ON RESUMPTION
DANIE LE ROUX: (sworn states)
EXAMINATION BY MR VISSER: Mr Le Roux, you apply for amnesty with regard to an illegal attempt to execute an abduction, for murder or any other offence which might emanate from the facts, as well as for the illegal crossing of the Swaziland border and for defeating the ends of justice?
MR LE ROUX: That is correct Chairperson.
MR VISSER: He is not one of the persons who fired, I just saw his face and I remembered he didn't shoot. I made a mistake. You have handed up an application which appears in Bundle 4, on page 808 and it runs up to 814, do you confirm the correctness of the contents thereof? May I just turn your attention to paragraphs 7(a) and (b), page 808. Were you a supporter of any political party during 1981?
MR LE ROUX: Not an official supporter, but I could vote.
MR VISSER: Do you want to say that you were a police officer and not a member of the party?
MR LE ROUX: That is correct.
MR VISSER: Did you support any political party?
MR LE ROUX: The National Party, Chairperson.
MR VISSER: And then 7(a) must then read National Party and 7(b) supporter?
MR LE ROUX: That is correct, Chairperson.
MR VISSER: You have also studied Exhibit A, this is the General Background document, is that correct?
MR LE ROUX: That is correct, Chairperson.
MR VISSER: Did you study it carefully?
MR LE ROUX: Indeed Chairperson.
MR VISSER: Is there anything in there that is not applicable to you?
MR LE ROUX: It is applicable to me but I was not in Botswana or Lesotho.
MR VISSER: So you cannot comment on that and with regard to the rest of the document you asked that it be incorporated into your evidence?
MR LE ROUX: Affirmative Chairperson.
MR VISSER: If I understand correctly you were given an instruction on the 8th December and now we know it's the 8th December 1981, to depart to the Swaziland border at Oshoek and with your arrival there did you receive any information there?
MR LE ROUX: Captain Strydom met us there, he informed us and told us that a vehicle with two high-profile terrorists would arrive at a specific point and we had to attempt to arrest them and if not, if a shooting would ensue, then we had to make sure that we kill them.
MR VISSER: Was the vehicle described to you?
MR LE ROUX: Yes the vehicle was described to us.
MR VISSER: And do you have a recollection as to what the description of the vehicle was?
MR LE ROUX: According to me it was a light blue Golf.
MR VISSER: You evidence in that regard is the same as Mr Steenberg?
MR LE ROUX: Yes.
MR VISSER: Did you cross the border?
MR LE ROUX: Affirmative, we did cross the border.
MR VISSER: And did you arrive at the point which was identified by Mr Strydom to you?
MR LE ROUX: That's affirmative, Chairperson.
MR VISSER: And what did you do there?
MR LE ROUX: We deployed ourselves there and the vehicle which was described to us arrived there, it came to a stop too far from us and it departed again after it stood there for a while. And then General Strydom, then Captain Strydom, told us to return and we went across the border back to Pretoria.
MR VISSER: When the vehicle arrived there if you wanted to you could have killed the occupants there?
MR LE ROUX: That is affirmative Chairperson.
MR VISSER: On your way to Pretoria you were stopped and you were told to return?
MR LE ROUX: That is correct.
MR VISSER: And did you cross back over the border?
MR LE ROUX: Yes Chairperson, we redeployed ourselves with some adaptations. We wanted to cover a larger area as to when the vehicle would stop that we could be able to see it. The vehicle arrived, it stopped, it killed the headlights, we started moving closer. I specifically was behind a wire fence and I was climbing through the fence. I heard some exclamation, I heard a weapon being cocked and the team to the right of mine, where Captain Strydom was, I heard some shooting from them.
MR VISSER: In relation to where the vehicle stopped the second time, where were you positioned?
MR LE ROUX: I was to the rear left of the vehicle.
MR VISSER: You were left to the rear of the vehicle?
MR LE ROUX: That is correct, Chairperson.
MR VISSER: Did you open fire yourself?
MR LE ROUX: No I did not.
MR VISSER: Why not?
MR LE ROUX: At that stage I was climbing through the fence when the incident happened and my angle was too diagonal to the vehicle and only the persons who were closest to the vehicle would shoot.
MR VISSER: You have heard the evidence of the other witnesses who have given evidence with regard to this incident?
MR LE ROUX: That is affirmative.
MR VISSER: And do you agree?
MR LE ROUX: I do.
MR VISSER: Will you please grant me a moment Chairperson?
CHAIRPERSON: What are you looking for?
MR VISSER: What I wanted to ask you was that you were all armed with Eastern Bloc weaponry, is that correct?
MR LE ROUX: That is correct, Chairperson.
MR VISSER: Can you recall today what you were armed with on that day?
MR LE ROUX: I had a PG7, Chairperson.
MR VISSER: Do you know Captain Gert Visser?
MR LE ROUX: I saw him there for the first time.
MR VISSER: At both times he accompanied you across the border?
MR LE ROUX: That is correct.
MR VISSER: And did I ask you whether you recall who all the members who were involved?
MR LE ROUX: No you have not, Chairperson.
MR VISSER: Can you tell us who were all there?
MR LE ROUX: As far as I can recall it was myself, Rudolf Strydom, then Captain Strydom, Moolman and if I recall correctly he was a warrant officer and Mr Dercksen, I think he was a sergeant then, Mr Hope was a constable, Mr Prinsloo if I remember correctly was a constable, Mr Steenberg if I recall correctly was a sergeant.
MR VISSER: How did you justify your action that evening, you acted on an order, we realise that but how did you regard it, why was it necessary to act in such a manner?
MR LE ROUX: Chairperson at that stage according to me we were involved in a war, we acted to protect people, meaning our country as well as the police force.
MR VISSER: And the government?
MR LE ROUX: Definitely.
MR VISSER: Thank you Chairperson.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Thank you Mr Visser. Mrs van der Walt?
MS VAN DER WALT: No questions Chairperson.
CHAIRPERSON: Ms Thabethe?
CROSS-EXAMINATION BY MS THABETHE: Just one Mr Chair.
What happened after the attack?
MR LE ROUX: If I recall what directly happened after the attack, when I came out of the bush which I was behind, behind the fence and the vehicle was diagonally to the right of me, I saw the petrol coming out where the petrol tank was and it spread around the vehicle as petrol does and immediately afterwards I received an instruction from Captain Steyn to withdraw and we withdrew.
MS THABETHE: Thank you Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you.
What is a PG7?
MR LE ROUX: It is a rocket launcher.
CHAIRPERSON: Is that what you had, and what else?
MR LE ROUX: That was all.
CHAIRPERSON: You did not even have a hand weapon?
MR LE ROUX: No Chairperson.
CHAIRPERSON: What would you use this for?
MR LE ROUX: It was action in a foreign country and it could have been an ambush and to protect us.
CHAIRPERSON: This was the rocket launcher?
MR LE ROUX: That is correct, Chairperson.
CHAIRPERSON: Why did you move closer to the vehicle?
MR LE ROUX: Directly after the weapon ...(intervention)
CHAIRPERSON: Excuse me, I did not make myself clear. Before the shooting why did you move closer?
MR LE ROUX: I could not see, I could not see properly what was happening there and I moved closer to place myself in a better position and to be supportive in case an arrest could be executed.
CHAIRPERSON: Was the intention to protect the group with the rocket launcher?
MR LE ROUX: Amongst others and then I wanted to participate in the arrest.
CHAIRPERSON: If it was necessary?
MR LE ROUX: That is correct.
CHAIRPERSON: Very well. Mr Le Roux, thank you.
Mr Visser any re-examination?
MR VISSER: None Chairperson.
CHAIRPERSON: Thank you Mr Le Roux, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Mr Prinsloo and Mrs van der Walt, was this the only further matter before us?
MR PRINSLOO: That is correct.
MS VAN DER WALT: That is correct, Chairperson.
INTERPRETER: The speaker's microphone is not on.
CHAIRPERSON: Do you have any idea as to how long it will take you to address us?
MS VAN DER WALT: I won't be long because you already have heard the complete argument of Mr Visser in the first instance. The only thing which I will address you on is the requirements of the Acts and this will be brief.
MR VISSER: And Mr Prinsloo?
MR PRINSLOO: I will also inform you briefly as to the facts with regard to our client.
CHAIRPERSON: I want to meet you half way. Mr Visser is before us for one or two other matters so it is not necessary, there won't be any time, but he will be here on Monday and at that stage I want to consider whether if you want to return if we could not continue Mr Visser's argument.
MR PRINSLOO: There may be some aspects which is applicable to us in Mr Visser's argument and it would be more applicable if Mr Visser argues first and then we also argue at the same time because if Mr Visser will tell you but I would assume that it was the same problem, I would think it was applicable if all of us are present.
CHAIRPERSON: Mr Visser do you know how long you will be?
MR VISSER: Chairperson, I thought that you would tell me that you've heard me so many times that you do not hear me at all. I cannot see what I can add any more as to what would be new to you. I don't think I will be very long. I just have to add, Chairperson, that we've reached a point where there is no point to go back to Pretoria in the hope that we would reach something there.
CHAIRPERSON: That's on the cards, I think we can just continue at a leisurely pace. Yes, if all of you are not going to be very long then there is a temptation to complete the matter before I adjourn now. I would have been surprised if you had a very long argument.
MR VISSER: But I think my temptation is to rest a but now. CHAIRPERSON: Yes, I know, yes. Maybe we should and then we can take the argument. Very well.
COMMITTEE ADJOURNS
ON RESUMPTION
Yes Mr Visser, have you got any submissions?
MR VISSER IN ARGUMENT: Yes Chairperson. Are we excused in Pretoria until tomorrow?
CHAIRPERSON: ...(inaudible)
MR VISSER: Then I had better upset this panel.
Chairperson, the amnesty application before you now is really in my respectful submission a reasonably straightforward one. The planning here was to be able to get at George, MK George. The planning started off with a straightforward arrest, it later and we don't know when changed when it became clear that MK George was not prepared to come into the R.S.A. and it then became what is referred to as a "grypaksie" an abduction, a man stealing. The security branch members who testified before you made it clear that they were desperate to get hold of MK George, alive as it were, in order to elicit from him information particularly concerning the group which was coming into the country and which they had been alerted to by Johannes Mnisi. Later at some stage and again it is unclear when it happened, it became clear that two people would be involved. We know that this happened before they went in because Strydom explained to you and some of the applicants whom you heard this morning that their briefing was already before they went in that they were going to arrest two people and not one. Chairperson...(intervention)
CHAIRPERSON: Mr Visser, sorry, just remind us, is it Strydom that set that out?
MR VISSER: I didn't hear the question?
CHAIRPERSON: Is it Strydom that said that?
MR VISSER: Yes I believe Strydom gave that evidence and the witnesses this morning all gave the same evidence to say that they were going to arrest two people in Swaziland. So whenever that decision was made we know that it was before Strydom and the group of members of the special task force went into Swaziland.
CHAIRPERSON: They identified the - we know George, did they identify the second one?
MR VISSER: Chairperson, it's a long time ago and they clearly can't remember and to the best of their ability they couldn't reconstruct whether they knew beforehand whether the names were mentioned and if so whether MK Brown was mentioned due to the passage of time they can't remember that detail but as far as their identities are concerned we draw your attention to the fact that when they went in they knew that it was two people that they were going to arrest, a description of a car was given, two people before, two applicants before you could remember something about the car, it being a light blue Golf motor car and that was Steenberg and Le Roux. The rest couldn't remember that detail but what they do say is that they were taken to a location, to a particular spot which had been previously identified and which could only by necessary inference have been the spot arranged between Johannes Mnisi and MK George. Nothing else makes any sense. That already would have been sufficient, Chairperson, but on top of that the motor car stopped in the wrong place the first time and the same car came back. That would then cement the inference that it was them.
You also heard evidence here this morning that the road is an ordinary farm road as it were and it was clearly a smuggling route or an infiltration route and it's not a road much frequented by motor cars and lastly, Chairperson, you heard evidence that from Captain Gert Visser and others that later it was established through intelligence reports that the two people who had died there were in fact MK Brown and MK George.
CHAIRPERSON: That is the thing, Mr Visser, is that the only source that we have in regard to the identity of these people who eventually died in this?
MR VISSER: Apart from what Johannes Mnisi obviously told the security branch in regard to MK George. We know with fair certainty that MK George must have been one of the two. Chairperson, it's a pity that in this case and I don't say this by way of criticism but by way of fact that enquiries were not perhaps made by the TRC investigating unit.
MS THABETHE: Sorry Mr Chair, I don't know whether I can correct my learned friend, enquiries were made even to Mr Mnisi himself.
MR VISSER: Well, no enquiries that we are aware of were made by the investigation unit with the offices of the ANC to discover the real names of these two people, we don't know whether the real names would be available to them. What we have done is we have worked through the various written submissions which were made by the ANC to the Human Rights Violations Committee, Chairperson. We have them here with us and there is no reference to an incident on the 8th December, there is no reference anywhere to be found which we could find last night to an MK Brown or an MK George, not in the structural composition of the ANC, MK in Swaziland or Mozambique, nor under the lists of cadres who had been killed by the security forces in the ANC lists. In short, there is simply no reference at all to these two MK names.
CHAIRPERSON: Isn't that a bit strange if they had such high profiles in uMkhonto weSizwe?
MR VISSER: What can I tell you, Chairperson, we can only tell you what our information is. The applicants can only come and tell you that they ask for amnesty for an incident which involved two people. To the best of their knowledge they say that these are the two people but they may be wrong. In fact General Wandrach keeps on saying to me, we know, we don't know whether these were the people, we just don't know but what is common cause is that, it seems, is that two people were in fact killed in that car that night.
CHAIRPERSON: What else was there, was there any newspaper articles in this matter? I can't remember now.
MR VISSER: Yes there were, Chairperson.
CHAIRPERSON: What does that say?
MR VISSER: And what I referred you to, the Oggendblad of the 9th December, it only refers to two "onbekende mense" unknown persons, unfortunately and it refers to a firearm that was found in the hands of one of them, clamped in the hands of one of them and other than that the newspaper articles only serve to confuse matters because they have their own theory about what happened there and it's totally different from what we know now had happened there.
CHAIRPERSON: At least it confirms that there were two people.
MR VISSER: There were two people, it's for that reason only and for the date that I mentioned that newspaper. There are two more that we have, two other newspaper clippings which do exactly the same, there's no identification so Chairperson, in the present circumstances we did as best we can in order to attempt from our side to establish who they were but we couldn't.
CHAIRPERSON: Yes.
ADV DE JAGER: Mr Visser, Mnisi applied for amnesty as far as you know. You don't know whether he's been approached in order to get further information?
MR VISSER: Yes, I may mention to you Chairperson you are absolutely correct, he did, he applied for some, if I remember correctly, seven incidents for amnesty. My attorney has just reminded me that Mr Trengove was instructed by Mr Eric van den Berg's firm who was here earlier this morning and it didn't occur to me then and certainly occurs to me now that one might ask Mr van den Berg to get in contact with his client, Johannes Mnisi and try to discover from him whether he has any information which he may well have because we know the history of Johannes Mnisi. After his arrest he later became an Askari and he then absconded and fled again through Swaziland, I believe it was - I'm not sure about that but he fled and rejoined MK so it may be, it may be that he might know something. We'll make enquiries. Thank you for the suggestion, Chairperson.
Chairperson, all the applicants before you acted under orders from headquarters and it's clear that those orders concerned an abduction and if not possible the elimination. There can be no doubt about that on the evidence given by all the applicants before you. None of them understood the direction any different from that. That action on the evidence before you again was directed against military personnel of MK of the ANC. There's no suggestion of any ill will, spite or personal vengeance and we don't even address that, Chairperson, because there is nothing at all to point in that direction.
They were all members, Chairperson, of the security forces and all of them committed their act, omission or offence in the words of Section 22(b) within the course and scope of their duties and in the scope of their express or implied authority. Here the authority was, as I've already stated, that they received direct orders from head office and of course down the line they received orders from their immediate commanding officers. They all associated themselves with the fact that they were going to abduct people and they all foresaw and realised the possibility of death or serious injury and they associated themselves therewith. In that sense, Chairperson, with regard to the Act, we refer you to Section 22(g), we say that a person who merely associated himself is already a person who has locus standi to apply for amnesty in terms of the provisions of the Act. Insofar as 22 sub (g) specifically refers to persons referred to in sub-sections a, b, c, d, e and f of Section 20 sub-section 2.
Chairperson, the task team members, all of them, including Captain Visser of course, contravened border control regulations and or statutory provisions and all of them, Chairperson, are guilty of defeating the ends of justice insofar as none of them made any disclosure about either their own association or that of others after the fact.
Chairperson, on the evidence, as one might expect there are differences, sometimes of fact, sometimes of opinion, as one would expect after such a long passage of time but it is my submission and I believe it's a correct submission to say that there is nothing material, no material discrepancy in the evidence of all the witnesses whom you have heard. Insofar as the incident itself is concerned, and insofar as Captain Visser's evidence may have suggested that no serious attempt was made at abducting or arresting as they said, arresting these two people, we want to suggest, with respect, the following. First of all he was apparently in a spot where he could not see clearly, he says he couldn't see the people even, he only heard noises although he did say that in the dim light from the border post a kilometre away he could see that there were two people in the car but the reality of the situation is this that first of all the orders were to arrest the motivation for that order has been explained to you and it's a feasible one, they wanted information from these people particularly from MK George. So that all other things being equal already there would have been some attempt. The other fact is and this cannot by gainsaid, is that if they had decided not to attempt any arrests, they would simply have done what they had to do on the first occasion when the car went past them and as Mr le Roux said, "ons kon dit toe maklik gedoen het" - we could have done it then very easily. Quite clearly the intention remained up to the last moment when the firearm was cocked that they were going to arrest. Now under the circumstances of that evening and one must be careful here not to adopt an armchair approach. One will probably have difficulty in placing yourself in the same position and see the situation through the eyes of the operators of that evening during that night, Chairperson. They tried to explain to you what they could remember where they were, who were next to them, what each of them did but what is clear is that the moment they started moving in, even before some of them had started moving forward, the passengers of the car must have noticed something because there was some commotion and a voice, as I understand the evidence, excitedly spoke out in a loud tone and then they heard the cock of a firearm. Now as the operatives told you this morning, once that happens, there's no question of an arrest any longer, then it's a danger to you, it's a question of how do you approach the matter and they immediately fired.
ADV DE JAGER: Mr Visser, that's the one thing I want to ask you about. The moment they thought that their own lives are threatened, did they act to eliminate or did they act in self-defence.
MR VISSER: Well Chairperson, Hope gave you the right answer, I'm sorry, gave you the correct answer in my submission. No one would be able to deny that the thought of preservation never entered the minds of those operatives on the ground but one's got to look at it from a point of view of what they were ordered to go and do. The planning, the information that was given and the whole execution of the plan according to all of them was arrest, if that cannot happen, eliminate and they acted under those orders. The fact that self-preservation became foremost or even a thought in their minds makes no difference to their criminal liability in those circumstances Chairperson. They went to arrest and if that couldn't be accomplished, to eliminate.
ADV DE JAGER: So if your own motive would be on that crucial moment to act in self-defence and let's assume the circumstances were such that life was in fact threatened, would it then be an offence?
MR VISSER: No, Chairperson of course that would again then depend on the circumstances, you know and I know that for 8 to 12 people if to take the extreme example, if all 8 to 12 task member teams fired on a vehicle where it turns out objectively that there was only one pistol in the vehicle, one will say well, that could never have been self-defence, that exceeded the bounds of self-defence by far and a court of law will not easily be convinced otherwise. So there is that fact, yes but the point I'm making is that if there is an element of self-defence while you are executing your order, it could not make any difference to the grand scheme of things because if when a soldier goes to war one has to believe that his first thought is always going to be about himself, doesn't matter what his general tells him to do and he might do what his general tells him to do but certainly he will always have, it's human, he will have a thought of self-protection in his mind. In this particular case Hope was very honest with you, he said "yes I feared for my life, of course" and Strydom gave the same evidence. He said that he had to protect the lives of his members. So yes, it was an aspect. In all dangerous situations it would be surprising to find that it was not an element but the purpose of the plan, the execution of the plan was precisely that they wanted to arrest or eliminate, Chairperson, and that is what happened and not by a long stretch of the imagination can it be said that these people acted merely in self-defence and that is my submission on that score.
So Chairperson, to wrap it up we submit that these applicants have all complied with the provisions of the Act. All of them except Mr Hope told you that they were also supporters of the National Party, they would fall therefore under Section 22(a), 22(b), 22(f) and 22(g). They all acted under orders, Chairperson, with respect and we submit that they qualify for amnesty in this case.
Could you bear with me for a moment? Chairperson, we as far as other matters, more technical matters, are concerned, we refer you to the previous argument and it is also applicable here. Chairperson, in order not to grant amnesty the situation in the present case is that you would have to decline to accept the evidence of all the witnesses in the sense that all of them on the material aspects of the matter gave identical evidence before you. We would then ...(intervention)
CHAIRPERSON: Or on the finding that they haven't established who was killed?
MR VISSER: Well, Chairperson, does the Act require that an applicant for amnesty must show what the identity was of the person who was killed? We submit not. The Act speaks merely of a member or supporter of a liberation movement from the point of view of the security forces. There is no indication that the Act expects you to identify. For example we had the same situation in the Church Street bomb where the operatives and the commanders who gave the orders in regard to the Church Street bomb couldn't identify one single one of those persons. They were identified in another way. Here we have no other way in which they could be identified but that's not a requirement of the Act, Chairperson, with respect.
CHAIRPERSON: Yes not in such a focused form. Of course you have to at least show that the victims were on the other side, opposite side of the conflict from where you were. I think all the applicants had made it clear that they were acting against these highly trained MK members thought to be George and MK Brown and that was really what they were ordered to do and that is what the order that they were executing but of course if we are not satisfied as to who these people were that got killed, then of course your clients haven't shown that they have killed somebody on the other side of the conflict.
MR VISSER: Well, Chairperson, that makes the test a very hard one to pass. First of all I may submit to you that there is of course no onus of proof before you. We know that on the authorities, I thought that had been accepted. You have to be satisfied not even on a balance of probabilities that in the words of his Lordship, Justice Price, I've forgotten the case name, it's something less than that because of the fact that this is a commission of enquiry. You've got to be satisfied about whether they did or did not act against someone on the other side as you put it on something less than a balance of probabilities but we submit that on the probabilities, there's nothing to show that they are wrong, there is nothing before you to show that they are wrong. You can speculate but there's nothing at all by way of evidence or arising on the probabilities to show that it was not MK Brown and MK George who were killed there. Chairperson, we have seen often in the past applications brought for example death of an unknown activist near Mamelodi, we had problems with identification in the Nietverdiendt 10 to such an extent that we were certainly, on our side, seriously in doubt as to whether the identities which had been proposed by family members of persons who had lost some of their family members, whether they were really the correct ones, we've had that before.
CHAIRPERSON: No, I'm with you on that submission. It's not necessary for your clients to identify the victims in the sense of giving their names and their addresses and I.D. numbers. All that your clients need to try and satisfy us on, bearing in mind your submission on this question, is that these people were part of the other side. If I say identify then I mean in that sense, not necessarily as being George or Brown.
MR VISSER: No, that is with respect stating the position correctly Chairperson but if you bear in mind ...(intervention)
ADV DE JAGER: I want to put to you this proposition, if I have the intention, the motive of acting against the opposition and I'm shooting a Russian soldier attending a church, he's not on the other side but my intention was to kill somebody on the other side so isn't that why the word associated is used? My intention is this, a political objective and this act, the act of killing, is associated with that objective.
MR VISSER: Chairperson, I was just coming to that. I was just going to give you the example of the St James' Church massacre. There, the way I understood that amnesty application, there was absolutely no attempt even made to ...(intervention)
CHAIRPERSON: Are you submitting that it was correctly decided, that particular one that you are referring to?
MR VISSER: I'm saying, Chairperson, that we're dealing here with the process of amnesty, we're dealing here with an Amnesty Committee who has made certain decisions and I'm saying that from the point of view of fair administrative action and I've made this submission before, there has got to be evenhandedness.
CHAIRPERSON: But if it's wrong? If it's wrong, that's why I ask you ...(intervention)
MR VISSER: Well it's right until it's proved to be wrong.
CHAIRPERSON: Are you accepting as your submission from the perspective of somebody excepting that that was correctly decided?
MR VISSER: I have to accept it because it is a standing decision until it's been set aside, that is a decision which has to be accepted to be accepted as incorrect.
CHAIRPERSON: And are we in the same position that you are?
MR VISSER: In my submission you are, yes.
CHAIRPERSON: We have to accept that that is correct?
MR VISSER: In my submission you have to, yes, Chairperson.
Unless you're telling me that ...(intervention)
CHAIRPERSON: Even if I understand the principle of stare decisis I mean if something is clearly wrong, no subsequent tribunal is bound by that ...(intervention)
MR VISSER: That's also not correct. A single judge is bound by a wrong decision of a full bench, Chairperson, and here you have a full bench, you have the original Amnesty Committee.
CHAIRPERSON: Well that doesn't apply in this particular instance, I mean ...(intervention)
MR VISSER: No, no, but you mentioned stare decisis. I said it doesn't apply.
CHAIRPERSON: Yes, no, no, I'm just talking about whether you are bound by a wrong decision?
MR VISSER: Yes, I'm bound by those decisions, I believe yes, Chairperson and my clients are bound until they're set aside.
CHAIRPERSON: But I've got difficulty to understand that. We are bound by a wrong decision ...(inaudible) assume it is wrong are we bound by it?
MR VISSER: Yes Chairperson, well of course one's got to follow your own convictions and execute your duties as you see them and it's not for me to tell you how to do that. The point which this is really about is the point that Commissioner de Jager makes to me. There are many, many instances where the wrong persons had been attacked and even where innocent people had been attacked. This is what happened in our past.
CHAIRPERSON: Absolutely.
MR VISSER: That is what the amnesty process is here to take care of.
CHAIRPERSON: But I've got difficulty to understand that the question of the position of the victims is totally irrelevant, it doesn't matter whether that victim is on either side of the conflict or no side of the conflict so long as you have got a certain subjective belief, that's it ...(indistinct) you know, that's the submission that I'm addressing.
MR VISSER: I'm not saying only the subjective idea or the subjective belief, Chairperson, I'm saying that it's an objective test, it's got to be associated with the Act and it's an objective question. If a man goes out, let's put it bluntly, to kill a soldier, his opposite number on the other side and he kills something else, it's an objective question of fact whether he acted - whether there was a political objective associated with that act. The fact that an innocent person there gets killed may or may not be relevant. It may not be relevant in normal circumstances but it will clearly be relevant. For example, if subjectively the man knew it to be an innocent bystander, it could never be the intention in any war to kill innocent bystanders rather than kill the soldiers on the other side. So the purpose has to be associated with, as our Act says, a political objective. But certainly circumstances within the knowledge of the doer may change the view of that and in that regard you may say yes, well then the St James' massacre must be wrong. We could pull up many examples where no decisions had been given yet but a land mine for example, how could you then ever get amnesty for a land mine which blew up a careful of people who came back from church who had nothing to do with anything? No clear political objective emanates from that, one would think. But then you hear the ANC saying no, but hang on, we wanted to infiltrate over the borders to come and fight the liberation struggle in South Africa, the farmers were all armed, they all had farms, they all worked with the South African Defence Force, that's why they became our "legitimate" targets. So, Chairperson and really in that sense, the Act was very cleverly drawn, it says you don't have to go into all of that, you must just find whether or not, objectively speaking, the act was associated with a political objective and that is my submission to you, Chairperson, but again and I do repeat it, the subjective element can make a difference. The Act makes provision for it. For example, where ill will, spite and personal motive comes into it and one can take it further. When in terms of Section 20 sub 3, sub (a), the motive of the person is specified to be taken into account so it's a mix of objective and subjective standards but where the applicants tell you they went out to go and arrest or eliminate whichever they could do to two MK people, that is then an act associated with a political objective, clearly Chairperson, unless there is something that stands out and you cannot ignore to say well now objectively I say it couldn't have been an act associated with a political objective. So yes, Chairperson, the correct way to look at it is as Commissioner de Jager has put to me but my submission is you don't even reach that point on the evidence before you unless you're not prepared to accept the evidence but you have to have some reason surely in order to reject all of the evidence before you and the evidence before you, from all the witnesses is that they were MK people, they were supporters of the ANC, they were commanders of MK, they were going to bring in or George was going to bring in a group of people to cause havoc on the electric power lines.
Chairperson, that must be ...(intervention)
CHAIRPERSON: Are you submitting that's sufficient in this case in spite of whoever was in that car, it's sufficient that your clients believed that it was George and some other highly trained MK operative and I think whether it now turns out to be a woman or a child or whatever it might be in the car, it's neither here nor there?
MR VISSER: That's my submission.
CHAIRPERSON: We've got to give you amnesty?
MR VISSER: Yes that's my submission, Chairperson, yes that is my submission.
CHAIRPERSON: Yes.
MR VISSER: And I may repeat ...(intervention)
ADV DE JAGER: That could only be the case if their belief is a reasonable belief?
MR VISSER: Sorry, I was listening in two places, Chairperson?
ADV DE JAGER: If we would conclude that that is a reasonable belief that they thought it's MK people in the car?
MR VISSER: Again, Chairperson, and I must stress this, it's both an objective and a subjective test but what I'm saying is that on the evidence all of these people told you what they thought the target was going to be unless you can reject on good grounds that evidence, there is no subjective element that comes into it that points in the other direction because the subjective element would have to come from them, that is what cross-examination is for and that is those were the questions which the members of the Committee asked these people, they investigated all the aspects of the matter including this issue of what who they thought they were going to attack etc, that has been canvassed and what we say, Chairperson, is that on the evidence before you objectively, the acts must have been associated with a political objective.
To make it - and I don't want to dwell too long on it, to make it absolutely clear, if these applicants had gone in and when the task force members saw the car and it was broad daylight and they saw it was my wife and my children on their way to school, they would not have been able to come and appear before you today and say that their act was associated with a political objective? Clearly that's got to make a difference somewhere or other and perhaps your points are well taken, what about the St James' Church massacre? That may be in that category, that may be in that category.
CHAIRPERSON: Well the fact that say the chap who didn't see your wife and children, he was firing, he would be covered, he didn't see who was in the car? He thought that it was terrorists?
MR VISSER: He would be covered yes but the subjective element is if he knew and if there is evidence to show that he must have known or he should have known because the first three people that the car went by saw these people and he's got no explanation why he didn't look and see and just started firing. That may well be a situation where he will not be able to be granted amnesty, yes of course.
CHAIRPERSON: And in this case for example if your client had taken Mnisi with them to identify the car and Mnisi says to them, well that is it, that's the car and they shoot and it turns out to be other people?
MR VISSER: That's a typical ...(intervention)
CHAIRPERSON: Wouldn't that be a stronger case?
MR VISSER: Well, I'm not going to say stronger, weaker but they would be covered, they could be covered because they would have believed subjectively that what they were hitting was the enemy and in terms of the plan and the orders which they had which they were executing it was something which was associated with a political objective. Yes they would be covered.
CHAIRPERSON: Yes, yes, no I understand that situation.
MR VISSER: We had the situation, Chairperson, in another application, just while you mention it. I was just thinking, where a house was hit by some members of the security forces and it was an Indian gentleman and his wife who assisted ANC fugitives coming back into the country and in that attack a child was killed. A child was killed. Well we don't have - that application hasn't been brought yet but there is a typical example. Now what happens about the child? In fact it was an application and there is a decision. I just recalled Chairperson that they did not give amnesty for the child because they knew the child was going to be in the house and I think that's the point you're trying to put to me. Yes, one reaches a point where you say this act could not possibly have been associated with a political objective, I therefore refuse your amnesty but merely to say because we can't identify the people, therefore we must draw the inference that they might not have been, is not good enough.
CHAIRPERSON: No, no, I've got that submission.
MR VISSER: Thank you Chairperson. Chairman, I have nothing further to add unless you want to hear me on anything, my attorney feels I should work some more, he's just passed me a note. Oh yes, he says the obvious thing that I think have already at the initial stages submitted this, it was the car that was identified and it did come back twice. I think I've made this submission, Chairperson, so in this case there is really little doubt that the persons that we acted against were on the other side and if all of the witnesses except one told you that they - no, except two, told you that they heard the cocking of a firearm and if at all newspaper reports can be believed, they also refer to a firearm in a car. So it wasn't my wife and my child driving on the way to church during broad daylight.
CHAIRPERSON: ...(inaudible) could have been armed.
MR VISSER: ...(inaudible) Mr Chairperson, I ask you to grant amnesty as we'd prayed for and as I suggested to you in the argument for the applicants for who we appear. Thank you.
NO FURTHER ARGUMENT BY MR VISSER
MR PRINSLOO IN ARGUMENT: Chairperson, I'm not going to repeat what Mr Visser has told you, the facts of the matter are that according to the evidence of Mr Gert Visser should not be denied. It is clear from his evidence that Mr Mnisi who was a detainee, his trustworthiness was tested. How did they do this? This is another aspect which has escaped me how did this happen. Some of them said that he promised that he would co-operate with them. He was arrested approximately two weeks before this incident. He was detained in terms of Section 29 and it would seem that it was the first incident where he co-operated with them. How was his trustworthiness tested, what was his evidence? Chairperson, he had a chart in his possession, this chart indicated the physical places and the places which he indicated was indeed what was on the map and besides that he mentioned which the particular parties were and by means of telephone calls to which they listened in to, not just one telephone call, several telephone calls that Mnisi made in Swaziland to George and where they confirmed that he was indeed speaking to George. There it was determined that George would be met in Swaziland and with respect, Chairperson, there is no evidence to the contrary and there is no suggestion from anybody else that it did not happen and this is the pattern which serves before this Honourable Committee that what had happened there, there is thus no doubt that Mnisi spoke to George. That there was indeed an action where discussion would take place with members of MK and besides that it is well known that Rashied was one of the operatives and Rashied, it is known to the Committee in applications in the Church Street bomb, was a commander and if any trouble was taken that Rashied would deny it. It would have been said that we have heard by means of an investigation which the TRC investigative team would have made and this application is in the possession of the Committee for a long time. There is no such suggestion.
CHAIRPERSON: Do you mean that the allegation of Mr Mnisi?
MR PRINSLOO: That is the allegation of Mnisi as it was conveyed to Mr Gert Visser and Mr Gert Visser as well as Mr Nel, both of them believed Mnisi in this instance.
CHAIRPERSON: But how did that happen, how is Mr Rashied involved in this?
MR PRINSLOO: At that stage, according to the information conveyed by Mr Mnisi, Mr Rashied was operational and involved in Swaziland where this operation would be launched from.
CHAIRPERSON: I understand that, I understand the factual background, I want to establish how Rashied would be involved in this application? Do you say that he can deny this or the fact that he does not deny it before us? Does this concur with the allegations made by Mnisi? I don't understand how Mnisi is involved here.
MR PRINSLOO: With respect, Mr Chairperson, the point I'm trying to make is that if there was doubt about the conviction of these procedures then Mr Rashied is not seen by me or by the Committee to be regarded as an involved party, he is not incriminated in the sense but his evidence is clear that Rashied was one of the operatives from the other side along with George and Brown. That is the point I'm making and I would just like to add that Rashied - I'm not adding that Rashied is involved here.
CHAIRPERSON: Excuse me, are you saying that the fact that there is no contradiction, does this support the trustworthiness of Mr Mnisi? I don't know if I understand you.
MR PRINSLOO: What I'm saying, with respect Mr Chairperson, is the fact that the evidence from the applicants is not contradicted and there is no other evidence and then the Committee must accept their evidence. The evidence is concurred with during the whole procedure and Mr Nel's evidence or his initial evidence is that there is no argument as to his evidence and his evidence supports the evidence of Mr Visser. This has to be taken into consideration that Mr Mnisi was arrested for quite some time or two or three weeks and he is not the person who was arrested from the street and as we all know Section 29, in terms of Section 29 he is interrogated thoroughly and this person co-operated, that is the evidence of Mr Gert Visser. He never doubted, with respect Chairperson, the credibility of Mr Mnisi and the telephone calls supported this, Chairperson, that there was a telephone call to Mr George and was listened in by the other parties, Visser and Nel and with respect, Chairperson, that this was a real action which consisted of the struggle that there was. The MK ANC members on the one side and the security branch on the other side and their action is regulated and Brigadier Schalk Visser is also involved here, he was also was also tasked with the initial arrest of Mr Mnisi and that gives the Honourable Committee a clear picture where there is no doubt with regard to the circumstances. There should be no doubt, with respect Chairperson, that such an action was launched because of what Mnisi had submitted otherwise why would there be any action, this would be very stupid and the probabilities show that such an action was indeed launched for the reasons as supplied by the applicants and why some of the members were involved and with respect, as submitted by Mr Visser in his argument, here we deal with a matter where it was determined whom the particular persons were. It is determined where these persons would stand, what type of vehicle there would be and what their action would be at some remote area where there was a little gravel road and there were two lines there, the same vehicle comes there, goes away and comes back and it fits in with the facts of Mnisi and then the Committee has to take into consideration that Mr Mnisi is in detention. One cannot take him into Swaziland but then he is so credible, they believe in his credibility that he is co-operating so well with them.
CHAIRPERSON: Why can they not take him with them?
MR PRINSLOO: With respect, Chairperson, the Committee has to live themselves into that scene there. Here the members of the task force go in, they take Mnisi with them, does he have to get caught up in a crossfire, is he to be shot? If those people saw him what would happen if he got away? There could be many considerations. Why would it be necessary under the circumstances to continue while you can see with your eyes that there's Mnisi before me, there is a vehicle, there are two persons in the vehicle, they turn off the lights and with respect, there can be no doubt and it is not necessary, Chairperson, to run the risk to take a detainee into another country illegally and to expose him to several possibilities which might exist.
CHAIRPERSON: But they don't know who they killed? Why could Mnisi not be used? I've heard the term pointer, the police uses somebody as a pointer, somebody who could point out people so that they would know whom they were to kill?
We don't know who died in this car.
MR PRINSLOO: With respect, Chairperson, under these circumstances one has to have regard for what the specific circumstances were which dictated that evening. It is possible if someone who sits in a building and he says there's somebody walking down the street and he says that's an ANC member but with respect, we cannot expect that Mnisi could be taken in the dark there, that he has to go and see who is in the vehicle. How could he see that it was indeed those persons from some distance? But the facts that he gives and the discussions that he has and the facts that he gives to his handler which is conveyed to Mr Visser fits in perfectly and there could be no doubt, it could be the same, with respect Chairperson, that one has to deal with the matter where there's a murder case but there is nobody because the court finds in the appeal court, about three of that I can think of that the person who was murdered but the body is missing, there can be no doubt. Here the intelligence, after confirmation, confirmed that George and Brown were the two persons who were killed. George was never seen again, that is the evidence of Mr Visser but there is no reference to these persons to any of the ANC submissions that such high profile persons had existed. This is not strange, in how many cases did the ANC see an ambush where persons were led into an ambush, there are instances which are the exception where there could exist much propaganda in matters where there was man to man conflict then one could admit that that person died.
CHAIRPERSON: But why now after the time, we are after 1994, submissions have been made to the TRC. Why would they want to hide it now?
MR PRINSLOO: To cover up any loss.
CHAIRPERSON: What is the purpose thereof? If such high profile commanders of MK had died in that operation one would expect that their names would appear on the record of the ANC?
MR PRINSLOO: Chairperson, at this stage this Committee does not know in what condition those bodies were who were in that car, were they burned completely? There's no evidence before this Committee on the other side which refers to some investigation which was done by the ANC to find out which people had disappeared and which had not disappeared, we do not know. The Swazis could have buried those people, with respect, and we know that in previous applications that the ANC operated underground in Swaziland, they did not operate openly, they were arrested by the Swazis and deported. It appears in many criminal matters, we don't know what investigation there was. With respect, it could only be speculation and this Honourable Committee must have certainty as to the matter that was discussed here and the actions point to the fact that there is no doubt that the people in that car was George and Brown. This is what the parties believed and objectively speaking, with respect Honourable Chairperson, if one has regard for the facts and you measure those facts to the circumstances of the evidence, it has to be them and nobody else because if George afterwards existed, then under the circumstances there would have been information with regard to him but there are no such circumstances.
CHAIRPERSON: I don't know how it works but do they change their names? What is the combat name? I do not know what the - is it changed or do you keep that name forever?
MR PRINSLOO: As I in many cases where I acted for the State an MK name is given to a person and that MK name was the only name by which he was known.
CHAIRPERSON: So how would one know what is his proper name?
MR PRINSLOO: An MK name is the one with which he retains, you can see how far he goes back in the ANC's actions. As far as I can recall this was at least during the late '70s beginning '80s which went right through like a golden thread to his name, he only came and said this now, nobody in the security branch could find out who was Rashied except up till the moment when he came and exposed himself in his application.
Chairperson, to join up with the argument which was held before you an action is launched against a person and this is not what I admit but another person is killed under the circumstances in a specific matter where Honourable Judge Wilson sat on a panel and where Commissioner de Jager and Khampepe were also members of the panel, and in that case it regarded two members of the Boereweerstandbeweging who applied for amnesty and they planted a bomb on some instruction in a shop which belonged to the ANC community. They believed that all members who were members of the Moslem community were ANC supporters. This bomb was placed at a shop in Bronkhorstspruit. A policeman who investigated moved the container and this bomb would go off if the container was moved. This police officer was killed and no person in the Moslem community at that stage was in danger and amnesty was granted for those persons. It was Harmse and Vloorman in the application 03 ...(inaudible)
ADV DE JAGER: You mention that case but it is common cause that in the opinion of that Committee these persons had a political objective. If one has regard for the St James matter the evidence was that we wanted to render this country ungovernable, we want to force this government to change it's policy and the evidence was that if they were not successful with that explosion they would have continued, they would have even wanted to kill innocent people with the purpose to force the government to change it's policy. That was their motive. The method that they used to reach this goal has to be distinguished from what the real purpose or the real motive was but this is the political motive. The government must divorce itself from it's Apartheid policy and they used any manner, even if it was the killing of innocent people and I think these were the grounds where they were found that this was associated with a political objective?
MR PRINSLOO: That is correct, Honourable Chairperson, that in this instance here it was aimed against the opposite party who was the ANC.
ADV DE JAGER: Was that the police's policy?
MR PRINSLOO: With respect Honourable Chairperson, excuse me, we don't have evidence with all respect that innocent persons were killed. We can speculate that it was innocent people but there is no evidence before us where we can come to the conclusion that the persons were innocent or that they did not belong to a political party. We can only say that we cannot say definitely but because there is no evidence because we don't know who these people are if this is our point of departure, if it was not Brown and George then we don't know who it was and therefore we do not know whether they were innocent or not.
ADV DE JAGER: But may I just put it to you that you can submit to us that the General would have gone to this Swaziland border to kill two persons or to arrest a person or kill the person who had nothing to do with politics?
CHAIRPERSON: Excuse me Mr Prinsloo, my colleague has jumped in while I was asking you, would you please return to my question?
MR PRINSLOO: Would you please repeat the question or may I just answer your question?
CHAIRPERSON: Is there a policy of the police to kill innocent people?
MR PRINSLOO: With respect there is no such policy to kill innocent persons but with respect we will split hairs and it would be unfair if we say that the police would kill innocent persons but we can look at Heidelberg Tavern. In that matter persons attacked the Heidelberg Tavern, they turned around, drove away and then they say in the judgment of that matter
"they gained the impression that shots were being fired at them by persons in the vicinity of the tavern so they opened fire on persons they saw in the road and in the process killed the deceased concerned.." so and so.
With respect Honourable Chairperson, here we are dealing with a struggle of the past, people saw it as a war. The ANC saw it as a war and the security branch were opposed to this. The Committee, with respect, has to establish itself with the facts and the facts of the matter is and these speak volumes, that they went there to arrest persons and if they were not successful, they had to eliminate these people and they believed that they were indeed members of MK and MK members operated in groups and there were two people in the vehicle, they sat there and with respect, there could be no suggestion that they went there to kill innocent people. So with regard to a policy, Chairperson, it is my argument that it is not applicable here that there was such a policy. If one goes to kill innocent people they would not be before you applying for amnesty and it would be ridiculous, Chairperson.
If I could return to the Honourable Committee Member, Mr de Jager's question and that is that the general and the men who came from different branches went to the border and then planned an operation and then executed such an operation and they did so because of malice and because of people they did not believe in with respect, the evidence of General Wandrach is clear what the reasons were, why they went. His evidence is supported, the evidence of the other members support his evidence, they went to the border and there can be no suggestion that they went for no other reason besides the fact that they went to arrest these persons and if any other situation was applicable they would be eliminated and they believed, with respect, Chairperson, during that time that it was members of MK who were in resistance of the government of the day. I don't think there can be any doubt.
Chairperson, I want to submit and as I've already indicated, I am not going to argue any aspects which my learned colleague Mr Visser has submitted to you and my argument is that amnesty must be granted to Mr Gert Visser who is my client and he admitted that he entered Swaziland illegally and not according to the control or the passport control that there, he went there with a purpose of abducting persons from there illegally and if he could not be successful in that abduction those persons would be eliminated. He identified with that and he identified himself with the fact that the person who represented the task force were heavily armed, that these persons could be killed and that their action was illegal.
I might just mention, Honourable Chairperson, an aspect which I just thought of now. Where one is involved in an illegal action, for an example an illegal arrest, one cannot rely on self-defence because your action is illegal where you arrest somebody illegally and that person resists then that person can resist himself and from your side you cannot argue that you acted in self-defence, not at all, but before you execute your illegal arrest and this person endangers your life, can you not defend yourself? The person goes there with the objective to illegally arrest that person and the person on the other side, he doesn't want to be arrested but he knows he is involved in a struggle here and he resists then it is justified that he can resist himself then one cannot rely on self-defence because you are arresting him illegally. That is the argument which I would like to submit although it is not applicable.
ADV DE JAGER: If you create a situation where it is a state of emergency and you act and you created this state of emergency it is applicable in a state of emergency when you act out of emergency, you are busy with an illegal action or act and you feel your life is threatened or that you are driving too fast and here is a traffic officer and I see the traffic officer points his gun at me can I shoot him?
MR PRINSLOO: Chairperson, with respect, you cannot rely on this because in this instance it was aimed at the person on the other side whom he wanted to arrest illegally and that person is justified in resisting.
ADV DE JAGER: And then you cannot rely on self-defence?
MR PRINSLOO: Not at all because you say that you shot him because he wanted to shoot you, you knew he was armed, you go there to illegally arrest him and then he is justified in the same instance as illegal arrest if he is a police officer and he assaults you, you cannot say that is an assault on a police person because you cannot say that this is an illegal arrest.
ADV DE JAGER: I can understand that, I can see the sense in it but before you execute your arrest you did not open the man's vehicle door and he shoots you from the inside and then you say I'm going to shoot him now because I have to defend myself but before you do anything you are standing up, you approach the vehicle and they take out their guns and they want to shoot you, can you not defend yourself then?
MR PRINSLOO: Chairperson, one has to remember here that this has to do with an illegal action, how can you defend yourself when you are the attacker? If the other person was the attacker then it would be justified but with respect, the persons who went there were the attackers and they believed by nature of the situation, this is war and this is the enemy, I'm going to take him out so in the circumstances as Hope explained to you and with respect I want to argue that he was questioned and he never diverted, he remained with his point of view, but this is not applicable to my client. He said that he saw that in this action people could be killed and he would be guilty of killing people illegally.
ADV DE JAGER: Your client is Gert Visser? Gert Visser did not shoot?
MR PRINSLOO: No he did not shoot, the two Vissers did not shoot. The other Visser was outside. I just mentioned it, it touches on the circumstances of my situation, it touches on the situation of Mr Visser's client. I would just like to mention this because I just recalled it that to the applicant. Mr Gert Visser be granted amnesty because in the republic there was a conspiracy to abduct persons and it was foresaw there that there could be any resistance, that persons could be killed and therefore it was a conspiracy to murder on the republic's side and in Swaziland persons were killed which with regard and this comes down to murder and as we have already submitted to you in the evidence there was damage to property by the persons who were involved there with regard to defeating the ends of justice there is no evidence that he made any false statement and held anything else because this is a man who murdered somebody, he didn't go and tell the police that he had murdered somebody so they could be no charge of defeating the ends of justice. These are police officers, they omitted to mention that they were guilty of any such act and that is my argument except if the Committee wants to address them on anything else.
CHAIRPERSON: Thank you Mr Prinsloo.
NO FURTHER ARGUMENT BY MR PRINSLOO
CHAIRPERSON: Ms van der Walt?
MS VAN DER WALT IN ARGUMENT: I will be brief Chairperson.
With regard to Mr Schalk Visser I would like to submit that he has satisfied the Committee, I use the word satisfy and as the Afrikaans text says convinced, I will say he has satisfied and not convinced them that he executed this act in the execution of his duties and he believed that he did so to oppose the political struggle at the time and to maintain and to keep the government of the day in power. There is an aspect which was asked from Mr Visser as to which offence does he request amnesty. It is clear from Mr Visser's evidence that he was not an outsider in this whole application, he was involved with the arrest of Mr Mnisi and he also had knowledge of the sketch plan, he knew that these were sabotage points which were indicated thereon. He was the head of Eastern Transvaal's security branch. The points which were pointed out and the other witnesses have given evidence are in the Eastern Transvaal and in Natal. He had much interest there. He was informed by Mr Viktor of the things that would take place in his area. He accompanies them to Oshoek, he was not part of the finer planning as he has given evidence but when he was informed by Mr Viktor and when he was involved with the arrest of Mr Mnsibi and his presence at Oshoek he decided to participate in this operation and with his decision he became part of this conspiracy because the conspiracy initially took place within South Africa to arrest these persons which would come down to an abduction and if the arrest was not successful, he knew that a possible shooting would ensue.
CHAIRPERSON: Did he not accompany them to establish for himself what was going on?
MS VAN DER WALT: It doesn't seem like he played an active role in this incident, definitely not but it is as Mr Viktor, he gave the instruction but he had no further role in this incident. He also was just present at the border post as well as Mr Wandrach. He could have stayed in Pretoria because he gave an instruction to Mr Strydom to execute the operation, it is exactly the same, he identifies with what would have happened there. He could have stayed away if he wanted to, he did not have an order, this is now Schalk Visser. If I understand Mr Viktor's evidence correctly and as Mr Visser believed, Mr Viktor involved him because the operation would take place in his area and I don't think he is dissociated from the whole operation. I cannot place my hands on it but according to Mr Viktor he informed him and I would like to argue that this is how he became involved.
CHAIRPERSON: It wasn't an order, he was informed that an operation would be executed in his area or do I not understand you correctly?
MS VAN DER WALT: I would like to argue that was an order because he is a subordinate and the operation was to be executed in his region and that is why he was there otherwise it was not necessary for him to be there and you have to consider that his action was not dissociated, he was involved right from the start where this information came in and this information has regard to his jurisdiction area where this sabotage would take place and I would like to argue that he was part of this conspiracy which was conspired on the side of South Africa and he also identified as he said that there could be possible resist and the instruction is clear and this is the evidence of all the applicants that an arrest would be executed before the persons had to be eliminated and Mr Visser identified with this and he was also aware that he confirmed Mr Strydom's evidence that the task force members went in with heavy artillery, one does not go into another country with heavy artillery if you do not foresee the possibility that persons could be killed there and therefore he also applies for amnesty on the murder of these two persons.
CHAIRPERSON: You would have referred to that, what is the gist of his evidence? That he identifies himself with the fact that if the MK operatives had been killed but what would have happened if anybody else had been killed, what would be the particulars if he would identify with this fact if it was possible or it was people who had nothing to do with the struggle then I would not reconcile myself with this action, is that how I understand it, is that correct?
MS VAN DER WALT: That is exactly the argument which Mr Visser and Prinsloo submitted to you. I want to submit that Mr Visser's evidence with regard to what you have put to me now, he was certain with regard to the information which they had gathered that these were MK members and this is why ...(inaudible)
executed, he would not have reconciled himself with such an operation if he was not sure that it was MK members, that was his evidence and this is what I want to submit to you with the evidence of Mr Gert Visser that he had a certain credibility of Mr Mnisi and the fact that they had listened in, it is clear Mr Gert Visser said that somebody listened in, it is of course a person who spoke the language and they were certain it was the handler of Mnisi and in that light you must accept Mr Schalk Visser's evidence and furthermore the question that was put by Mr de Jager why would all those ranks, the generals if I could call them that, come from Pretoria, this is now Mr Wandrach, Mr Viktor, they come here to monitor this operation, they would not have done so if they were not certain if this information of Mr Mnisi was correct. Excuse me, Mr Mnisi, I confuse those two surnames, please excuse me.
I would like to submit furthermore that Mr Schalk Visser was definitely, when he became involved in this operation, he was certain and he was of the conviction that these were MK members.
CHAIRPERSON: But the question with regard to the identity of the persons who were killed, is this not of cardinal importance of Mr Schalk Visser's case because he says that if it was other people he does not automatically reconcile himself with what had happened there so he qualifies his reconciliation with this matter and he identifies with this matter if it was George and Brown that was killed in this instance, in other words these highly trained MK operatives, but if it was anybody else he is not automatically reconciled with this matter.
MS VAN DER WALT: I don't think you should focus on the names George and Brown, you must focus on the fact that he said that it was MK members George and Brown because if I understand Mr Gert Visser's evidence, they were certain that the one would be George but the other could have been any other trained MK member.
CHAIRPERSON: You are entirely correct, that is the evidence, the names are not important.
MS VAN DER WALT: But the fact that all the evidence and all information that the security police had indicated that and there is no other evidence to the contrary that these were definitely two MK members and I am not going to repeat Mr Prinsloo's argument and all the facts, the vehicle, the rendezvous point, there could be no other deduction made or inference made that it was definitely two MK trained members because there would have been nobody else, with respect, and I would like to submit that Mr Visser satisfies or that he has satisfied you that he satisfies the requirements of Section 22(b) and 22(f) as well as (g). That is my submission.
NO FURTHER ARGUMENT BY MS VAN DER WALT
CHAIRPERSON: Thank you.
ADV DE JAGER: Ms Thabethe, can I just ask one question and I want to do this in relation to an example.
Two persons commit the murder of Mr X. They conspired to kill Mr A and one of them shoots and the other one associates himself with the act but when they reached the victim they saw it was not the person whom they wanted to shoot, they had shot another person. The person who was not shot, would he be able to say that "I associated myself with the murder on Mr X but I would I withdraw my situation because A was shot or my Y was shot."
MS VAN DER WALT: He would still be guilty, he cannot withdraw the fact that he said that he did not want to shoot that person because they went with the purpose and they conspired to kill a certain person. The name attached hereto, well the wrong person was indeed shot but the purpose was to kill a person and he would be guilty of murder.
ADV DE JAGER: But the fact that Mr Visser says that "I associate myself with the fact that they had shot George and I
agree with that" but after the incident, he says "I had the motive of shooting Mr George but it would seem that we had shot X." Is he then not guilty?
MS VAN DER WALT: The difference in the amnesty application is that what Mr Visser says is that he associated himself with the idea that it was an MK member and this is what I told the Chairman.
INTERPRETER: The speakers microphone is not on.
ADV DE JAGER: But my co-murderer shoots the wrong person but now I say I do not associate myself with this because an innocent person had been shot, am I not guilty of murder then?
MS VAN DER WALT: Definitely Chairperson.
ADV DE JAGER: You are still guilty of the offence, that is how I had said it.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: Mr Chair, I don't have any submissions but I just want to add this and say that in my opinion there's no reason why the Committee Members should not accept the evidence of the applicants. More especially because Mr Johannes Mnisi was not notified, he was aware of the contents of the application of the applicants. Furthermore he had a legal representative who could advise him if he wanted to oppose or query anything that the applicants had raised. He opted not to query anything or oppose anything that the applicants have raised and for that reason I would give the opinion that I don't see why the Committee Members should not accept the evidence of the applicants and ...(intervention)
CHAIRPERSON: You mean that's a factor that we can take into account?
MS THABETHE: Yes Mr Chair, that's what I mean.
CHAIRPERSON: In deciding what the factual framework of this application should be, the fact that Mnisi was notified and he didn't come and say anything?
MS THABETHE: Yes and also he was aware that there were allegations with regard to MK Brown and MK George and he did not challenge that or oppose that fact.
CHAIRPERSON: Yes I mean that's a fact that we take into account but you have to test the evidence that he has placed before you as I understand it and if it's improbable or if it's clearly untruthful you can accept or reject it?
MS THABETHE: Sure.
CHAIRPERSON: But you're saying that's a factor that comes into the picture?
MS THABETHE: Yes.
CHAIRPERSON: There is nothing in that gainsays what the applicants have told us from Mnisi at least?
MS THABETHE: Yes that's what I say.
CHAIRPERSON: Yes, then I understand your submission. Have you got anything else?
MS THABETHE: Yes I just wanted to put it on record as well that we did make attempts to find out what the true identities of MK Brown and MK George were. We even approached or I myself approached Mr Eric van den Berg to find out from Mr Johannes Mnisi what the true identities of Brown or George are and it appears that he knew them, he just knew them as MK Brown and MK George, he doesn't know their true identities so I thought I should put that on record.
CHAIRPERSON: Oh, is that all that he said? We don't know whether they're alive or deceased or not?
MS THABETHE: No Mr Chair and I think like I've said before he's aware of what has been alleged by the applicants with regard to them, that they are deceased, so maybe he could have raised the fact that they are still alive, if that's what he thought or if that's what he knows.
CHAIRPERSON: ...(inaudible)
MS THABETHE: Yes I am speculating.
CHAIRPERSON: ...(inaudible) Have you got anything else Ms Thabethe?
MS THABETHE: No Mr Chair, I don't.
CHAIRPERSON: Thank you very much. Mr Visser, have you got any other submissions? Have you got any further submissions in the light of anything else that happened here?
MR VISSER: Not really Chairperson, I think the matter has been thrashed out sufficiently for me to enter the arena now. The only point which I want to raise is I'm not quite sure whether when I discussed the different acts or offences, the offences or delicts when dealing with the amnesty applicants that I mentioned malicious damage to property. I remember we did during the evidence but I'm not sure whether I did but you will not hold that against me if I didn't mention something there?
CHAIRPERSON: No Mr Prinsloo saved your case I think.
MR VISSER: But as I said before Chairperson, what we believe will be sufficient in all matters like this is for amnesty to be granted for attempted abduction for murder and any lessor offence that can be found on the evidence and all other acts, omissions or offences which can be brought in against the applicants, that would cover it. We know exactly which date, which place, everything, the incident is identified sufficiently, properly, so that none of the applicants can go wider than that if that would be your order. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Visser. We will need some time to look at this matter and we will reserve the decision and we will notify the parties once the decision is available. We will have to conclude the proceedings today. Mr Visser and Mr Wagener have to appear at a session of colleagues in Pretoria and we in any event in view of the discretionary religious holiday tomorrow don't have use of this particular venue so we won't be able to sit in any event tomorrow. We have enough to do so we won't be losing any time. There's no sense in reconvening these proceedings on Friday morning just to pack up half way through the day so we're going to adjourn our proceedings until Monday morning, in this venue at 10 o'clock, when we will proceed with the remaining matters on our roll. Can I just on behalf of the panel thank Ms van der Walt and Mr Prinsloo who have concluded their business before us, for your assistance, thank you very much. You're excused.
We'll adjourn.
COMMITTEE ADJOURNS
