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
conditions for a coup d'état and this is what it was Mr Chairman,
this was an attempt on their own version, and attempt at coup
d'état and may I add here that nobody articulated more practically
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
chaos which will create conditions for a coup d'état".
But now Mr Chairman, amnesty is provided in relation in
relation to coup d'état in paragraph E and by the usual argument
of that which included excludes other possibilities. It was only
amnesty to be given any person in the performance of a coup
d'état to take over the government of any former state or any
attempt thereto. So this was a coup d'état, it was not for the
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
