CHAIRPERSON: Today we have just got to hear submissions. Mr Knoetze are you ready to give the submission?

MR KNOETZE: Thank you Mr Chairman. Yes I am ready Mr Chairman, but before I address you may I seek permission from the Committee to call my client, General Joggel van der Westhuizen to speak a few words to you.

CHAIRPERSON: You did discuss this matter with us in chambers and we can see no difficulty in calling the General again. Mr Knoetze you say it's just a statement he wishes to make - you don't have to take the oath or what?

MR KNOETZE: It's a statement Mr Chairman, the oath is not necessary.

CHAIRPERSON: Yes.

GEN VAN DER WESTHUIZEN: Chairperson thank you very much. I'd like to say the following:

There are three things about which I have regrets.

Firstly, I am sorry about the fact that the new RSA had to be borne from a revolutionary war and that it wasn't the result of an evolutionary process. A political process which should have started decades ago.

Secondly, what I am sorry about was that Strelitzia was never applied. That would have made a plan like Katzen unnecessary.

But above all what I am sorry about is that there are all those victims and casualties on both the revolutionary and the counter-revolutionary sides. I regret the deaths and the maiming and - I am sorry about the death and disruption and the maiming of people on both sides and especially one thinks of all the civilians, civilians on both sides who were affected.

Having said that, Chairperson, I am very pleased that the revolutionary war never ended up as a destructive civil war, because a civil war is one of the worst types of war which a country can experience, and the fact that it never degenerated into a civil war should be acknowledged by both sides who took part in the war and both sides should be given recognition for that.

Secondly I am pleased that nobody was directly killed as a result of Katzen.

In the third place I am glad that, as one of the first generals to appear before an amnesty committee, I had the opportunity to sketch the Defence Force's role in this war.

I am also pleased, and I am glad that I have the opportunity to take part in the peace and recovery of the country. For me a general who only fights in the war and does nothing afterwards is only half a general.

Then in conclusion, I came here and didn't know what to expect. There is a lot of criticism expressed towards the TRC, for me the proceedings here were dignified and just and fair, and I feel the better person for it.

Thank you.

CHAIRPERSON: Thank you General, we appreciate those words that you've given.

Mr Knoetze.

MR KNOETZE ADDRESSES: Mr Chairman may I start off by referring the Committee to Section 20 of the Promotion of National Unity and Reconciliation Act No.34 of 1995. I will take the section portion by portion and deal with it as we continue Mr Chairman.

It starts off by saying that:-

Now regarding the question as to what comprises an application Mr Chairman, I would like to refer the Committee to the decision of M G HOLMES (PTY) LTD v NATIONAL TRANSPORT COMMISSION AND ANOTHER 1951(4) SA 659 (TPD), more specifically at pages 666H-667B, where the learned judge indicated that it was not only the written application but everything that is placed before the tribunal that comprises the application.

So that in this instance, Mr Chairman, I submit that General van der Westhuizen's application comprises his written application as well as the verbal evidence which he gave as well as the exhibits that we handed up, as well as this address which I am now making to you.

Then secondly, Mr Chairman, regarding the words "is satisfied that", I would like to start off by referring the Committee to the post-amble to what is called the Interim Constitution, namely the Constitution of the Republic of South Africa Act 1993, Act 200 of 1993, which reads inter alia as follows:

To add onto that, Mr Chairman, to refer you to a portion of the preamble to the Promotion of National Unity and Reconciliation Act which reads:

Then the legislature continued to write down the Act.

Then thirdly on this point Mr Chairman, I'd like to refer you to the decision in the Constitutional Court of AZANIAN PEOPLES' ORGANISATION AND OTHERS v THE PRESIDENT OF SOUTH AFRICA AND OTHERS 1996(4) SA 671, and more particularly at page 685, paragraph 19. The judgment was given by His Lordship Mr Ismail Mohamed.

and he is now referring to gross human violations...

Why I refer you to this Mr Chairman, is to submit to you that you should rather more easily be persuaded and satisfied than not, and that by adopting that more lenient attitude you will be, in fact, doing that which the Interim Constitution and the Act and what Judge Mohamed has been referring to, namely to assist in the building of a new and better South Africa.

Then Mr Chairman, Section 20 continues in 1(A) by a reference to the application. It says:-

Now we submit that that reference to the application must be a reference to what is stated in Section 18, which is the formal and written part of it.

CHAIRPERSON: Is that, that is the way that it's approached, and I don't think there's any difficulty in this matter relating to that ...(intervention)

MR KNOETZE: I submit, not, Mr Chairman.

CHAIRPERSON: In respect of both applications.

MR KNOETZE: Then 21(B) reads, Mr Chairman -

Now in this regard, Mr Chairman, it is common cause, I would submit, that General van der Westhuizen was a member of the security forces at this stage, and if one then asks oneself, because section 21(b) forces you to go to section 22, whether the General was in fact performing these acts in the course and in the scope of his duties and within the scope of his express or replied authority.

CHAIRPERSON: Yes I think in that regard you know one can conveniently go to section 22 ...(intervention)

MR KNOETZE: "B" Mr Chairman.

CHAIRPERSON: No, sorry, section 20(3) and exclude personal gain, personal malice, ill-will, spite. I think once those have been excluded it's easier to then look at section 22. I don't think there's any question, in the evidence before us, of any personal gain, personal ill-will, malice or spite.

MR KNOETZE: In my submission there is none Mr Chairman.

CHAIRPERSON: Ja.

MR KNOETZE: On the contrary. The man did everything which he did, not only to comply with his direct orders and indirect orders, but also to benefit the people over which he had the duty to protect them.

CHAIRPERSON: Yes, and the personal gain of course referred to there relates to gain resulting from the specific act or incident. It doesn't obviously exclude salaried persons.

MR KNOETZE: Obviously Mr Chairman.

ADV SANDI: Maybe Advocate Knoetze one, in this connection, can also mention the fact that he had, the General had an ultimatum to get things sorted out by December 1986.

MR KNOETZE: That is true Mr Chairman. I would have obviously moved to that point, subsequently. But in my submission the most clear indication of the fact that he did what he did because he had to, is his directive in terms of which he was performing his duties and that appears in Exhibit C page 880, paragraph 4, which says:

and that is precisely what he was doing.

I also wish to refer you, Mr Chairman, to the directive which has been marked Exhibit D, which in paragraph 3 read with paragraph 8 says the following.

Then paragraph 6 reads as follows:

and then continues to set out how that should be done.

My submission is, Mr Chairman, that what General van der Westhuizen did in respect of Katzen, the writing of the plan and the subsequent execution thereof, falls squarely within those clear instructions which he had. But then as far as his directive is concerned, which appears on page 880 one can also refer to paragraphs 13 and 14 which refers to the JMC and says:

and so forth.

And then as far as the "JMB" is concerned -

and you've been told, Mr Chairman, what the purpose of those two systems were.

Then Mr Chairman on a broader scale I can refer you to numerous portions of what appears in Exhibit C, to indicate that on a broader scale this was also what he was expected to do. I can start off by referring you to Malan, on page 693, and that which he did, I submit, falls squarely within the broad indications given by General Malan. If I may take you, for instance, to page 707, paragraph 6.2. It reads:

Now that is what the position in which General van der Westhuizen found himself. He was a commander of the Eastern Province Command and had to do, in terms of his broad instructions, that which was necessary in that area and Katzen is what he thought was necessary.

And then page 709, paragraph 6, the last portion which reads:

In other words the territory of the Republic of South Africa was declared an operational area for the South African Defence Force. Merely to indicate once again to you, Mr Chairman, that it was a legitimate fight and war against the terrorist organisations.

Then paragraph 7.3 and 7.4 on page 710, especially paragraph 7.4 where General Malan stated that -

Here reference can be made to hundreds of community projects over the length and breadth of Southern Africa which is also what the General did, Mr Chairman.

Then page 722, paragraph 10.4 where in the second portion it is stated that -

which is the same timeframe during which Katzen was written and executed Mr Chairman -

Which is a much stronger policy than that which General van der Westhuizen tried to execute when he did Katzen, Mr Chairman. He wasn't going to the extremes that would, even if he had, been within terms of the government's policy at that stage.

I can also refer you, Mr Chairman, to the submission made by the SANDF which is the first part of Exhibit C where on page 135 and 136 paragraph 55. There appears a quotation from what was broadcast by Radio Freedom which clearly indicates the manner in which the forces which General van der Westhuizen was opposing saw the situation at the time. It says:-

Now clearly Mr Chairman, the government of the day, as well as General van der Westhuizen in his position, was entitled to fight the war in the manner in which it did against the people who made such declarations.

Then I can also refer you, Mr Chairman, to what is termed as Book 1, page 761, more particularly at page 762. You will recall that this is an annexure to the submission which the SANDF made to the Truth and Reconciliation Commission. On page 762, paragraph 1.1, Mr Chairman, it is indicated that already on the 4th of March 1980, when this document was written it was stated that:

Then page 764, paragraph 1.13.4 where in the second portion of that paragraph it is stated that -

which I submit, Mr Chairman, falls squarely within the purposes for which General van der Westhuizen wrote and executed Katzen.

The same goes for the second portion of paragraph 1.14.1 of that page which reads:

Once again, Mr Chairman, a clear purpose of plan Katzen.

The same can also be found on page 768, Mr Chairman, paragraph 3.5.1.3 where as part of the political policy it is stated that - it can be summarised to include -

Once again you will recall ...(indistinct) of that which he envisaged Mr Chairman. And there are others Mr Chairman. I won't keep you longer on ...(intervention)

CHAIRPERSON: I think you know on this line as well Mr Knoetze there's - we've heard that what General van der Westhuizen did was to draft the plan. I mean he conceived it and drafted it, but then he submitted it to his authority, to the head of the Defence Force ...(intervention)

MR KNOETZE: The army ...(intervention)

CHAIRPERSON: ...to the army for consideration. It could have happened like Strelitzia and just ended there, be killed and buried, end of story, but the decision was then taken at that level to go back, do a little bit more work on - appoint a couple of chaps to assist and then to proceed with portions of phase 1. So it's not that General van der Westhuizen did this himself and implemented or started to implement it, but I think that's also an important consideration.

MR KNOETZE: I submit it's most important Mr Chairman. Clearly the plan was, at least as far as that portion, authorised, the evidence states that the people who we say authorised it, have been represented in this hearing before you and no objection has come from any one of them. On top of that the fact that payment has been made to various people, the payment that was eventually made to Ron Reid-Daly and his squad could not have been made if there wasn't proper authorisation.

So if the Committee is satisfied on that Mr Chairman I won't take the time for that.

CHAIRPERSON: You see I mean we are bound by the evidence in front of us unless we are the view that it's so improbable that it may be rejected as being false ...(intervention)

MR KNOETZE: Which evidence I submit, Mr Chairman, with respect, is acceptable not only because it wasn't challenged but you heard the quality of it. The witness was clearly speaking from his heart. He was honest. He disclosed everything. You will recall that we also made further documents available to the leader of evidence which he did not even find necessary to refer to, which must be an indication to you that everything of substance was in fact referred to. It is for that reason, Mr Chairman, the requirement contained in section 21(c) I submit has also been satisfied.

Mr Chairman there is also of course section 22(e) which, if the Committee has any problem, in regard to the coup d’etat in respect of which you will recall General van der Westhuizen testifying that when Ron Reid-Daly wanted to do it he was advised not to do so, the defence force wasn't supporting him anymore although it had been part of the plan initially. But 22(e) reads that:-

CHAIRPERSON: Yes.

MR KNOETZE: And insofar as that may be necessary I request that you also take that into consideration Mr Chairman.

If I may just come back to that which is contained in section 23A-F by saying to you that in my submission all the requirements contained there have been satisfied by General van der Westhuizen but that if you should have any problem I would like to refer you to a decision in which these principles have been discussed which is RAPHOLO v THE STATE PRESIDENT AND OTHERS 1993 (1) SA 680 (T), but I submit Mr Chairman this is not a borderline case. You need not do so.

CHAIRPERSON: Yes I think that can - when you are dealing with illegal orders or orders to commit illegal acts etc that covers those principles, amongst others as well.

MR KNOETZE: Precisely Mr Chairman.

Mr Chairman in conclusion then I would submit to you that the evidence before you in this amnesty application is such that you ought to be satisfied that the application complies with the requirements of the Act and that the act and commission of the offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past and that the applicant has made full disclosure of all the relevant facts.

Now we have already addressed you Mr Chairman as to whether it is necessary to refer to specific delicts or offences. I repeat, with respect, that it is not necessary but you will recall that we have handed in Exhibit E and that those are the acts and omissions or of possible offences that we could identify but we would not like to bound to it Mr Chairman. I would prefer your order to refer to the broad actions flowing from Plan Katzen as we have stated it in our application, and of course I don't want to prescribe, but if you want to couple it to "E", please do so by not limit ...(intervention)

CHAIRPERSON: You want a dragnet ...(intervention)

MR KNOETZE: Not limiting the generality of the application as it was first filed Mr Chairman.

In conclusion, Mr Chairman, there is just one thing that I found reading through a book which is called the "Groot Aanhalings Boek", it quotes our President and it also indicates something of which General van der Westhuizen has been doing. The President said:-

and I suppose Mr Chairman, that this is also relevant in this case of ours and I ask you to grant the amnesty which General van der Westhuizen requested.

Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Knoetze. Mr Avenant are you ready to address?

MR AVENANT: Yes I am ready to continue.

Mr Knoetze has already touched on most of the aspects which I wanted to touch on, so I don't think it will be necessary to duplicate.

CHAIRPERSON: Yes it wouldn't be necessary to repeat - we find that it often occurs in hearings of this nature that the person who has to address second can adopt much of what has been said in the beginning, particularly relating to the sections of the Act and the requirements etc.

MR AVENANT ADDRESSES: Mr Chairman I would just like to concentrate on the orders and instructions, whether General Griebenauw acted on the instructions.

(The Interpreter requests the speaker to perhaps sit closer to the microphone, it's hard to hear him).

CHAIRPERSON: Sorry Mr Avenant, the Interpreter has asked if you could just put the microphone closer to you, she is having difficulty hearing you.

MR AVENANT: Thank you. I would like to just for a moment just concentrate on the order given to General Griebenauw since Katzen was, to a large extent, a Defence Force initiative and I would like to go back to that part of the evidence in respect of the meeting held in Port Elizabeth where the instruction was initially given and where General Griebenauw then voiced his objections to it.

His evidence was that he received an order from the Commissioner of Police via Brigadier Schoon who attended the meeting as the Commissioner of Police's representative at that meeting. It is my submission that this order was sufficient to place him within the requirements of the Act and in any event if there had never been such an order from the police side there would never have been a withdrawal from the Plan as the later evidence proves.

I do not know if there are any further aspects.

CHAIRPERSON: I think it is quite clear from the evidence that General Griebenauw what he performed and the orders he issued in pursuance to anything under Katzen was - he wasn't acting as a maverick and trying to further his own aims. In fact quite to the contrary it's quite clear that from the start he wasn't keen on it, but what he did was, because he was obliged he felt obliged to do. I think that's quite clear from his evidence and that he took the quickest opportunity to bail out of it.

MR AVENANT: That is correct. I won't take that any further. I don't think there is any need for that.

In respect then of the disclosure, and full disclosure I'd like to mention that General Griebenauw acted or he revealed and disclosed everything to the best of his ability, everything of which he was aware relating to this operation and I can imagine that where an operation of this nature and extent is launched that there could be several smaller operations which would follow from this bigger operation of which General Griebenauw was never aware of, and will never be aware of. It is my submission that if any information is disclosed or revealed in this regard then that should not be laid at his door and say that he did not disclose that.

General Griebenauw expressed his concern regarding certain statements regarding his evidence and perception of the words used, words such as "take out" etc, and he asked me to bring it to the attention of the Committee that that was his bona fide perception after he received feedback and report-backs from Major van der Merwe to the effect that there was planning put in place which would lead to people being killed and that that was the reason why he immediately withdraw from the Plan.

If you look at the statement of Major van der Merwe in this regard it's interesting to note that in paragraph 12 where he mentions the fact that there was no planning to kill anybody done in his presence he referred in fact to the meeting of the 10th of November 1986, and there had been a further meeting after that date on the 11th of November 1986. There is no reference to that meeting.

So it is in light of these circumstances that I would like to just mention my client's concern in this regard.

If there are any further aspects which the Committee needs elucidation on then please just ask.

CHAIRPERSON: I don't think so Mr Avenant thank you.

I will just ask the others if they - are there any other submissions that wish to be made - Mr Mapoma?

MR MAPOMA: I have nothing Chairperson.

CHAIRPERSON: Any further matters at all? Thank you very much. We will reserve judgment and hope to get the decision out as soon as possible.

I'd like to thank all the legal representatives for their assistance in this matter, presentation of all the documents etc.

I have been informed that next week's hearing - for some reason or other matters weren't set down for Monday, Tuesday and Wednesday and we endeavoured to try to get Thursday and Friday's hearing brought forward to Monday, but that has not been possible. So we will now adjourn until Thursday morning when we will proceed with the application of Mr Moringer and hopefully we'll be able to start that by ten in the morning.

So we will then adjourn now to this venue to next Thursday at ten in the morning. Thank you very much.