TRC Final Report

Volume 1

Chapter 7

Subsection 4

Brigadier Du Preez and Major General Van Rensburg: first application

26 The application was brought by Brigadier Du Preez and Major General Van Rensburg³ in the Cape of Good Hope Division of the Supreme Court.

Background to the case

27 The testimony in dispute involved the case of Mr Siphiwe Mthimkulu whose mother was scheduled to testify to the Commission about the death of her son.

28 Siphiwe Mthimkulu was a political activist in the Eastern Cape. He was detained on a number of occasions and subjected to severe forms of torture. He was shot in the arm and faced constant police harassment. In 1981, after his release from yet another arrest, his health deteriorated rapidly and he was diagnosed as having been poisoned with thallium. His body swelled, his hair fell out, he could not urinate and he was confined to a wheel chair. Despite the poisoning, he fought to recover and began slowly regaining his health. In 1982, he left his home for a check up at the Livingstone Hospital. He was never seen again.

29 On 30 April 1990, Captain Dirk Coetzee alleged that, after the poison had failed to kill Siphiwe Mthimkulu, he was killed by Brigadier Jan du Preez and Colonel Nick van Rensburg. This circumstance was reported in the press and was to be the subject of Ms Mthimkulu’s testimony.

30 Consequently, on 13 April 1996, the Commission sent notices to Brigadier Du Preez and Major General Van Rensburg (addressed to the Commissioner of the SAPS). The notices were issued in terms of section 30 of the Act and informed Brigadier Du Preez and Major General Van Rensburg that: “an unnamed witness would testify that they were involved in, or had knowledge about, the poisoning and disappearance of a person, also unnamed” in Port Elizabeth in 1981 or 1982. They were informed that the hearing would take place in East London between 15 - 18 April 1996. Because Commission representatives in East London were concerned that the witness would be in danger if her identity became known, the notices were cautiously and vaguely worded.

31 The respondents objected to the notices on the basis that they were “vague in the extreme”; that they were unable to investigate the allegations and would not be able to do so before the 15 April 1996. They also said that the procedure proposed by the Commission contravened section 24 of the Constitution of the Republic of South Africa Act, 200 of 1993 (the interim Constitution).

32 On the 15 April 1996, Brigadier Du Preez and Major General Van Rensburg launched an urgent interim application. The applicants sought to interdict the Commission from hearing evidence or permitting the presentation of evidence by any person before they had been given “proper, reasonable and timeous notice” of the Commission’s intention to receive evidence that would implicate them; and before they had been provided with “such relevant facts and information as might be reasonably necessary” to enable them to exercise and protect what were said to be their rights in terms of section 30 of the Act.

33 During the application hearing, the Commission conceded that “insufficient notice and insufficient particularity had been given to the applicants”. However, it reserved its position “that the applicants are not entitled to notice of the date of the proposed hearing” and that the Commission was “entitled to hold the hearings without prior notice or the prior furnishing of witness statements”. In effect, the applicants were seeking a prior right of rebuttal.

The decision of the court

34 On the 30 April 1996, Mr Justice King issued an order restraining the Commission from receiving or allowing evidence during its hearings “which would affect” the applicants. He ruled that the Commission had to give the applicants proper, reasonable and timeous notice of its intention to hear evidence presented by any person which might detrimentally implicate or prejudicially affect the applicants, and of the time and place of the proposed hearings.

35 He also ruled that the Commission had to furnish Brigadier Du Preez and Major General Van Rensburg with sufficient facts and information as they would reasonably need to identify the events, incidents and persons concerning which it was proposed to present evidence that might detrimentally implicate them. This would enable them properly to exercise their rights in terms of Section 30.

36 The Commission requested leave to appeal against Judge King’s decision.