of a witness being held under Section 29 and it was argued that that Section was unconstitutional and it could not be relied on because of that. This also makes sense in this regard. Mr Chairman, if you look at the statement taken or made by Mr Derby-Lewis and under the circumstances - firstly on the video recording, I think it's video recording number 3, it is clearly indicated how Mr Derby-Lewis begged Mr Deetliefs that he needed a legal representative and he said he could not make a statement under those circumstances. You could see on that video recording, it speaks for itself how he acted under those circumstances and Mr Derby-Lewis afterwards, how he was broken down and then he made a statement. What is the value then of a statement made under those circumstances and furthermore where he is told: "We are going to lock up your wife." He said he was protecting his wife and that was just natural, while he knew that that list which was used was a list presented to his wife by Arthur Kemp. That was a list from him to her and that had a certain connection with his wife. With respect, it was just a natural thing to protect his wife. In his evidence he told us how he obtained the list. He said he saw the list in Cape Town, he described the circumstances. Doctor Hartzenberg supports the fact that documents were placed on his desk by Mrs Derby-Lewis, he supports her evidence. There is no reason why Doctor Hartzenberg would tell a lie about something like that. And shortly Mr Chairman without using anymore of your time, these statements have little if no value at all, these statements which were taken under Section 29. And the Committee should rely on the evidence provided by Mrs Derby- Lewis in this regard. Mr Chairman, the evidence regarding the list. We understand from the family that it is alleged that there was a big conspiracy, that apart from these two applicants it's also alleged that Mrs Derby-Lewis - and also regarding the way in which the firearm was obtained - I've already referred to du Randt and Mrs Venter, Mr Venter's evidence was that Mr Derby-Lewis asked for a weapon for stockpiling. With respect, under the circumstances there is no evidence to the contrary and why would he tell Mr Venter that he was going to murder somebody with that weapon and then broaden a conspiracy which would have been unprofessional to do, to commit such a deed. The same applies for Mr du Randt. And it seems from his statement made to the police, that he is innocent. Mr Derby- Lewis could not tell him anything, he was in custody. He could not tell Venter because he was in custody. Mr Venter acted on his own behalf. Regarding Mr Kemp, during the trial and receiving further particulars the State said that Mr Kemp was not a co-conspirator. In the Court Judge Eloff also treated him likewise. Mr Chairman, this list with 19 names was faxed to Mr Kemp from Mrs Derby-Lewis, it was an open fax line. At that time, and it's no secret, telephones were tapped and faxes were intercepted so somebody would have been stupid, if it was a secret, to convey it in such a manner. She leaves those 19 names on her computer and the police had access to that computer. She knew then that on the 12th of April that list would become involved and that would be damning evidence. If she - why would she then leave that list on the computer, Mr Walus had already been arrested and there was a lot of fuss in the media? Honourable Chairman, Mrs Derby-Lewis was found innocent during the trial, why would she now here, she has no reason now to come and say: "I was not a co-conspirator", there's nothing for her to lose. If she comes here and says she was a co-conspirator she could have made an amnesty application, she knew her husband was applying for amnesty for perjury or anything like that. She does not apply for amnesty because she believes she was not a co-conspirator. If you look at these statements written by the police, they want to involve her, those parts which were put in. And in the end it looks as if for the police that later on she could have heard about these things but she did not know it in the planning stages while planning an assassination. With respect Mr Chairman, Arthur Kemp was the author of this list, he is the person who decided about this list. That was his evidence in the Supreme Court, he compiled this list, she had no control over that. And right from the beginning she said she required that list in order to obtain information to write certain things in the Patriot and a lot has been said about that. With respect, look at the list itself. Should it be a murder list one would have expected that there would have been full particulars. For example regarding Mr Chris Hani, all you find there is an address that says nothing, it's insignificant. It can't be regarded as a murder list. ...[intervention] ADV POTGIETER: Why are there ...[No English translation] MR PRINSLOO: I will refer to the indications made next to the other names. Mr Chairman, apart from these two people, Mr Mandela and the late Mr Joe Slovo, the other person - the only person where there - these are the only persons where there were descriptions of their houses. In the newspapers Mr Mandela's house was described. This was the same information contained on this list and the same is applicable to Mr Joe Slovo. On itself this was a public fact or public knowledge. If you take into consideration the wider public which read various newspapers, they knew the descriptions of those houses because we found it in the newspapers. He obtained that information from a newspaper. That was also according to his statement. With respect, those descriptions regarding certain security measures or not cannot be ascribed to the applicants. This was absolutely Mr Kemp's decision and here is no suggestion that Mr Kemp under the circumstances, was a co-conspirator or anyhow involved in committing this crime. As far as it concerns Mr Kemp, we've tried to get him here and we've already placed it on record but it was out of our control. Should you deem it necessary we have to make another plan. JUDGE NGOEPE: You have argued that - you have made certain submissions in relation to statements by Mrs Derby-Lewis but you do appreciate that should we accept some of the things she says in her statement it could very well mean that she was aware of the plan and that in turn would mean that the applicants did not tell this to us. MR PRINSLOO: Mr Chairman, Judge Ngoepe, do you mean after the time or before the time? JUDGE NGOEPE: Excuse me? MR PRINSLOO: That she knew beforehand or afterwards? JUDGE NGOEPE: Before. MR PRINSLOO: Before the time? JUDGE NGOEPE: Some of the things she says in her statement indicates she had foreknowledge. MR PRINSLOO: That a plan was being made that there would be an assassination? JUDGE NGOEPE: Yes. MR PRINSLOO: Mr Chairman, her evidence is that it was not like that. The applicants said it was not so. JUDGE NGOEPE: I'm saying that what stands in some of the things which she says in her statement. She says she had knowledge of that before. MR PRINSLOO: In her evidence she denied that she any knowledge but with respect, this refers to my argument ...[intervention] JUDGE NGOEPE: Yes, yes, I appreciate that, that's why I put it on the hypothetical basis, that assuming we accept, notwithstanding your submissions, if we were to accept that she did say what stands in her statements, some of the things would indicate that she had foreknowledge. And the implications thereof would be that the applicants did not make a full disclosure. MR PRINSLOO: Mr Chairman with respect, according to the statements, if I understand you correctly, that she had foreknowledge of this and not that she was a co-conspirator, that she had foreknowledge about this, yes. Mr Chairman, in which aspect would ...[indistinct] did she get this information with them knowing or without them knowing, that would be a different factor. JUDGE NGOEPE: With their knowledge. MR PRINSLOO: With their knowledge, for example when she said: "They did not show me the weapon" while the statement said: "They did show me the weapon" is that what you mean? JUDGE NGOEPE: No, I think, if you look at R2 or look at the typed version - I don't know, I hope it's correct, R4 page 252 for example. Yes, R4 page 252, the typed version ...[intervention] CHAIRPERSON: The last sentence in paragraph 44. JUDGE NGOEPE: Can you also see where she says: "Clive and Cuba decided on Chris Hani to be eliminated because of his particular brutal record" and so on and so forth and then she goes down to say that: "This does not mean to say that discussions between the two of them were not going on. Clive told me sometime in March that he and Cuba had decided upon Chris Hani as the person to be eliminated" You see, that indicates foreknowledge. MR PRINSLOO: Yes, it indicates that they had told her that there was a plan. JUDGE NGOEPE: If we were to accept that that is in fact what she said, it would mean that the applicants did not make a full disclosure. MR PRINSLOO: In this aspect it would be so. JUDGE NGOEPE: With regard to Mrs Derby-Lewis' knowledge to the whole thing? MR PRINSLOO: That would be correct if it would be accepted like that. I want to refer you Mr Chairman, to this part: "Clive and Cuba decided on Chris Hani to be eliminated because of his particularly brutal record and his position as Chairman of the SA Communist Party, which they believed never should have been unbanned". We have the problem now, did she say that? Did she know that before the time or afterwards? JUDGE NGOEPE: Well that argument with not apply in respect to the last portion I read to you, it will not hold. MR PRINSLOO: This is the problem we have with this statement, these parts which have been inserted. JUDGE NGOEPE: No, well, I don't know what you mean but what I'm saying to you is that the point that you are trying to raise will definitely assist you with regard to the last portion I read: "Clive told me some time in March that he and Cuba had decided upon Chris Hani as the person to be eliminated" MR PRINSLOO: Yes, that part is so. JUDGE NGOEPE: That one stands firm. MR PRINSLOO: Yes, that is so on that basis. Just one moment please. With respect, I want to argue that Arthur, there's no indication that he is a co-conspirator and the aspect I've referred to regarding Mr Derby-Lewis, I've already referred to in my argument regarding her statements. Then to come back to Mr Derby-Lewis himself. With respect, I want to argue that if you look at the facts which are fixed in this matter, there was for example, a plan to eliminate Mr Hani. A decision was made, a firearm was obtained, a firearm was used for this purpose by Mr Walus. Mr Walus executed this with Mr Derby-Lewis' approval and knowledge and on instruction from him for the purpose as indicated. There was no discussion at all of how the weapon was obtained, how it was given to Mr Walus. It is supported by the evidence in the Supreme Court as well, that the person who worked in the house saw this. We should look at the fixed facts of this case, taking into consideration that Mr Derby-Lewis was interrogated or cross-examined for days by Mr Bizos. I argue that he made a full disclosure in as far as his involvement and the reason why he committed this. His whole activities or actions refer to this. A further aspect is that it should be into consideration that Mr Derby-Lewis was initially responsible for his application and he had very little real representation. As statements are made it could be inaccurate. And he was politician who compiled this when he made this application. CHAIRPERSON: I don't regard the fact that he was a politician in any way as a handicap, do you? MR PRINSLOO: Mr Chairman, they have a tendency to write a lot and to talk a lot. I'm saying it with respect, I don't mean anything strange. Then I want to refer to when this conspiracy developed. Evidence was given by Mrs Beyers who said that she and saw Mr Walus in July 1992, he was sitting outside Mr Mandela's house. Mr Chairman, if Mrs Beyers' evidence was to be accepted as correct then this murder list is not necessary because Mr Walus in 1992 already knew where he was living, it was not necessary for a murder list. If Mrs Derby-Lewis was to be involved, if she knew about the conspiracy that then she had to put Doctor Mandela's name on that list. That was unnecessary if that evidence is accepted as true. Mrs Beyers with respect, if you look at her evidence and look at what she said, she say can't say in which newspaper she saw Mr Walus, from which point this - from which angle this photograph was taken, the time frame when it happened, why she did not go to the police with this information and under which circumstances she went to the police with this, except that she remembered that she conveyed it to Mr Mandela during a function. With respect Mr Chairman, if there was a bakkie like that, she made a wrong identification. If the Committee would accept this then it would support the versions of the applicants, that they did not have the murder list. And then it would also support Mrs Derby-Lewis' version, if she had already known where Doctor Mandela was living and further details. Honourable Chairperson, while I am dealing with Mr Derby- Lewis, there is also the testimony of the Mr Clark which cause quite a stir, which suggested that there was a plan that they would pay the defence Mr Derby-Lewis. With respect, those allegations cannot be true and any possibility that it could be true. With regard to this I would like to contend that he was a very open witness who was cross-examined by Mr Bizos ...[intervention] JUDGE NGOEPE: Just hold it there. When you describe him in the way that you are describing him, I'm not necessarily saying that there is evidence or there is no evidence of wider conspiracy but when you begin to describe to Mr Clark that way as a witness, I think I would have some problem because you see I think Mr Clark did not make any attempt to hide the fact the he was not impartial, he was not to be impartial in this case. He has demonstrated that and he indicated that he would not be coming here before us - if we wanted him, to he would only do at the instance of the applicants and I'm not so sure how helpful that kind of evidence is. And another thing is, well, as I've said to you it indicates some partiality of sorts, some partiality. It could indicate some partiality. And anther thing is, it's all very well for a witness to come and say: "Well these proceedings are part of a circus and the like, it is his right to say so. But when I have to come to a point where I must consider the credibility of such a witness, I have got to ask myself whether a witness who adopts that kind of attitude in giving evidence could be prompted, let alone feeling obliged in telling the truth and being honest. MR PRINSLOO: Honourable Chair with respect, as far as his attitude is concerned, whether or not he wanted to testify and his reasons for not appearing, that would involve his attitude. But respect, regarding his factual evidence I would like to argue that his factual evidence in indisputable and Mr Bizos with respect, cross-examined him thoroughly and there is no aspect in his evidence which would indicate partiality. He said that there were even possibility for negotiation. JUDGE NGOEPE: On this aspect of impartiality or partiality, are you saying that he was the kind of witness who would have been prepared to say or concede anything even if that thing would have been prejudicial to the applicant's case? MR PRINSLOO: With respect, he said very plainly that he had information on his computer which did not belong there, as an example ...[indistinct] JUDGE NGOEPE: So you are saying he is the kind of witness who would have been - who was so impartial that he would have been in a position to say or concede anything even if that thing would have been prejudicial to the applicant's case? Can he be described to be that kind of witness? MR PRINSLOO: I would argue that it would be so and that it did appear so. I regarded him as a very good witness. JUDGE NGOEPE: Did he regard these proceedings as a serious exercise or as a platform where you could just come and say what you want to say? MR PRINSLOO: With respect Honourable Chair, he appeared to be a person who had certain complaints or reservations. There are people in the media who have the same type of complaints but nonetheless he appeared here and testified open-heartedly without knowing what they would ask him, apart from the Visser issue. And Mr Bizos' cross-examination went much further than that. JUDGE NGOEPE: But ...[intervention] JUDGE WILSON: He's the first witness that I can recollect, who arrived here on his own with documents he wanted to hand in, with prepared speeches he wanted to make, isn't it? MR PRINSLOO: That's correct. CHAIRPERSON: That's not surprising because he had been consulted with and he was asked and he had agreed to comply with the requests of applicant's counsel. He had prepared himself to come and give that evidence. MR PRINSLOO: If he - during the trial at Pretoria he knew that he would be called in, it's generally known and at no stage did we have any reason to consult him and he was not consulted with. JUDGE NGOEPE: He might have told the truth at the end of the day but would it be unreasonable of a trier of facts in determining his credibility to take into account the points that I have mentioned to you? MR PRINSLOO: With respect Honourable Chair, the same decision can be delivered regarding Mr Kronen. He testified for the Communist party. Not once did Mrs Beyers ...[intervention] JUDGE NGOEPE: The points that I mentioned to you had nothing to do with the documents. I told you that his attitude, he has a certain perception about these proceedings and I said specifically to you that: under those circumstances, one should ask oneself the questions: "This kind of witness, could he have felt prompted or obliged to tell the truth and be open and frank to what he says is part of a circus". No witness is tainted with that kind of question mark. MR PRINSLOO: Honourable Chair with respect, with such an attitude he could not have arrived here with the purpose to place the applicants at an advantage. If he had come forward with that purpose in mind, he would not have adopted that attitude and he would have then have been partial in his evidence. JUDGE NGOEPE: My question pertinently to you was, do you think it as unreasonable for a trier of facts in determining the credibility of such a witness, to take those things into account, would you or would you not? MR PRINSLOO: With respect, it should not be viewed in isolation but be seen in terms of his testimony as an entirety and then be judged but one should not look at singular aspects. I would like to maintain that his entire testimony should be weighed up. CHAIRPERSON: Well, it became quite clear that he had very strong views on his political beliefs. He had strong views of the Truth and Reconciliation Commission. He did not think it necessary to hide or conceal his views about that. He felt very, very strongly in favour of Mr Derby-Lewis and Mrs Derby-Lewis and his commitment to the cause of Mr Derby-Lewis became quite clear in his evidence. What is being asked by my learned friend here, my brother here, is that quite clearly, can this witness be described as impartial? MR PRINSLOO: With respect, in terms of his evidence there is nothing which indicates to the contradictory, that he was partial. CHAIRPERSON: Carry on. MR PRINSLOO: ...[No English translation] apart from the fact that funds would be applied for the defence of Mr Derby-Lewis. When were the Freedom Front and the Volksfront established, when was the money stolen. Look at the facts surrounding the issue. There's nothing in his testimony which indicates facts which can be used in this relation and I am surprised that he was needed as a witness. His testimony was anything but satisfactory and it contributed absolutely nothing to the case. Just a moment please. Honourable Chairperson, another aspect which should be studied closely is the time period when this deed was committed. I would like to argue that this deed was committed at a time when there was definite conflict and a struggle between various groups and parties and it cannot be argued that peace prevailed. I would like argue with respect, that no possibility existed other than to accept as a fact that there would be a takeover by the ANC/SACP Alliance at that point and that under those circumstances it would have been beneficial for the party to which Mr Derby-Lewis belonged. And under the circumstances, Mr Derby-Lewis fulfilled all the requirements regarding this Act and if amnesty would be granted to Mr Derby-Lewis, reconciliation would be further promoted in this country. I would argue with respect, there is nothing which Mr Derby-Lewis at this point, which indicates that he would not promote reconciliation, he is no longer involved in politics. At this point in this country the CP is promoted to negotiations. And at this point with respect, no violence is being committed by members of the CP. And in that respect, with respect Mr Chairperson, especially where various people particularly white males in this country are feeling neglected yet they are well treated otherwise to take a place in society, that is the endeavour of Mr Derby-Lewis. There is no violence on his behalf, no violence in mind. And I argue with respect, that amnesty be granted to him and that this will help to promote and establish reconciliation within this country. CHAIRPERSON: Thank you. JUDGE WILSON: Can I let you have the 1995 amendment to the Act, Section 9. I don't know if there has been a subsequent amendment ...[no sound] CHAIRPERSON: Yes Mrs van der Walt? Yes Mrs van der Walt? MRS VAN DER WALT IN ARGUMENT: Thank you Chairperson. I will attempt not to repeat what Mr Prinsloo has stated. There are certain aspects which I wish to highlight in my argument. Firstly it is the applicant who in terms of Section 19(1) provided further details with regard to the question 9(a)1 which is read together with question IV. The applicant was honest towards the Committee by saying that he compiled his application with the assistance of Mr Clive Derby-Lewis and that also in paragraph 11(b) he did not state that he had received an order. I would like to put it to the Honourable Committee that the Committee should accept his testimony in that regard, that he indeed did attempt to make the burden or the issue lighter for Mr Clive Derby-Lewis. ADV POTGIETER: Was he not aware of the danger? MRS VAN DER WALT: Yes, he was aware of the danger, but only after he had been consulted. ADV POTGIETER: ...[inaudible] INTERPRETER: The speaker's microphone is not on. MRS VAN DER WALT: ...[inaudible] ADV POTGIETER: Didn't he know that he should submit the entire truth to the Commission with his application? MRS VAN DER WALT: Yes, he did know that he must make a full disclosure but as he has stated, in his testimony he attempted - he did make a full disclosure but when he had to speak of the order he didn't specifically mention it. ADV POTGIETER: So, in other words he told a lie in his initial application? MRS VAN DER WALT: Not, a lie as such but he did not express it as strongly I would like to argue. But on the 30th of November 1996, he did indeed say that he received an order and they had planned it together but that he himself had acted alone in committing the deed. Then my heads proceed ...[intervention] JUDGE NGOEPE: I beg your pardon Madam, did he do this in writing? MRS VAN DER WALT: Yes. The amendment? JUDGE NGOEPE: Yes. MRS VAN DER WALT: Yes. JUDGE NGOEPE: Where does that appear? MR PRINSLOO: I will just find it for you. JUDGE WILSON: Page 10 of bundle A I think: "I have been advised I did not provide sufficient particulars with regard to paragraph 9(a)1. In addition to my application the following particulars are provided" Is that what you're referring to? MRS VAN DER WALT: Correct. CHAIRPERSON: Carry on. MRS VAN DER WALT: Then I would like to deal with Section 22(a) which I would present to the Committee. This is the section which reads that the offence for which the applicant is applying should be a deed which is related a political objective. I would like to present to the Honourable Committee that the applicant was a member of the Conservative Party. It is argued that after the deed the Conservative Party apparently said in the media that he was not a member of the Conservative Party. I would like to argue to you that that indeed was his testimony. Mr Hartzenberg testified and he made no mention that he was not a member of the Conservative Party. The applicant presented his background, his birth in Poland to the Committee and his experience of the Communist Party. I would like to present to the Committee that his background in Poland and his experience of the Communist Party was not presented to the Committee in order to say that he had developed a hatred towards Communists on that basis and that is why the deed was committed, but if one studies his testimony it is not indicated in any other way. He did this in order to say to the Committee that he knew what would happen if the country would be ruled by a communist dispensation. The applicant immigrated to South Africa and because he came to South Africa he became involved in politics, although at that stage he was not a citizen of our country and could not participate in elections. From the initial stages he realised that changes were taking place in the country and he became closely involved with the Conservative Party's breaking away. At that point he was quite aware of South African politics and he realised, as it is set out, that the policy which prevailed at that point was about change and that there might be a possible communist dispensation in government. He met Mr and Mrs Derby-Lewis during 1995 and became further involved in politics and assisted the Conservative Party with elections and by-elections. And after he was granted citizenship in 1988, before that time in 1985 he also became a member of the Afrikaner Weerstandsbeweging and when he was granted citizenship in 1989 he participated in his first election in South Africa. He also testified that he realised in 1990, when the ANC/SACP was legalised, that there was a definite problem which was developing in South Africa and he believed that there would be an ANC/SACP rule in the government. He was also present when Dr Andries Treurnicht delivered a speech at the Voortrekker Monument in May 1990 where the third struggle for freedom was mentioned. And he testified that during that meeting Dr Andries Treurnicht swept or called the masses of people who attended the meeting, called them to battle. And after that he attended negotiations where the Conservative Party decided that they should ready themselves for a possible war. In 1992 he was also further involved, and he testified regarding that, he was involved in the referendum which was to take place and it was decided afterwards that the democratic road was most definitely for the Afrikaner, as definitely closed for the Afrikaner nation of which he regarded himself to be a member. The applicant who was involved in politics as I have just argued, was more involved with the second applicant, Mr Clive Derby-Lewis, and his politics. What appears very strongly within his testimony is that he as an immigrant from Poland. He came to be under the influence of Mr Clive Derby-Lewis, that he regarded him as a political leader and not just a politician and he also regarded him as one of the policy makers of the Conservative Party. After the referendum in 1992 it was very clear to the applicant that the CP and the other right-wing groups - and I wish to argue that it should be considered that he was also involved in AWB meetings. AWB was one of the right-wing groups and the AWB was not and is not a political party. The members of the CP belonged to the CP as a political party and to the AWB as a right- wing organisation. It is not to say that the members of the AWB could not have been Conservative Party members. Dr Ferdie Hartzenberg testified - and I'm still dealing with this under the fact that this offence occurred within a political struggle as Section 22(a) determines, Dr Ferdie Hartzenburg testified that it was not the policy of the CP, the written policy which they as a political party expressed or carried out. Violence was not their policy. However Dr Ferdie Hartzenberg's testimony must be seen very thoroughly as an entirety. He testified that during August/September 1992, after the signing of the Record of Understanding that was between the National Party and the ANC, the CP realised that it was now involved in a political struggle. Up until that point the CP had achieved quite a level of support in politics. They won a number of by-elections and it became very clear that the Conservative Party which at that point had already become the opposition, if there were to be a general election the voters - that would be before it was an open election for all population groups, the CP realised that it might able to defeat the National Party. But with the undersigning of the Record of Understanding the CP realised, and this was made clear from every platform from their supporters, that now there was an overwhelming struggle and that the Afrikaner nation's freedom was in danger because if the ANC/SACP Alliance came into power, the Afrikaner nation would lose it's freedom. And the policy - this is his testimony, the CP's policy was to strive for the freedom of the Afrikaner nation and it did not change since the establishment of the Conservative Party. Now with the signing of the Record of Understanding, this freedom of the Afrikaner was put in danger and that is how the CP regarded it and it was also expressed as such. He also testified that it was very clear to the Conservative Party that the ANC and especially the SACP under the leadership of Mr Chris Hani would not grant the Afrikaner nation it's own territory, they wanted a unity state. And he also testified about an army which Mr Hani had ready, with 10 000 troops if the vote did not swing in favour of the ANC and the negotiations for the unity state would be enforced with violence. The testimony of Dr Hartzenberg continued and said that as a result of this political struggle which existed or ruled the country at that point - it cannot be seen as anything else, the CP decided to mobilise in all areas, not only religiously or in the educational sphere, on all levels. The CP mobilised to resist the ANC/SACP Alliance in terms of the threat towards the Afrikaner nation. JUDGE WILSON: When ...[inaudible] in the sense that ...[intervention] INTERPRETER: The speaker's mike is not on. JUDGE WILSON: ...[inaudible] in the sense that we would have to activate our people, not in any military sense of mobilisation. If you look at page 755 of the record he says there: "In the course of 1992 we realised that because those opinions were diminishing we would have to mobilise our people to demonstrate in a visible manner that we were quite serious for the preservation of our liberty" and he goes on over the next page to say that: "We would have 18 interest groups including education, agriculture, local government etc., and also security and safety" MRS VAN DER WALT: That is correct, I agree with you. But it goes further than this: "to mobilise and prepare for the security of the Afrikaner people. This meant one thing, and that was to fight with weapons" His evidence goes further in saying that the leaders - and he's not referring only to himself and Treurnicht, he's referring to other leaders and he refers to the other speakers from the platform, they proclaimed that is was war now. It was said that the people had to obtain weapons, not only for self-defence ...[intervention] Just a moment please. ...[no sound] Page 758, I don't know whether the quotation is correct, I don't have it in front of me. He discusses it where he says: "Mr Chris Hani is regarded as enemy number one. If Hani would be the leader of the country the Afrikaner nation would be destroyed" CHAIRPERSON: Yes, carry on. MRS VAN DER WALT: Pages 772 to 774 he makes statements and on 782 where Hartzenberg concedes like the other leaders, strongly worded things were said to convince people to commit acts of violence. The CP regarded the situation in the country as a full blown war situation. ADV POTGIETER: In one word, what was the policy of the CP regarding violence? MRS VAN DER WALT: It's the same problem that Advocate Prinsloo had. The CP's written policy was not about violence but what they talk about, what they proclaimed from platforms at Paardekraal, at the Voortrekker monument, there they said: "We should fight" and what else should the members of the CP and the right-wing have thought if their leaders tell them: "You have to begin the struggle and you have to fight for your freedom". ADV POTGIETER: I understand that, that is a different argument. According to your submission, what should we find regarding the policy of the CP regarding violence? MRS VAN DER WALT: Mr Chairman, the policy was not violence but in respect of the application, and if you look at section 22(a) this is not about what the police was but it was also not the National Party's policy but it was about a political struggle and that was what the leaders of the Conservative Party said. ADV POTGIETER: But you said the policy was not violence? MRS VAN DER WALT: ...[No English translation] ADV POTGIETER: That helps. MRS VAN DER WALT: Dr Hartzenberg gave evidence regarding the question: "What was the CP's view regarding Mr Hani"? I've already indicated to you that he said that Mr Hani was regarded as enemy number one of the Afrikaner people and if Hani should be in control of the country the Afrikaner people would be destroyed. And then I want to come back to what Mr Potgieter has said. The policy of the Conservative Party was to ensure the freedom of the Afrikaner people and if Mr Hani, if he was in control of the country, then the Conservative Party believed that the Afrikaner people's liberty would be destroyed. Then, as a result of that point of view of the CP and the right-right, the right-wing together with the CP because they were part of the CP, then they became involved in a political struggle and then they propagated violence. The Conservative Party and Mr Hartzenberg cannot get away from that fact. Their followers heard about violence and that they had to use to protect their liberty. It was also clear from his evidence that the political struggle was, and he said: "The National Party betrayed the Afrikaner people and the struggle after the legalisation of the ANC/SACP and the struggle was then against those organisations". Mr Chairman, in my heads I also referred to 22(d) and I want to submit that in order to qualify for amnesty, the applicant he had to make full disclosure of the offence and according to which - this article, he is applying for amnesty. A lot has been said about the fact that there was wider conspiracy than only that between these two applicants and then because of the application there was not full disclosure. I want to put it to you that the applicant's evidence indicates that at the end of 1992 he was in Europe and after his return in December 1992 he made contact with Mr Clive Derby-Lewis. Before he had left for Europe this struggle in the country was already going on and when he returned in December this political situation in the country was discussed further. His evidence is, and there's no other evidence contradicting that, that at that stage the political situation in the country was discussed and not at any stage that they then decided that anybody had to be eliminated. In February 1993, the applicants visited Mr Clive Derby- Lewis again and then received the instruction and the planning was made to murder Mr Hani. It is evident from the first applicant's evidence that Mr Derby-Lewis provided a list to him. I want to argue that should the Committee find that Mrs Derby- Lewis, based on her statements based on Section 29, as Ngoepe pointed out to Mr Prinsloo, if the Committee finds that Mrs Derby-Lewis knew beforehand that there was planning being done to murder Mr Hani, I want to submit that the applicant, Mr Walus, had no knowledge of this whatsoever. He did not know that which Mrs Derby-Lewis knew, there is no indication. Even in the Section 29 statements or any other evidence, there is any indication that Mr Walus knew that Mrs Derby-Lewis knew what her husband - Mr Walus did not have any knowledge that he discussed it with her. JUDGE NGOEPE: She did not implicate him? [Transcriber's translation] MRS VAN DER WALT: She did not implicate him. And then I want to go further. This list, according to Mr Walus, he received this list in February, that was the first time he saw that. He has no knowledge whatsoever or he had no knowledge at that stage of how that list was obtained, he had no knowledge of this list with the 19 names which was dispatched by Mr Kemp. He did not know how Mrs Derby-Lewis obtained the list with the 19 names. He received the list from Mr Derby-Lewis and on Mr Derby-Lewis' instruction the list was prioritised, based on the basis of hostility against the CP. Mr Walus said that some of the names were known to him, for example, Mandela and Slovo but the other people were unknown to him. He heard about them but he did not know anything about them. Mr Walus gave evidence that during February, after this list had been numbered and Mr Hani was identified as a target because of the fact that he was the Secretary General of the ANC and he was involved in MK and he was being seen as Mandela's successor, it was decided that he was the target for their offence. ADV POTGIETER: Who decided that? Who made this decision? MRS VAN DER WALT: This decision, together they decided about the target. ADV POTGIETER: Derby-Lewis and Walus? MRS VAN DER WALT: Yes, they decided about that jointly. But it is very clear and it was confirmed by Mr Derby-Lewis that Mr Derby-Lewis instructed Mr Walus to execute that decision they had made. ADV POTGIETER: On which authority was that made? MRS VAN DER WALT: According to the evidence of Mr Walus, he believed that because he regarded Mr Derby-Lewis as a CP policy maker, as a leader of the Conservative Party, he did not only regard him as a politician, he believed that this was decided by the Conservative Party and that this instruction was given in the name of the Conservative Party. ADV POTGIETER: But on which authority - apart from what Mr Walus believed, on which authority did Mr Derby-Lewis, after they jointly decided, on whose authority did Mr Derby-Lewis give an instruction to Mr Walus to execute this joint decision? Can you assist us in this respect? MRS VAN DER WALT: I want to submit that according to Mr Walus' evidence and the way in which he regarded, he regarded Mr Clive Derby-Lewis' instruction based on his position as an executive member of the Conservative Party. ADV POTGIETER: Where is there any documentation regarding this authority? MRS VAN DER WALT: There's no documentation regarding this matter. I want to submit to you that this can be gathered from Mr Walus' evidence. He believed that as a result of the position Mr Derby-Lewis held in the Conservative Party, that instruction was based on the authority of that position. JUDGE NGOEPE: And according to you Mr Walus didn't have to look any higher up in the hierarchy than Mr Derby-Lewis? MRS VAN DER WALT: That was also the way he saw that. He regarded Mr Derby-Lewis as a leader. And together with that, this instruction - looking at his evidence in its whole, it did not come out of the blue as something they've just decided on the spur of the moment, it was part of this political struggle which was going on since early '90's. That was since the time the ANC/SACP Alliance was there. This must not be seen in isolation, that the instruction was just given on the spur of the moment. JUDGE NGOEPE: In that case we here have to do with a conventional instruction, we have to do with the joint decision of Walus and Derby-Lewis? MRS VAN DER WALT: A decision was made in respect - because you must take the evidence into consideration that something had to be done about the right wing but the instruction, they jointly decided that Hani was the target but the instruction according to Mr Walus, this instruction came from the Conservative Party by name, Mr Derby-Lewis. ADV POTGIETER: Yes, but I see no instruction, especially if you look at the amendment you've made on page 10. It does not look like an instruction, it looks as if a decision had been made by two people. MRS VAN DER WALT: Definitely that decision was made but Mr Walus gave evidence with reference to Mrs Khampepe also had said, he regarded it as an instruction and Mr Derby-Lewis confirmed that. Why would Mr Walus -I want to call it a kind of a foot soldier, he would not take such a decision all by himself. He would not make such a decision together with another foot soldier because he did according to his beliefs. JUDGE NGOEPE: No, but Mr Prinsloo said - if you can accept what is written on page 33, he said - page 27, paragraph 9, the applicant and Walus decided that Hani had to be shot and Walus undertook to do this. MRS VAN DER WALT: Yes. JUDGE NGOEPE: And there is a reference to certain pages in the record. MRS VAN DER WALT: I want to submit it to you that there are people sitting together and making a decision to execute the task. For example, when a military operation has to be done, the people sit together and make a decision. There is always a leader, a leader who takes the initiative. These two people sit together, they make a joint decision to do something. There are political discussions which have been held - I don't want to refer to all that again, in which it was said that something had to be done. Now Mr Derby-Lewis comes and they have certain talks, he comes and he says: "Here are people, we have to do something". On his instruction this murder list is prioritised and then the decision is made, like when you consider a decision, what will be the best target to serve our purposes. And jointly they decided that it would be Mr Hani, then they had to go further. Now the decision had to be made - as I understand Mr Prinsloo's heads, how this person had to be eliminated was to shoot him. It's not that Mr Derby-Lewis decided all by himself that he should be shot and he gave the instruction. I want to submit that during their discussions Mr Derby- Lewis was the leader and that Mr Walus acted on his instructions and said: "I will shoot him". JUDGE NGOEPE: ...[No English translation] In principal it was decided to kill Mr Hani. Whether he had to be shot or not, it's a question of detail. The two of them together made a decision that he had to be eliminated. MRS VAN DER WALT: I'm answering your question, that they had decided, it's in comparison to what I've said, Mr Walus acted on instruction. They jointly decided that he had to be shot. They decided he was the target but the joint decision that he had to be shot doesn't make a difference. CHAIRPERSON: ...[inaudible] at some stage during their conversations, when they had this list before them, if they came to the conclusion that Mr Hani is to be eliminated, is the position not that Mr Walus volunteered to carry out the deed rather than being ordered to do so? MRS VAN DER WALT: He said that he would do it but what I want to put before the Commission, the whole decision making regarding this matter what was going to happen, that something had to be done, everything was inclusive of this instruction. If Mr Walus said he would do it, somebody had to do it. It does not change the fact that the decision making came from the leader, the person from the Conservative Party. CHAIRPERSON: Carry on. MS KHAMPEPE: Sorry, Mrs van der Walt, can I get further clarification. I think it is not in dispute that Mr Walus and Mr Derby-Lewis jointly decided on the target for the assassination which was Mr Hani. MRS VAN DER WALT: That's correct. MS KHAMPEPE: Now, the instructions which subsequently followed with regard to the execution, was after the selection of the target had been made. MRS VAN DER WALT: That's correct. MS KHAMPEPE: In what capacity did Mr Walus participate in the selection of the target with Mr Derby-Lewis? MRS VAN DER WALT: As I understand the evidence, after this list had been obtained, they decided that they had to find a target which would receive the necessary effect. They jointly discussed this matter but this whole principle and the reason why it happened, all this came from Mr Derby-Lewis because was the person who on that specific day came with the list and said: "Now we have to do something". MS KHAMPEPE: But when the decision was taken to target Mr Hani for assassination, would you say that Mr Walus was not participating as a co-partner of Mr Derby-Lewis? MRS VAN DER WALT: Not at all, that was the evidence. They jointly decided about the target. I've never argued otherwise, that was according to his evidence but it does not change. And with respect, I want to argue, it does not change my argument that Mr Walus seen in the light of the executive person or executive politician by name, Mr Clive Derby-Lewis, that he was still acting under his instruction. JUDGE WILSON: While you were leading Walus, at page 895 of the record, he said, and I read: "After I numbered this list". and he said he numbered it in accordance with Clive Derby-Lewis' instructions. "Clive Derby-Lewis told me that we would concentrate on elimination of number 3, surname: Chris Hani and if for the CP and the right-wing will I agree to take this task on me. I expressed my readiness and acceptance" There's no suggestion there of a discussion. He said that Derby- Lewis told him that: "We would concentrate on the elimination of Hani" MRS VAN DER WALT: That is correct but if we look at Mr Clive Derby-Lewis' evidence there was a discussion and you'd accept - I don't want to speak to the detriment of my client, but we can accept that there was a discussion but Walus, according to his evidence, he did this on the instruction of Mr Clive Derby- Lewis. ADV POTGIETER: In other words Mr Clive Derby-Lewis took the initiative, he was the person who had that idea right from the beginning but at the end of the day what we have to do with are co-conspirators. MRS VAN DER WALT: Definitely, that is so but my client has to fulfil the requirements of the Act and his application is different from Mr Clive Derby-Lewis' because Mr Walus, and according to his evidence, acted after the decision had been made. He acted on instruction of a member of the Conservative Party and that was according to his evidence. ADV POTGIETER: That is what I can't understand but I don't want to interrupt you further. MRS VAN DER WALT: When do you want to adjourn? CHAIRPERSON: Have you finished dealing with this particular aspect? MRS VAN DER WALT: Yes. CHAIRPERSON: Very well, we'll adjourn at this stage and resume at 2 o'clock. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON: Please proceed. MRS VAN DER WALT: Thank you. I finished on page 14. The applicant undertook to execute the elimination of Mr Hani on his own and on that very same day when the order was given to him he requested of Mr Clive Derby- Lewis to issue him an unlicensed firearm. They also discussed it and it was decided that Mr Hani's home would be reconnoitred and early in March 1993 they reconnoitred the home of Mr Hani a number of times in order to establish the routine and movements of the home. On the 6th of April 1993, he visited Mr Derby-Lewis at his home after an invitation from Mr Derby-Lewis to have breakfast there that morning. On that day the unlicensed firearm was handed over to Mr Walus. There was a discussion which involved that Mr Derby-Lewis would provide him with further ammunition and the silencer which was fitted to the firearm could not be used with regular ammunition. On the 7th of April, Mr Walus once again contacted Mr Derby-Lewis or visited him in order to determine whether any changes had been made to the plans and whether he had managed to gain ammunition for him. At that point he had not received any ammunition. According to Mr Walus' testimony the only further suggestion which was made to him was that the elimination be undertaken before the Easter weekend. On the 10th of April a Saturday, Mr Walus went, not with the purpose to shoot Mr Hani on that specific day, according to his testimony, he went for his regular exercise at a certain sports centre. Thereafter he decided or the place or facility was closed because it was a public holiday and he decided that he would do further reconnaissance. He had tested the weapon on his brother's small holding and found that the silencer could not fire automatically. He then decided that he would buy ammunition with his own firearm licence which would be the same ammunition as for the unlicensed weapon. He took a drive to go and do further reconnaissance at Mr Hani's home. From the testimony of Mr Walus you can see that it concurs with the testimony given in the Supreme Court. And on that day he saw Mr Hani in front of his house where he was climbing into his vehicle and there were no bodyguards present. Initially he thought that it was Mr Hani but he wanted to make certain and he drove along behind the vehicle until it came to a shopping centre where Mr Hani climbed out of the vehicle and was positively identified as Mr Hani. Thereafter when Mr Hani departed, he took another road and stopped behind Mr Hani's vehicle whereupon he climbed out, called out his name, Mr Hani reacted to that, he turned around and Mr Walus shot Mr Hani. He shot him four times. Thereafter he departed and from the Court case his vehicle was identified by Mrs Harmse and Mr Walus was arrested shortly after the events. In terms of Section 21(c), that is on page 21, it is clear that it is required by law that the applicant provide a full disclosure of all the relevant facts regarding the events. If there are certain small issues which might not have any bearing matters which were emphasised during the hearing, especially with regard to Mr Walus and his actions, his brother dead after the glass works were declared insolvent, these details are of minor import and not relevant. I would like to submit to the Honourable Committee that the applicant has made a full disclosure of all the relevant facts and the legal counsel of the family and the SACP have submitted the statements before the Committee. And the so-called statements which Mr Walus would have made to Captain Deetliefs and with the intention of the submission of these statements to the Committee, the intention is to make it clear that there are facts which the applicant did not disclose and there is a greater conspiracy. The applicant was arrested and detained in the Benoni police cells and it would appear quite clearly from the documentation that he did not want to make any statement unless he had legal representation. He was taken from the cells by various police officers and interviewed or questioned by various police officers until, on the 14th of April 1993, he fell into the hands of Captain Deetliefs. He was once again taken out to his residence by Captain Deetliefs, taken back to his cell and on that day, the 14th of April the applicant said to Captain Deetliefs that he would like use his right to silence and did not wish to make any statements unless his legal representative was present. On the 15th of April 1993 until early morning hours of the 16th of April, the applicant the applicant was questioned for 11 hours and according to Captain Deetliefs notes were taken which are not available. No statement was taken from the applicant on that particular evening. In the early morning hours the applicant was placed back in his cells, that is on the 16th at twenty past five. That very same afternoon, at 16H05 he was once again taken out of the cell and once again questioned for approximately 14 hours and yet again notes were not taken and no statement was taken either. The early morning hours of 16 April 1993, approximately 04H15 that morning the applicant began, according to Mr Deetliefs, to cooperate. That is so, the applicant has confirmed this. The applicant confirmed that he cooperated as a result of the fact that Captain Deetliefs caught him or tricked him and by means of lies he led him to believe, this is Deetliefs, that he had infiltrated the security police, that they were actually cooperating with Tienie Groenewaldt and that if he would cooperate it could result that Mr Holmes, who was the investigating officer in this case at that time, would not make any further arrests and that Deetliefs was actually working for the right-wingers. The applicant in his testimony stated that he was extremely naive and he realised this later, it was naive of him to believe Captain Deetliefs. The only notes which are available from this questioning, from which point on the applicant would have been cooperating, would the hand-written notes - just a moment please, page 84, 85 and 86, that would be in R4. There are the only notes from all these hours of questioning which were provided by Captain Deetliefs and can be provided. If the video cassettes are watched it is logical that there wouldn't be any notes, however in Captain Deetliefs' statement which is to be found in R4 continued he at several points mentions that notes were taken down by Mr Beetge. That cannot be so because he could not make a statement to the Attorney General of the Witwatersrand, Mr Klaus von Leerus at that time, in which he would state, in terms of everything that had happened, that he was infiltrating the police and working along with Tinnie Groenewaldt and that is why there weren't any notes. But what is shocking is that he says on numerous times in his statement that notes were taken. These are the only notes ...[intervention] INTERPRETER: The speaker's mike is not on. JUDGE WILSON: R4 continued, is that from the beginning of R4 continued? MRS VAN DER WALT: His first statement is in the first pages, page 299 and then it is placed again at a later point in the same bundle but I will refer you to these statements. The applicants has also mentioned that during those long hours of questioning, alcohol was given to him. That was confirmed. One can also see on one of the video cassettes that he is drinking beer. The applicant said that he could have been given sedatives because the alcohol effected him quite severely. But the most important aspect is that Captain Deetliefs tricked the applicant with his lies. The applicant then provided these details as appears in the hand-written documents but the applicant testifies that Deetliefs always, with everything that he said, sketched it or sketched the applicant's words to be more sensational in order to qualify what Deetliefs was actually looking for. The applicants was continuously questioned by Mr Bizos and especially as I understand, it was to prove this larger conspiracy and that the applicant was not making a full disclosure and so it was put to the applicant that he had reconnoitred Mandela's home and that is why Mrs Beyers was called, in order to prove that the applicant was telling lies when he said that he had reconnoitred Mr Mandela's home. According to the statement of Mr Deetliefs he said, and that is R4, 306 continued and 361, where he says especially on page 361 in the middle, that would be the statement which Deetliefs had written but it was written as if it was the words of the applicant: "Rekkies was also done on Mandela's house. I thought the old goat was not worth it" But nowhere, on one of those cassettes, there are 10 cassettes which have bearing on Mr Walus, this does not appear on one of those cassettes. As it appears in this statement from page 306, the Honourable Committee will note that 301 or 304 and 305 are the typed versions of the hand-written notes. From page 306, Captain Deetliefs went to a lot of effort, he wrote his statement and then there's a question: "Captain" and the question follows, then it says: "Walus" and then there's an answer that follows. Where are those notes from which he would have retrieved this information? He could not submit this to the Honourable Committee because what was said there never was said in fact. And it is also said in various places in the statement that the applicant was warned according to Judges' rules. It does not appear on the cassettes and it won't, it cannot because the Honourable Committee must understand and it was conceded by Advocate Brand, that the applicant had been misled. Captain Deetliefs could not have warned him because they were busy with clandestine discussions where Deetliefs would be assisting the right-wingers, why would he warn them then? In my heads I submitted to the Honourable Committee that Captain Deetliefs was a liar and that he's nothing else but that and that the video cassettes and the statement are proof of that. The applicant told the Committee that at a stage he had driven past Mr Mandela's home at that point and the translation it would appear, the English of the applicant in the statement is quite clumsy, one does not know how the translation came through from the Polish to the English but he said that it was put to him - I don't have it here at the moment, it was asked of him how he managed to obtain the address of Mr Mandela and he said - and he continues, I must concede, but as, and there is such proof, the home of Mr Mandela appeared in the Citizen Newspaper and according to the applicant he drove past simply out of curiosity. I submit to the Honourable Committee that the target which they had discussed and which was pointed out by Mr Clive Derby- Lewis was only Mr Hani and not Mr Mandela. It was also put to the applicant during cross-examination and it is also supported, that there was a conspiracy to murder the others whose names appeared on the list - and I refer to R4 on page 308, where Captain Deetliefs once again - this is point 2 on page 308, once again it is: "Captain" I have never seen a policeman make this kind of statement, nonetheless: "Captain: Cuba, do you think there is a possibility that others on the list could still be eliminated after your arrest"? then it is: "Yes, they are all bastards. The one is only more dangerous than the other one. Clive is a guy with balls, he will know what to do. You must know, we saw it as a war situation, a political issue" EXTREMELY BAD RECORDING FROM THIS POINT ON It is absolutely frightening Mr Chairperson, if one would watch the tape, that is tape number 8 - and I mentioned that in my heads of the 22nd of April 1993 and the time is 12H25, what appears on the tape and if one would watch the entire tape it would still be this Deetliefs and Beetge, no notes are being taken. One can see Beetge's hand, they are planning to help the right-wingers. And Deetliefs will say: "They don't want to discuss it too openly because it's supposed to be a secret". Then Deetliefs says, while they are discussing who will be the successor of Hani, Deetliefs says, and this is not the applicant, Deetliefs proposes that Sexwale would be the possible successor. Then Deetliefs says that: "Sexwale is a bastard", upon which the applicant answers -he's sitting there and this was recorded within the prison, he's sitting at the table with his head turned and he says: "They're all bastards". On the same tape further on, the typed 1301, Deetliefs is still in discussion with the applicant and he expresses great praise of Clive Derby-Lewis, that he is such a wonderful man, that people trust him - this is Deetliefs speaking, and then they discuss the fact that Clive Derby-Lewis was involved with the Witwatersrand ...[indistinct] and then the applicant makes the following remark: "Clive Derby-Lewis is a good man, he is a man of balls - he's a guy of balls". excuse me. What is contained there on page 308 does not exist. It is not that it was interpreted incorrectly, it simply doesn't exist at all. That which Deetliefs had written here was his own story. He had taken discussions with the applicants, written it down to suit his own purposes. He also wanted to try to prove that there was a greater conspiracy at hand because already from that point when the case was being investigated, foreign investigators were called in to assist with the investigation but it doesn't end there. I have simply highlighted those sections with regard to which the applicant was cross-examined, but it is absolutely frightening to watch those tapes. On page 301 - I'd like to refer the Committee to this, Deetliefs here makes a very long statement and it is here where his style changes - I don't know if he became tired, but now assumes a sort of discussion form of what the applicant had said to him. What appears on page 301 certainly does not appear on the video tapes. He refers, himself, to the video tape. He also states that is was the 18th of April at 11H02 in Pretoria Maximum and all these details are given, for example that - this in the middle of that page, that Clive's wife Gay, was not present on that particular evening but at the handing over of the weapon and the murder list, that is not on the video tape and it does not compare with the testimony delivered in the Supreme Court. JUDGE WILSON: ...[inaudible] MRS VAN DER WALT: 310, I'm sorry, I'm so sorry. MS KHAMPEPE: ...[indistinct] Miss van der Walt, your head refers to ...[indistinct] to be amended should be amended. MRS VAN DER WALT: It's 310, I'm sorry, it's my fault. According to the evidence given in the Supreme Court and also the evidence given by the applicants, Mrs Derby-Lewis was not present when this person was handed over. She was also not present when the list was handed over, once again it's Deetliefs fabrication. At the bottom of the page reference is made by Deetliefs and he mentions at a various stage that the applicant watched Mandela's house and also Joe Slovo's house. If one looks at the bottom ...[inaudible] RECORDING EXTREMELY POOR ...[inaudible] middle of the page, three quarters down the page: "....and also watched Mandela's and Chris Hani's house during the night". On the 22nd of April 1993, Deetliefs and Beetge visited the applicants in prison. According to page 311, Deetliefs quotes from Langenhoven and once again it's the Captain's question and Walus answering. There Mr Deetliefs also mentions in his words, that this quotation from Langenhoven portrays the ...[indistinct] of the applicant at that time. Mr Chairman, according to Deetliefs statement on 211, that quotation does not appear on the tape made during that specific. This person listened for hours to these tapes and made up his own ...[indistinct] and wrote his statement. This quote does occur on tape number 9 on the 18th of April at 14H45 as you can see on page 133 where it's based on question and answer by Walus and Deetliefs but on the tape Deetliefs and Beetge are still busy with this clandestine operation they are going to execute to support the right wing. ...[indistinct] had come and he said: "...[indistinct] a quotation and he mentioned it to the applicant" The applicant sat still, according to the tape, and it's very clear that he did not really realise what the meaning of the quotation was. He did not understand the meaning because he did not react, Beetge made the quotation and he did not react and then Deetliefs came and he explained to the applicant what the meaning of that quotation was. Deetliefs explained it and he applied this ...[indistinct] to the "Wit Wolve". What is there, what is stated there what the applicant should have said is absolutely wrong. This is all regarding the quotation but there is a long statement made by Deetliefs(?) from page 312 to 321, regarding certain identifications which had been made which did not take place. ...[indistinct] done by another officer and usually a photographer accompanies them. Deetliefs said there was a photographer but the applicant said he went to the ...[indistinct] and the applicant said they had some beer there and a photographer was never present there and he never ...[indistinct] Mr Mandela's house. I wish to argue that the applicant did not make any statements apart from the statement where he said he did not want to make any statement and these written notes which is the applicants version and that the other so-called statements ...[indistinct] are mentioned in Deetliefs statement have no value should be attached to those because they are absolutely wrong and Deetliefs is an absolutely unreliable person. This is supported by the video tapes and by the statement. Mr Prinsloo has already ...[indistinct] regarding Mrs Beyers. I refer to that in my heads, I'm not going to do it now. The applicant denies that during that time he went to Mr Mandela's house. ...[indistinct] as mentioned by the family ...[indistinct]. The fact that the applicant, it was said that the applicant - his evidence for amnesty was changed after Mr ...[indistinct] programme. I want to submit to you that the changes had already been made on September in 1996, where he said he acted on instruction of Mr Clive Derby-Lewis. I want to submit that there is no evidence at all that there was a ...[indistinct] conspiracy. I also want to submit to you that the applicant, that there's no evidence that it was found that there could have been a possible conspiracy in compiling the list or any other conspiracy, the applicant was not aware of that. Then I want to submit that the applicant complied with the requirement - and I've also presented my heads on the various requirements. And ...[indistinct] and according to Section ...[indistinct] 2(a) and ...[indistinct] that they are applicable to the ...[indistinct] and that he should get amnesty. END OF TAPE DUE TO POOR RECORDING MS VAN DER WALT: ...and I also want to submit that the criteria as put in a subsection 3 Act that I dealt with and that the applicant also complies with that, that is all. JUDGE NGOEPE: Are there no objective facts which point out to a wider conspiracy? What worries me, I think I raised this with Mr Walus, was that broad daylight he goes to Mr Hani's place, he shoots him, he walks away, gets into the car, drives away, the weapon is left in the car and he just normally joins the traffic as if nothing has happened. What assurance did he have, did he have some kind of assurance that don't you worry, you can do it, even if I do it you can be covered somehow, don't you worry? MS VAN DER WALT: I want to submit to you, it seems strange perhaps but the circumstances, and that is the only evidence which is before you, the circumstances lent to this offence being committed at that stage, the police took all these various aspects into consideration, investigated everything, he was on his way to go and practise, he drove by, the opportunity just arose when Mr Hani, according to the other report, he did not spend the Friday night at home, and his bodyguards got off for the night or the weekend, he was all by himself, the circumstances just lent it to this. The firearm was in his togbag and he can't mention a coincidence if you're a Christian you don't believe in that, but Mrs Harmse saw the vehicle. I just want to bring these facts from the trial. She saw this vehicle but the number being presented to the police from the red vehicle, that one number was wrong and the police officers, a du Toit and an Olivier, they gave evidence, they drove around the road and they heard this over the police radio, they saw the red car but this number was wrong and they pulled him off the road. JUDGE NGOEPE: I would imagine if my recollection is correct with regard to his evidence, he was simply not worried at the time, even though he saw the police, the traffic police, I can't remember if it was traffic police. The impression I got he was not unduly perturbed or he was not nervous, he didn't panic, he didn't try to change and drive to another direction to see whether they would follow him, he just drove like anybody as if he hadn't done anything wrong, which is rather strange, one wouldn't expect that kind of behaviour from somebody who has just committed murder. MS VAN DER WALT: With respect, according to his evidence he did say that he noticed that it was the police and he furthermore said that when he got out from his vehicle he couldn't drive away quickly, then he would have drawn more attention. He was in the traffic and then he also stated further, he was standing there and he thought he had to see how this whole thing would develop. I did not think he thought he would be arrested at that stage. JUDGE NGOEPE: Well it's not only Mr Walus' problem if it is a problem at all. Their evidence that they had hoped that in the midst of all the crimes, certain things would happen, certain people would do certain things, in particular the right wing would step in. I don't know on what basis they would have thought what happened if they had not made some kind of arrangements, some understanding with some other people. MS VAN DER WALT: As I've understood Mr Derby-Lewis' evidence and if Mr Walus was not arrested so quickly who would have gone to clear this out with the Caucus and if chaos had developed, they believed, and if I understand his evidence correctly, after this incident the Volksfront was established and here all the right wing groups joined forces. The Volksfront was established and later on the Freedom Front, it was a political party was established but according to the evidence, if I understand that correctly, this incident led to the establishment of the Volksfront. JUDGE NGOEPE: It would have been an assumption bordering on naivety to just assume that well he killed somebody and well the two of us, just the two of us agreed to kill him without telling anybody, the two of us would kill him and even though we have not canvassed this thing, we have not made any contingent arrangements with anybody, the Right Wing will step in and take over. MS VAN DER WALT: Well I believe that during that time in the country there was chaos. If you look at the evidence of Mr Hartzenberg and the exhibit, one or other research where the political violence of those times, if you look at that I believe that Mr Derby-Lewis who was well acquainted with the politics could have believed that through that chaos the right wing groups would have become one united group, and they could have taken over the government of the day without any further arrangement with other people. This just followed naturally, yes if things did not go wrong, they could have approached the right wing in this regard. But regarding your initial question that Mr Walus just drove away and he did not panic, there is no evidence, and it's also no other person assisted him. Mr Mpshe asked him whether there were any road blocks, he said no he didn't see any road blocks. I don't know what the intention of that question was, whether the police or somebody else would have helped him, there were no road blocks. ...(tape ends - no further argument by Ms van der Walt CHAIRPERSON: Mr Bizos. MR BIZOS: May I first give members of the Committee an overview Mr Chair before I start to argue the matter in detail? Firstly I would like to indicate to the Committee that my learned friend Mr Malindi and I have agreed to share the argument that is to be advanced with the Committee. Generally I will deal with pages 1 to 20, my learned friend will deal with pages 20 to 45, and I will deal with the rest of the argument. But having with respect listened to the argument of Counsel for the applicants and the questions that were posed by the Committee and some of the answers have been given, we would like to make certain preliminary submissions. Firstly that before we can try to apply the facts to the provisions of Section 20, the committees onerous duty is to try and determine the facts and the facts obviously cannot be determined without meaningful submissions having been made to the committee about the credibility of the witnesses that have given evidence before you. And before we get to the application of the facts to the provisions of the Act we would like to make certain general submissions. Firstly for the purposes of these preliminary submissions, we submit that the evidence of Mr Derby-Lewis, Mr Walus and Mrs Derby-Lewis can be grouped together and what I am about to say about each one of them as witnesses applies although not squarely in general terms to each one of them. Firstly that they are witnesses who on their own version have admitted that they are not strangers to lies. We start with Mr Derby-Lewis. Although he did not give evidence at his trial, he thereafter made an affidavit in which, not only did he say that he was innocent of his crimes, but he also tried to hold himself out as a most unfortunate victim of the administration of justice; he not only lied about his participation in this murder, he lied about having been not properly defended and complaining about his attorney and counsel, and when this untruthfulness is drawn to his attention, he says well I committed perjury because I considered that it was still part of the struggle. We'll examine that a little later but for the purposes as to whether he is to be believed as a witness on his own, we would submit that that is sufficient to approach his evidence with considerable caution. JUDGE NGOEPE: Sorry Mr Bizos, I'm going to say something here at this stage, an observation. We in all, almost all and perhaps all applications for amnesty, we deal with people who were convicted and who would have said, oh I didn't commit this offence, under oath and then he's obviously disbelieved and convicted. When they make applications for amnesty we expect that they would say now I'm telling the truth, last time I lied under oath. MR BIZOS: I am not unmindful of the point made judge. What I am saying is that like in the case of accomplices, we don't reject the evidence of an accomplice because he originally made the statement to the police that he didn't know anything about it, but when the matter came nearer home to him, he made to confess to the crime, but what we do require in relation to the evidence of accomplices is that because by nature they are unsatisfactory persons who were prepared to lie, we do not accept their evidence unless there are cogent reasons to do so, bearing in mind that the oath at times doesn't mean much or anything to them when their own purposes are to be served. I do not want to take it further than that, and I would certainly not make myself guilty of submitting that because he lied nothing that he said here should be believed. What I am submitting is having regard to the fact that he is a person who was prepared to lie under oath, who said that his legal representatives were responsible for his being found guilty because they did not give him proper advice and they did not give him any reasons. I don't want to repeat everything that he said in the application, I want to take it now further than that and most certainly do not submit that as you have indicated judged, most if not all of the people have denied it in the past particularly if they have been tried, but tremendous caution has got to be exercised in accepting the evidence of Mr Derby-Lewis so that when a member of the Committee asks a question of Counsel, where is this, merely to be pointed to a statement made by Mr Derby-Lewis without comparing that statement to what he said in his application for amnesty, to what other witness have said and what the probabilities in the case are, it is not enough to merely say Mr Derby-Lewis and Mr Walus said. That's as far as I want to take it and I will deal specifically in relation to some of the self-serving statements made by Mr Derby-Lewis which we will submit can not be relied upon in order to apply it as a fact and in turn apply the law. Let me deal with Mrs Derby-Lewis. She too admitted that she lied to the Judge President of the Transvaal Provincial Division in relation to the circumstances under which the list was handed out, which is a matter on the very core of the matter. Again we cannot accept the evidence of Mrs Derby-Lewis merely because she has said so, we will have to have regard that she is a person who is capable of lying under oath and who obviously has a very strong desire to get her husband's release under amnesty. Now as far as Mr Walus is concerned, he too has contradicted himself in relation to vital matters between the notes that appear in R4 and particularly pages 362 and not the pages that have been quoted by Counsel for the applicants and also, Mr Chairman, the issue here is not what may or may not be on the tape, the vital passages that we rely on were read to Mr Walus and if you have a look at pages 98 and subsequent pages of the second record, you will see that he has for all practical purposes admitted to have said the things that were recorded, but we will come to that in much greater detail. So that again what we would appeal to the Committee to have regard to, that the matter is to be decided on with a more, with respect to Counsel for the applicants, a thorough examination of the facts than they have set out in their written heads of argument and have made submissions here. The other matter Mr Chairman that we want to say about these three witnesses and in this regard I would join Mr Clarke as the fourth, because he falls into the same category that there attitude to the fundamental changes that were taking place after 1990 and more particularly the preparatory changes to have a new constitution from 1993 onwards which was being prepared at CODESA was absolute anathema to them. I do not think that we will be overstating the case Mr Chairman, if they are described as a clique or small cabal of fanatics who irrespective of what the policy of their political party may have been, partly as a result of what may or may not have happened in Poland as far as Mr Walus is concerned, partly because of deeply felt and fanatical religious beliefs, they set themselves up as saviours purporting to be motivated by a religion for the vast majority of the people in the world preaches peace, is an excuse to commit murder by trying to persuade the committee that they were really after the Antichrist rather than the person described in evidence by Mr Jeremy Cronen as the person that had done so much in order to bring reconciliation to the country. With those preliminary remarks I now want to turn Mr Chairman to page 1 of our written heads and there we submit at 4.1 that the assassination of Mr Hani was not committed on behalf of, or in support of the Conservative Party. And we submit that the CP had not adopted violence and most certainly not murder as one of their means to wage its political or ideological struggle against the African National Congress, its allied organisations or any other organisation. And more particularly, and this I would like to add having listened to the questions by members of the committee, and particularly there was no policy of assassination of a political leader with a high profile, if you would add that on point 4.2 Mr Chairman. With all the difficulties that we have had in our violent past, Mr Chairman, the political assassination of high profile political leaders, if not entirely unknown, was almost unknown on the South African scene. It has never been suggested Mr Chairman that the killing of the President or the leader of a political party, or someone, whatever one's views may have been about their actions, the country's problems would be solved by killing them. When I say never, we of course have the notable example in this case where are going to submit it was proved that it was not only Mr Hani that was on the list for elimination but also Mr Mandela, Mr Slovo and other political figures in the country in order to create the chaos that the two applicants have spoken of. We submit that their act could not have been permitted in the course and scope of their duties because the CP had not advised, planned, directed, commanded or ordered assassinations as one of it's means of waging political struggle. Mr Derby-Lewis told us what his duties were, Mr Walus hardly had any duties to perform in regard to the Conservative Party except to possibly help with elections. So that in the course and scope of their duties, advised, planned, directed or commanded or ordered by the political party. In order to answer this question we have to say, what were their duties and was it within the purview of their duty and were they ordered to do it? One can understand Mr Chairman the security policeman who said that I was given the duty of safeguarding the security of South Africa, the politicians made the decisions that this is the society that they wanted, I was a servant, my duty was to protect people. The politicians identified, or my superiors identified Mr Goniwe to be assassinated, in the furtherance of my duty, I did it. How do these two applicants bring themselves, having regard to the duties that they had to perform, vis a vis the Conservative party into saying that it was in the course and scope of their duties as members of the CP Mr Chairman? There is no such evidence and in our submission the applicants haven't even applied their minds to that question and therefore on that ground amnesty should be refused. But let's go further Mr Chairman; 4.4, the CP had not given any express or implied authority that assassinations of political opponents was sanctioned and you may notice Mr Chairman that we actually draw a distinction between the assassination of political opponents of high ranking and I would ask high ranking political opponents in Section 4.4 because it is in the South African context a most unusual thing. Which national leaders of any political party have been assassinated in South Africa? CHAIRPERSON: Dr Verwoerd was wasn't he? MR BIZOS: Yes Dr Verwoerd was but not at the instance of a political party, by a madman. The two applicants do not contend that they were mad. I can think of no assassination of a political leader in the country at the instance of another political party Mr Chairman, but it may be that I had missed something along the way, I don't think I have. We then go on Mr Chairman on 4.5, the applicants can not rely on any implied authority or perception that violence and more particularly a high ranking political leader, was one of the means of struggle in view of the standing within the CP of the second applicant and the close association between the two applicants who are clearly on their evidence co-conspirators rather than inciter and incite. Now again Mr Chairman, where did they get this authority from, we have and particularly on the section of the argument that is going to be dealt with by my learned colleague, Mr Malindi, we will give the Committee the references Mr Chairman where this is documented, we believe that there can be no real answer to the evidence that came to Dr Hartzenberg himself, from the other leaders of the Conservative Party and we will submit Mr Chairman in so far as credibility is concerned that Dr Hartzenberg's responses in relation to violence to Mr Venter, is what the Committee should accept as the truth and not the pathetic figure that Mr Hartzenberg cut when he gave evidence before the Committee trying to explain this. Let me just say briefly Mr Chairman that for him to have said that - "I as the deputy leader said a few days after the murder that we were the people with the moral high ground, we did not use violence, nor assassination..." to come here and try and excuse it on the basis that political leaders would not come out with it openly, is a pathetic attempt by a discredited politician to help one of his fellow party members of a discredited political party out of the difficulty in getting amnesty. And what we submit in 4.6 Mr Chairman or 4.5, we will refer to the passages and there isn't only one, such passage, but particularly one of the passages in answer to the committee member Advocate Potgieter which makes it quite clear on the evidence of both of them that they were co-conspirators planning this together and there was no element of inciter and incitee. We draw attention Mr Chairman that the word order was introduced into Mr Derby-Lewis' vocabulary after the Max du Preez show was shown to him where Mr du Preez offered some legal advice which he took with both hands, not legal advice - offered the possibility that Walus may have an additional defence, that it was taken with both hands and Counsel for the applicants used the word order intermittently in the heads of argument without having regard to the evidence that there was this co- conspiratorial relationship rather than the one of inciter and incitee. And we say in 4.6 that there are no reasonable grounds upon which the applicants can claim that they believed themselves to be acting in the course and scope of their duties, and within the scope of their express or implied authority, we will rely heavily upon the position of Mr Derby-Lewis' in the Conservative Party and if Mr Walus was a co-conspirator and not an incitee then it would follow in his case as well. But there is an overwhelming probability that people as close to one another as this, and we submit that Mr Walus would not have given the Committee an impression that he's a weakling or a yes-man to anybody's will. He bragged about his prowess in the statement recorded by Mr Deetliefs and Mr Beetge and nothing in his demeanour or in his actions or his absence of any remorse on his part and the manner in which he dealt with himself in this court, that before this Committee, thus could not have given the impression that he's a weak person that was mislead by Mr Derby-Lewis. JUDGE WILSON: Mr Bizos, has the Act been amended. MR BIZOS: Yes it has Mr Chairman and I have a note at the bottom of it by my attorney who's copy I have but she obviously checked it that a. deleted by the - I may say Mr Chairman that once Judge Wilson raises it, I hadn't looked at it before until Judge Wilson read it, I have not made up my mind finally and we have to do something tonight in order to make what we hope to be meaningful submissions or as to what it's effect may or may not be on this application and we are indebted that it was drawn to our attention so that we can deal with it. Then we say in paragraph 4.7. the offence was not committed in the course of or as part of a political uprising, disturbance or event or in reaction thereto as that the time of the negotiations had reached and advanced stage and a peaceful solution to the country's problems was in sight. Now I want to make clear Mr Chairman that we submit that the conflicts of the past were coming to an end. Counsel for the applicants said but look what Mr Visser told us that Gen Viljoen was planning, that was, we submit, clearly a conditional possibility, if there was not a settlement. As it turned out, General Viljoen himself subscribed to the settlement, therefore what might have happened according to the plans of the Volksfront at that stage which were not publicly known for which the applicants do not purport to have been acting on behalf of, can be left out of account, we submit. What is relevant and the evidence stands uncontradicted, it was put down in a written statement supported by annexures which are before you as Exhibit, it's Bundle B which contains, it's a carefully prepared statement and practically all the statements in it are supported by what Mr Jeremy Cronin now says Mr Chris Hani said at the time, but we were careful to go to the public record as to what Mr Hani was saying at the time and what he was saying was obviously gaining ground and obviously not to the liking of the fanatics like the two applicants, Mrs Derby-Lewis and Mr Clarke. And it is that, and when their party in April 1993 was party to those negotiations, Mr Chairman, how could they believe that killing one of the negotiators and the general secretary of one of the negotiating parties at that process where their own party was participating be in the course and scope of their duties or that they had the express or implied authority? It can be tested in this way Mr Chairman, there was Mr Langley there if I remember correctly, there was Mr Hartzenberg there, pride of place for the television cameras of the world negotiating for a settlement, these applicants say that whilst they were in CODESA negotiating a settlement, these two gentlemen believed that they had express or implied authority from them to kill on of the top leaders of the alliance working to bring about democratic changes. Again Mr Chairman, I must refer to these four, and I include Mr Clarke, to this day Mr Chairman they speak about a communist party take-over. They do not accept that we had a democratic election. To them democracy means something else entirely. I mention this because we will make some references to it in greater detail as to whether reconciliation is about to take place by people who still speak about a communist take-over when 62 or 63% of the population of this county voted for the government that is in power. They may be fanatics, they may be unreasonable, they may be beyond the pale, but none of those entitle them to say that they believed that they had express or implied authority. There was nothing happening at the time to which they had to react by killing a top leader. Then we say in 4.8 Mr Chairman that the Act was not proportional to the objective pursued in their own version and on their own version they sought to create chaos, expecting hundreds if not thousands of people to be killed during a race war in the hope that the riot would stage a coup. This has been canvassed, I do not want to take up very much more time on it at this stage, it was very important for the proportionality. But I was actually somewhat surprised by the Counsel for the applicant, Mr Chairman that the killing of Pieterse led to chaos. I don't know why he said that, I would have thought that that would have been a warning to his client about irrational killing of people because we know that hundreds if not thousands died as a direct or indirect result of the wanton killing of Master Petersen on the 16th of June 1976. And in 4.9 Mr Chairman the relationship between the objective pursued and the act is director or proximate, particularly as on their own version they had not planned or even informed the CP who they claim to have represented or any elements, to any elements of the right. I think that the members of the Committee are aware to what we are referring to in this regard and I will take it no further at this stage. Now in relation to full disclosure Mr Chairman, we submit that the applicants have not made a full disclosure of all the relevant facts and have been untruthful relating to when the conspiracy to kill Chris Hani was first mooted or entered into; who were the victims of the conspiracy; who had become members of the conspiracy and more particularly Mrs Gaye Derby-Lewis and others who had procured the murder weapon; who procured the murder weapon and the reasons thereof. Details of this are given in the rest of the heads of argument. It is further submitted that the grant of amnesty to the applicants would be inappropriate and not in accordance with the objective of the Commission to promote national unity and reconciliation in that the act or offence was committed during the time when the country was at its most sensitive stage towards building peace, reconciliation and democracy. The offence was of such gravity that the chaos envisaged to result from the assassination could have led to the death of many innocent civilians. Well may I pause here and again refer to the evidence of Mr Jeremy Cronin as to how near we were to a civil war and the real chaos that had been envisaged and the evidence that had it not been for the leadership of Mr Mandela then as President of the ANC and Mr Tokyo Sexwale as the Transvaal Chairman of the ANC, there would so easily have been a blood bath and a race war in South Africa. JUDGE NGOEPE: Mr Bizos I do not understand the first sentence in that sub paragraph. The second one I would understand provided it still deals with the question of proportionality and therefore that it's not a new argument. MR BIZOS: Yes the sentences should have been the other way around, it's not an argument, it's a fact supporting the argument appearing in the second sentence. Or have I misunderstood the question? Are we talking about the first sentence of 5.1 JUDGE NGOEPE: Correct yes. MR BIZOS: And is that compared to some other sentence? JUDGE NGOEPE: No reading it on it's own, it somewhat surprises me because well in conjunction with the introductory part which is 5.5, and if you read 5 and then you say 5.1, you say that the grant of amnesty to the applicants will be inappropriate and not in accordance with objectives of the Commission to promote national unity and reconciliation in that the act or offence was committed...(intervention) MR BIZOS: I can see that, it's confused thinking with respect and I'm sorry for it. There are really two separate issues; when was it committed, and under what circumstances and that is a proportionality argument, the other is should it be granted because of - and they are really separate points, I agree. JUDGE NGOEPE: And them being separate points, why would they - if requirements are met, if prescribed requirements for amnesty are met, why should we refuse the applicants amnesty simply because at that stage, simply because the offence was committed at the time when the country was at a sensitive stage? MR BIZOS: That is why I say it's not a separate ground, it's ground supporting the proportionality argument. JUDGE NGOEPE: Thank you that's understandable, yes. MR BIZOS: Probably if it had been more fully drafted it would have been more - it's more appropriate to the proportionality argument. And in 5.2 according to the applicants, the struggle continues and it cannot be discounted that they remain committed to the objective of creating large scale chaos which will create this was an attempt on their own version, and attempt at coup than Mr Clarke that we had here yesterday. Perhaps if the Committee would allow me a personal observation, the applicants and their counsel thought the world of Mr Clarke as a witness, we submit that he is so besotted by hatred purporting to be a fundamentalist Christian, so besotted with hatred and admiration for the two murderers applying for amnesty that I would suggest that there is very ....(tape ends) .. it doesn't appear in the heads of argument elsewhere, I might as well deal with it at this stage Mr Chairman even though I'm on an overview. Counsel for the applicants dismiss the evidence of Mr Visser as fanciful and self-serving. Yes it may well be but there are two inherent improbabilities in Mr Clarke's evidence who denies that anything like that happened. Firstly why should Mr Visser have gone to Mr Clarke and asked Mr Clarke and Mr Roodt to apply for amnesty? Secondly, if Mr Clarke is telling the truth that Mr Visser was, he's the fault ..(indistinct) and that the relationship between the two of them had soured by the time of the commission of the murder, why Mr Clarke on his own version disclosed to Mr Visser that there was compromising information in his computer's hard disks? Since when on the general and particular probabilities does a witness confide that sort of information? If we turn to paragraph 5 of page 3 Mr Chairman: "It is further submitted that the grant of amnesty to the applicants will be inappropriate and not in accordance with the objective of the Commission to promote National unity and reconciliation in that the offence was committed during the time when the country was at the most sensitive stage with the building of peace, reconciliation and democracy, the offence was of such a gravity that the chaos envisaged to result from the assassination would have led to the death of many innocent civilians. According to the applicants the struggle continues and it cannot be discounted that they remain committed with the objective of creating large scale But now Mr Chairman, amnesty is provided in relation in of that which included excludes other possibilities. It was only amnesty to be given any person in the performance of a coup purposes of preserving law and order. We turn in paragraph 6 to 6.1: The failure to make full disclosures. We submit that Mr Derby-Lewis has lied about the involvement of Mrs Derby-Lewis in the compilation of the hit list and the reasons therefor. Derby-Lewis testified that he first saw the list of the nine names in Cape Town when Mrs Derby-Lewis showed it to him as part of the gravy train story which was to be used by Dr Hartzenberg in Parliament. We submit that that's false Mr Chairman. This could not be true because in January 1993 when Mrs Derby-Lewis telephoned Arthur Kemp and sent him a list of 90 names it was after she and Derby-Lewis had discussed it and decided that unless something dramatic was done the country would be controlled by a communist. "Clive and I therefore highlighted the names of people whom we believed to be the enemies of South Africa". This comes in R4.251, paragraph 43.1, we are going to argue Mr Chairman in due course that their statements are admissible as the ruling of the Committee indicated and that weight should be attached to it. We will refer you, not to generalities or the cross-examination put to Mr De Waal, but to her own statements that she is unable to deny that this is what she said and that she made that freely and voluntarily despite certain discomforts that she says she suffered under. If that statement of Mrs Derby-Lewis is admitted and what we say is that we must take it together with the probabilities; the probabilities of this close union between these two persons and having regard to the character of Mrs Derby-Lewis, we are not dealing here with a compliant housewife, we are dealing with a high profile propagandist in the Patriot who in her exaggerations and fanatical statements probably has no equal and who has a mind of her own. No serious step in relation to the preparation of this list would have been without her consent, and what we say at the bottom of page 4, 'on 29 April 1993 whilst in detention, Mrs Derby-Lewis was shown three pages compiled as the hit list and recognised them as the list of names and addresses that she had given to her husband. This is evidence that Mrs Derby-Lewis knew of what purpose Mr Derby-Lewis needed the list. Of course Mr Chairman, I'll remind you at this stage that she denied flatly before the Judge President of the Transvaal as it was then known, that she had given the list to anyone, she made up a fabric of lies about it being left on her coffee table with copies of the Patriot which Mr Walus may have mistakenly taken. When Mrs Derby-Lewis compiled the original list of 19 names, she knew that the people whom she and Derby-Lewis considered to be enemies of South Africa were to be murdered, that after she had received the list of 9 names, Chris Hani was targeted for elimination, that the houses of the people identified for elimination would be reconnoitred and that Walus the one who was going to assassinate Chris Hani and we give you the passages in R4 Mr Chairman. When cross-examined on why she needed addresses of certain people that she could either telephone or visit their offices, Mrs Derby-Lewis gave some preposterous answers. Although she didn't think Hani would give her a private interview in his home, she still wanted the address so that she could see the way he lived. The answer is absurd, if she was not going to be allowed into the house in the first place. Mrs Derby-Lewis gave totally unsatisfactory and evasive answers to members of the Committee Mr Chairman about why she would have wanted to interview certain people who appear on the list and as to why she didn't visit certain journalists or telephoned them at their homes instead of seeking their addresses through Mr Kemp. We give you the references; it was a long exchange Mr Chairman and we submit that it bristles with improbabilities. It is submitted that the reason she has for compiling the list be rejected and that it be found that the list was compiled as a hit list. CHAIRPERSON: The one thing that sometimes worries me about this is, why if people are busy carefully planning the assassination of others, why would they make a list and in fact bandy it around. MR BIZOS: Well I can venture a number of reasonable possibilities as to why they would do that. First of all, either at the time that they were doing the list or before that they had hoped that more people would come into the conspiracy and it may be that they wanted to show them, these are the enemies of the Afrikaner Volk, these are the people that we must eliminate. They wanted an order and in answer to Judge Wilson as to why Walus marked it 1 to 9, is a ridiculous answer, with respect. You'll recall that it was in order to speak on the telephone by number, and I think it was the chairperson that asked well if there was only going to be one, why talk in numbers anyway? So that a list is some evidence that this was or was intended to be a wider conspiracy than we have heard of here. The other of course is, criminal investigators in the administration of justice thrive on it. Many of the people that plan similar crimes are just stupid. In the Goniwe matter they dropped a name plate, otherwise the Goniwe people would just have disappeared for ever. It is the sort of thing, the sort of oversight or the sort of conduct which makes investigation possible. But certainly what it is not, is a list for journalistic purposes because we have the evidence of Mrs Derby-Lewis in the criminal trial. We will refer you to the passage Mr Chairman where His Lordship Mr Justice Eloff holds the evidence to be highly improbable. However in that criminal trial there was an onus which had to be discharged and probabilities were not enough. The Committee here, and this is why she could not be convicted on the second count of conspiring to kill the people on the list, but here we had the additional evidence, their own statements, we have the evidence here of what Mr Derby-Lewis admits to doing which was not before His Lordship Mr Justice Eloff and I would submit that although the Committee will accept the learned Judge's view that it was highly improbable, what has come forth since, that Mr Derby-Lewis indeed had this list, that he did get it from his wife, that he did give it to Walus, that he and Walus, on their own version had planned the assassination, so that claiming that this was an innocent list on the probabilities was unlikely for Judge Eloff correctly, for this Committee it is beyond reasonable doubt. That is the submission that we make in relation to the list and Mr Derby-Lewis lied about it, Mr Walus lied about the purpose of the list, Mrs Derby-Lewis lied in relation to the purposes of the list. Therefore in relation to lack of full disclosure, if our submission is well-founded that all three of them knew that there were to be more than one victim and at least another appears in the list of nine, then each one of them has failed to disclose the truth. Let us take it on the probabilities. After all we only have the wrong-doers testimony to work on and it may well be that none of them was expressly prepared to say or Walus was not prepared to say that I knew that this was drawn up by Mrs Derby- Lewis and I knew that it was a hit list for the nine, if the inference can be drawn, and we submit clearly that it can, that all three of them knew what they were doing and what they were saying about the nine people on the list, there has not been full disclosure, that neither of them is entitled to amnesty and it is a pity that the safeguards of double jeopardy, Mrs Derby-Lewis does not have to answer any more to Mr Hani's death in a court of law. CHAIRPERSON: Another possibility could well be is that initially the list was sought for the purpose that we are told it was sought for and then later however, certain names were identified from it for purposes of elimination, which does not destroy the original purpose for which the list was sought. MR BIZOS: Although that is a theoretical possibility, the admissions of Mrs Derby-Lewis in R4 exclude it because she says, I can read the passages now - 251 of R4 Mr Chairman. "In January 1963 I telephoned Arthur Kemp at the Citizen in Johannesburg and said I was going to send him a list of names and that I wanted a description of their houses and addresses. This was done after much serious thought and because Clive and I felt that unless something dramatic was done the country would be controlled by the communists". Now may I just for one moment deal with the question of admissibility and weight at this stage? This is completely consistent with what all of them said. So how does it help the applicants to say that words were put into the mouths of Mrs Derby-Lewis or Walus or Mr Derby- Lewis? "Clive and I therefore highlighted the names of people whom we believed to be the enemies of South Africa. Certain names were added to the list I sent to Arthur such as Justice Goldstone and certain newspaper people. Goldstone's address was needed to determine where he lived because I wanted to do an article on how he who helped to break down the Group Areas Act was now living in a white are far away from the results of his 1984 Govender Judgment'. Now it also says something about Mrs Derby-Lewis Mr Chairman, not an unformed person, she knows the name of the case. 'The journalists address were requested because I wanted to write about them about their attitudes towards the CP. I asked Mr Pik Botha's address because there strong rumours that he owned property overseas. This has been reported in the in the Afrikaner newspaper and perhaps the company which owned his property here, if a company owned it, would be the same company which owned the overseas properties. When I asked Arthur on the phone about supplying the addresses, I did not go into specifics. He is politically shrewd and I believe that he felt that there was no need to spell out why we needed the names. After all we were on the phone'. Now is not that the statement of a conspirator, is that the statement of a person who wanted to write about the gravy train, about which she had already written before and had shouted it from the roof tops? Why would she not want to discuss it on the telephone now. I'm reminded the clandestine way in which Mr Clarke has bothered to take it to the Rotunda and to hand it over to him in his absence or out of his hearing on his evidence if he is to be believed. That's not a list but we go further. On page 252, paragraph 44, certain of the names on the list we believe to be the enemies of South Africa. 'Clive and I had vague plans in the beginning that some sort of arrangement should be made to liquidate one or perhaps more leaders of the ANC and the SACP Communist Party. The people on this list whom I believe to be the enemies of South Africa were the participants in 'Operation Vula'. You've heard the echo yesterday from Mr Clarke who were never prosecuted by the government and member of the ANC and SACP Communist Party. Some of the names were Maharaj, Hani, Mandela Kasrils, Naidoo, Ramaphosa and Slovo. 'Clive and Kuba decided on Chris Hani to be eliminated because of his particularly brutal record and his position as chairman of the SA Communist Party which they believed never should have been unbanned. Clive and Kuba wanted a description of the residences and I can only assume that this was to determine what sort of security surrounded the houses. I simply asked Arthur what was asked of me; I'm not a logistics person, nor was I present at any discussions in '93 between Kuba and Clive about logistics', not about the conspiracy, just the logistics. 'It does not mean to say I am denying that discussions between the two of them were not going on. Clive told me sometime in March that he and Kuba had decided about Chris Hani as the person to be eliminated. I don't know what Clive and Kuba discussed about the other enemies mentioned on the list, Arthur Kemp phoned ..' may I pause here. Her previous statements make it quite clear that Hani was not alone, there was a whole list, what she says here, 'Arthur Kemp phoned me to say that he had got some of the addresses I had asked for and I asked him to fax them to me. I asked him to fax the street address and the description of the residence referring to the ANC/SAC people and the description of the residences referring to the ANC/SAC people'. I suppose she didn't want a description of Mr Justice Goldstones if she's telling the truth about the article and not if he was not on the hit list, it's possible. And the reporters that she wanted to - it may be that there may have been people there as a camouflage, possibly but there is no doubt about the description of the residences referring to the ANC/SAC people and if we look at the exhibit with the nine names on, I can't remember whether everyone was an ANC/SACP person but certainly the majority, but with these fanatics Mr Chairman, who is an ANC/SACP person isn't a matter of nice distinction as far as they are concerned on the evidence I would submit, but anyone who is not fanatically preoccupied with herrenvolk ideas is a communist or an ANC person. Then on page 253 that, 'Arthur and I met at the Rotunda where Arthur gave me the names and the few other clippings for which I had asked him and Arthur told me that he was resigning from the Citizen and that he felt tired and was sick of ...(indistinct), Arthur said that he would be doing other things with his life not connected with this, generally such as statements, business and other...(indistinct). I presume Arthur wanted to seem me rather than just faxing the list because he saw the implications of the list and felt he should not fax it to me.' Now isn't that a conspiratorial way of dealing with things? I will deal with it in due course but what I want to emphasise at this stage, that where we have an improbable story told in the Supreme Court where ridiculous explanations are given by the witness in the witness box and where we do know that the handwriting on the list is that of Walus, we know that Mr Derby- Lewis and Mr Walus had discussion on the list, that they were the ones that planned the murder, it becomes proof beyond reasonable doubt on Mrs Derby-Lewis' false evidence, coupled with the statements that she made which have not been shown to have been made under any sort of pressure, not only that what the applicants have to show that her treatment was such that she was in due course to lie about herself, about Walus and about her husband, she specifically disavowed any such happening in relation to her. She was specifically asked and we will further commit it to the passage by a member of the committee, and I have a graphic recollection of it, 'Despite all these things that happened to you..', if I remember correctly, it was the Chairman but I may be mistaken. 'Did you tell them anything which was untrue?' and the answer was no. And let us remind ourselves how untruthful she was in relation to the portions that she learned were not on the video which was available. She blue hot and cold and we refer to the cross-examination and these are the passages which are - if I could refer you to page 402 of R4, it's the continued portion, R4 continued, 402. Well could we start with Item number 47. 'On the Sunday I saw Kuba's photograph in the newspaper and recognised him at once. I was very shocked but in my heart not at all surprised. There had been a lot of talk between right wingers of solutions to the problems in the country'. This is the evidence her. 'Clive said that he had discussed these things with Kuba'. Well that's true as a fact and of overwhelming probability that her loving husband would have told his loving wife. 'Clive was upset and I asked him what he was going to do'. A highly probable conversation after the wife party to a conspiracies was speaking to her husband after they found out that the one of the victims of their conspiracy had been murdered. 'He said that during the discussions with Kuba they had mentioned such a thing like Hani's death, he said that he hadn't thought that Kuba would do such a thing at all'. Well it's partly true but certainly not the statement of a person who is being coerced to give evidence against her husband or for any other purpose. 'He did say that he couldn't understand why Kuba had been so stupid to drive around so obvious, Kuba was supposed to change the number plates. He did admit to me however they had discussed it. Clive did however say it looked like a set-up, seeing Kuba was caught so quickly. We suspected APLA, we talked about Hani suddenly talking peace when he was the manifestation of the resistance. Hani criticised the PAC in the week or two prior to the killing. Clive thought that either APLA, the government or someone was behind it, as it didn't should like Kuba who would go into a situation head-on. I asked Clive about the gun but he did say he couldn't tell me where he had got the gun from'. Now one does not dismiss that sort of evidence corroborative of the overwhelming probability found by Judge Eloff even without this. Then on top of page 6, during the criminal trial, Mrs Derby- Lewis had given one other reason for the list to be the purpose to write a book with Mrs Ida Parker in addition to the list being for the purposes of conducting interviews or for use by Dr Hartzenberg. The court held that Mrs Derby-Lewis was not truthful about the list and that here explanations were far fetched and that is the reference Mr Chairman to the criminal record. In her statement during detention Mrs Derby-Lewis says she did not show the list to anyone in Cape Town including Mr Derby-Lewis, that is in the statement and we give you the reference, I submit that it's a correct reference, I don't want to read them unless members of the Committee want me to. Her evidence before the Committee that she placed this list on Dr Hartzenberg's table and the evidence of Dr Hartzenberg that you saw documents on his table in Parliament, placed there by Mrs Derby-Lewis must be regarded as false. Derby-Lewis is correct when he says that he took responsibility for compiling the list when he made his statement in detention in order to protect his wife. His wife needed protection because the list was a hit list and he and Walus had already been arrested. JUDGE WILSON: Can I interrupt you for a moment Mr Bizos? For the assistance of my fellow members, the reference at page 8 to the judgment R1 Volume 9, you can also find it in Bundle A at page 59. We're indebted to you Mr Chairman. CHAIRPERSON: Yes because there are a couple of blanks there which we have to fill in. MR BIZOZ: Mr Derby-Lewis lied about Mrs Derby-Lewis' knowledge that Chris Hani was targeted for assassination. He had told her sometime in March 1993, if not earlier that he and Walus had decided upon Chris Hani as the person to be eliminated and I give the R4 reference. Mr Derby-Lewis has lied about Mrs Derby-Lewis' knowledge that he had obtained the firearm for the purpose of eliminating some of the people whose names appear on the list, Mrs Derby-Lewis says the following in the statement: 'It was obvious to me that Kuba had already done the deed and Clive and I later confirmed that Kuba had used the gun which Clive showed me one day in the house with a silencer'. Now Mr Derby-Lewis of course saying that he had a gun with a silencer for self protection and for practice for the neighbours not to hear, is something so far fetched which we submit will not be believed. CHAIRPERSON: Perhaps this might be a convenient stage to take a break Mr Bizos. Is there a whole likelihood if your finishing this afternoon. MR BIZOS: No Mr Chairman, unfortunately not, but we should finish in the morning Mr Chairman. CHAIRPERSON: Very well adjourn now and resume at 9H30 tomorrow morning. COMMITTEE ADJOURNS 270 MR PRINSLOO ARGUMENT BOKSBURG HEARING AMNESTY/GAUTENG MRS VAN DER WALT 379 ARGUMENT MR BIZOS 412 ARGUMENT