MR VISSER: Brigadier Schoon, Chairperson, the other document placed before you with reference to our list of exhibits would be Exhibit C7, that's the one, yes C7. It was drawn last night but we anticipated that we were going to do so with fair certainty and that's why we placed it on your list of exhibits before.
WILLEM FREDERICH SCHOON: (sworn states)
CHAIRPERSON: Mr Visser?
EXAMINATION BY MR VISSER: Thank you Chairperson.
Mr Schoon, you have given evidence on numerous occasions, I'm not going to go through the entire story with you again. You have already testified before this exact Committee and you request that that evidence also be considered with regard to your evidence given today?
MR SCHOON: Yes.
MR VISSER: Your application in this regard appears on page 10 - 14 of bundle 1, that is what my note is, however I'm not sure whether that is correct. Yes, indeed, thank you. And the application has to do with Mr Mbali, is that correct?
MR SCHOON: Yes that is correct.
MR VISSER: Now could you please inform the Committee from paragraph 2 on page 3 with regard to your involvement in this matter?
MR SCHOON: Yes. During 1972 one Alexander Mumbaris and his wife were arrested at the Koopfontein Hek Border Post between the R.S.A. and Botswana borders. Subsequent investigations revealed that Mumbaris wanted to infiltrate a group of 26 MK members who were specially selected, highly trained persons, to the R.S.A. The boat in which they travelled went ashore at Mogadishu which meant that the members of the group then had to infiltrate South Africa overland. It also came to light that various of these MK members had already entered the country in small groups of twos and threes.
Mumbaris and his wife were responsible for these infiltrations through Botswana and Swaziland. With the co-operation of Mumbaris, most of these insurgents were apprehended and were detained in terms of Section 6 of the Terrorism Act. Due to the scope of the investigation and the involvement of various divisions, it was decided at head office that the investigation would be co-ordinated at Pretoria and that Major Roelf van Rensburg and I had to prepare the police dossier for court. The investigation was run from within the old Compol Building.
MR VISSER: Can I just interrupt you there for a moment?
Is this because of your involvement in the investigation that you learnt the facts about which you are giving evidence today?
MR SCHOON: Yes that is correct.
MR VISSER: And is it also correct that various hearings followed as a result of these investigations which were conducted by you and Mr van Rensburg?
MR SCHOON: No, there was only one hearing.
MR VISSER: Just one?
MR SCHOON: Yes, during which four persons were prosecuted.
MR VISSER: Then just another aspect for a cross-reference. In relation to this exact same group with regard to the amnesty application of the two PAC members who served their applications before this Committee?
MR SCHOON: No, it was two ANC members.
MR VISSER: ANC members, I beg your pardon. Not PAC but ANC.
MR SCHOON: It's the one that was killed in a skirmish near Zeerust.
MR VISSER: Yes and the other was then going to be eliminated according to an order that was given?
MR SCHOON: Yes that is correct.
MR VISSER: Please proceed with paragraph 7?
MR SCHOON: The abovementioned ANC terrorist whose correct name I could not recall earlier but I now know as Herbert Mbali, MK Lenny Boy, was abducted at the end of 1972 from Lesotho and delivered to the security branch in Bloemfontein. he was one of the group of 26 members of the special group of MKs to which has already been referred to in this document.
Major General Piet Kruger who has since passed away gave me the order to take Mbali to - or to take over Mbali in Parys. Captain Struwebaker and Hannes Moloi accompanied me. When we were in Parys we took over from General Genis and Captain Vorster and took Mbali to Pretoria. I reported to General Kruger and he then ordered that we take Mbali to Platjan border post and then wait there for further orders.
MR VISSER: What was you rank in 1972?
MR SCHOON: I was then a junior Major.
MR VISSER: Very well.
MR SCHOON: According to the best of my recollection, matters went as follows. Mbali was abducted on a Saturday night. On the next Sunday he was handed over to me and other members at Parys, that same day we went to Pietersburg or Louis Trichardt where we spent the night.
MR VISSER: Did you go to Pretoria first?
MR SCHOON: Yes, we first went to Pretoria and reported to General Kruger after which we left for Pietersburg and Louis Trichardt. On that Monday we stayed over in Platjan. On the Tuesday we received an order from the security head office to bring Mbali back to Pretoria. Late that afternoon we arrived in Pretoria. Mbali was delivered to Colonel C F Zietsman and he and the then Lieutenant Colonel Jan du Preez who has since become a Brigadier and retired, took him back to Lesotho by aeroplane.
MR VISSER: What was Colonel Zietsman’s position in security branch?
MR SCHOON: If I recall correctly, Colonel Zietsman was in command of the investigative unit. He was then flown back to Lesotho where according to what I was told he was handed back to the Lesotho authorities. I was also informed that the Lesotho Government made serious objection against the abduction. That is all that I had to do with the incident, no person was killed or injured. I was thoroughly aware that Mbali was abducted illegally from Lesotho when I dealt with him while he was in the R.S.A. and I associated myself with that.
Furthermore, I committed defeating the ends of justice by not reporting the matter and I also did not compile any report about it later on. I committed these acts or omissions in the execution of an order on behalf of or with the approval of the South African Police and the former government and also in promotion and protection of the National Party's interests. The acts and omissions which I committed I did not commit for my own gain but in the execution of my official duties as well as in execution of an order given by General Piet Kruger. I acted as a member of the opposition to the struggle. My action or conduct was aimed against the supporter of the ANC/SACP Alliance and I believed that my acts fell within the scope of my service as a policeman and within the execution of my express or sworn authority. I request respectfully that amnesty be granted to me for my acts or omissions in this relation.
MR VISSER: And you have given a summary of those acts or omissions on page 2. Brigadier, there is an allegation that Mr Mbali may have been assaulted. Do you know anything about that, about any assault conducted against Mr Mbali while he was in your custody or possession?
MR SCHOON: No, he was never assaulted in my presence and according to the best of my knowledge for the entire period of time after which I took him from Parys he was not assaulted.
MR VISSER: Was he blindfolded when you transported him from Parys?
MR SCHOON: No, he was not blindfolded.
MR VISSER: Was he bound?
MR SCHOON: I cannot recall. I know that he arrived there with his hands cuffed. However, not one of us three, that would be me, Baker or Moloi had cuffs, I don't know if we borrowed cuffs from anybody or whether we took him uncuffed to Pretoria.
MR VISSER: Did you at that stage receive any orders to interrogate Mr Mbali?
MR SCHOON: Only after I arrived back in Pretoria.
MR VISSER: Yes and what was your order?
MR SCHOON: The order was for us to take him to Platjan until he was going to be interrogated. That was where we were to wait for further orders.
MR VISSER: In Exhibit N Chairperson, Platjan is there at the top near the Mashatu Game Reserve. There's a small place there next to the Limpopo River. Is Platjan a border post?
MR SCHOON: Yes, between the R.S.A. and Botswana.
MR VISSER: Now you are speaking of an obstruction of justice here for which you are requesting amnesty. Why did you have to take him to Platjan?
MR SCHOON: Chairperson, I believed that we had to keep him away from the authorities in case of any application being brought against us.
MR VISSER: So it was an attempt to obstruct justice?
MR SCHOON: Yes that is correct.
MR VISSER: And did your commanders expect such an order because he was abducted?
MR SCHOON: Yes I believe that they expected it because during that stage of our countries history it happened often that such applications were directed at the court.
MR VISSER: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Thank you Mr Visser. Ms Thabethe?
CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair.
Mr Schoon, you say your role in this incident starts from when you collected Mr Mbali from Parys, is that correct?
MR SCHOON: That is correct, Chairperson.
MS THABETHE: Now would you deny the fact that Mr Mbali was assaulted in Parys?
MR SCHOON: I have no knowledge of that, Chairperson.
MS THABETHE: But you wouldn't deny so?
MR SCHOON: I can't deny it Chairperson.
MS THABETHE: Okay. There's just one issue that I've been instructed to raise with you, Mr Schoon. It arises from what you said, on page 13 of bundle 1, at number 9.4, it's page 13 where you refer to the above ANC terrorist whose correct name you can't remember. You also said the same thing in your statement at paragraph 7. Now my question that I've been instructed to ask you is, do you still see or do you still regard Mr Mbali as an ANC terrorist?
MR SCHOON: No Chairperson, not at this stage. Circumstances have changed totally.
MS THABETHE: I don't know whether I missed the part where you say you transported him from Parys to that small farm or that small place, I can't remember it's name, who you were with?
MR SCHOON: Baker and Moloi accompanied me Chairperson.
MS THABETHE: Mr Chair, I have no further questions thank you.
Oh, sorry Mr Chair, sorry. I do have further questions.
In paragraph 11 of your statement, you've mentioned the fact that Brigadier Jan du Preez took Mr Mbali to Lesotho by flight, is that correct?
MR SCHOON: That is correct, Chairperson. Colonel Zietsman and at that stage Jan du Preez was a Lieutenant Colonel and not a Brigadier.
MS THABETHE: Well my instructions, Mr Schoon, are that it's a Mr Johannes van der Merwe who took Mr Mbali to Lesotho by flight. What is your comment to that?
MR SCHOON: Chairperson, no, I later heard that later General van der Merwe, that he was present at the delivery of the Maseru border post. I heard that this delivery took place there and not inside Lesotho itself.
MS THABETHE: I'm not sure whether I'm hearing correctly, you're saying you heard that he was there but you have no knowledge of whether he actually flew with Mr Mbali, would I be correct to say so?
MR SCHOON: I have no knowledge of that, Chairperson. I cannot comment.
MS THABETHE: Thanks Mr Chair, no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe.
Was Mr Mbali handed to Mr Genis by you in Parys?
MR SCHOON: That is correct, Chairperson.
CHAIRPERSON: And from there was he in your presence?
MR SCHOON: Except at Louis Trichardt, there we left him in the police cells at night, Chairperson, otherwise he was constantly in my presence.
CHAIRPERSON: So if he was assaulted in Parys then you would have been aware of that?
MR SCHOON: Chairperson, if he showed any signs and if he had complained to me I would have but he did not complain.
CHAIRPERSON: But I mean it was not possible if he was assaulted, it was not possible this would have happened when you were not there because he was continuously in your presence?
MR SCHOON: No Chairperson, not at Parys, afterwards, after he was handed over to me he was not assaulted.
CHAIRPERSON: Did you see him arrive there at Parys?
MR SCHOON: No Chairperson, when we arrived there I think it was - General Genis was already there.
CHAIRPERSON: So you found him there?
MR SCHOON: Yes I found him there.
CHAIRPERSON: Was he still blindfolded?
MR SCHOON: Yes he was in the car in the garage at the police station.
CHAIRPERSON: Was he blindfolded?
MR SCHOON: Not as far as I know Chairperson. It was quite a while ago, I cannot recall exactly how these things took place.
CHAIRPERSON: But if I heard you correctly you said he was blindfolded, he was brought blindfolded into Parys.
MR SCHOON: No Chairperson, I think that is what the previous applicant said.
CHAIRPERSON: So you don't know whether he was blindfolded when he arrived at Parys?
MR SCHOON: I don't know of that, Chairperson.
CHAIRPERSON: So he may have been assaulted before you arrived at Parys?
MR SCHOON: That's possible Chairperson but from there onwards he could not have been assaulted, not in my presence he was definitely not assaulted in my presence, Chairperson.
CHAIRPERSON: Did you question him?
MR SCHOON: Yes Chairperson. Captain Baker could speak Xhosa, he did the questioning.
CHAIRPERSON: Did he cooperate?
MR SCHOON: Yes he gave his co-operation and what he told us concurred with what we had already known.
CHAIRPERSON: So it was not necessary to assault him to get his co-operation for the interrogation?
MR SCHOON: No Chairperson.
CHAIRPERSON: Did you regard him as a trained ANC MK person?
MR SCHOON: Chairperson, he was regarded as a highly trained member because he was one of a handful who were chosen to perform specific tasks here.
CHAIRPERSON: Was he regarded as dangerous?
MR SCHOON: At that stage I would have regarded him as dangerous, yes Chairperson.
CHAIRPERSON: Did you receive any instruction as to how to approach the interrogation of this person?
MR SCHOON: No Chairperson.
CHAIRPERSON: They did not tell you how to go to work with him?
MR SCHOON: No Chairperson.
CHAIRPERSON: Very well. Thank you Mr Schoon. Any other questions?
ADV DE JAGER: General Kruger, what was his function, he was the chief of what?
MR SCHOON: Chairperson, I'm not sure. He was the newly appointed chief of security or he was in the process of becoming that at that stage, Chairperson, but he was already a Brigadier at that stage and that stage that was the command post of security.
ADV DE JAGER: And who was the Commissioner?
MR SCHOON: I'm not entirely sure Chairperson, but I think it was General Gert Prinsloo.
ADV DE JAGER: The Commissioner, did he ever contact you or do you know that he protested against this action?
MR SCHOON: I have no knowledge thereof Chairperson. He never contacted me and no other officer contacted me and reprimanded me.
CHAIRPERSON: You didn't receive any awards for these actions, any medals or anything?
MR SCHOON: No Chairperson.
CHAIRPERSON: Any re-examination Mr Visser?
MR VISSER: None Chairperson.
CHAIRPERSON: Thank you Mr Visser.
MS THABETHE: Sorry Mr Chair?
CHAIRPERSON: Yes ma'am?
MS THABETHE: Can I ask for your indulgence and my learned colleague's indulgence? There's a question that came up from your questioning that I would like to put to the applicant if it's okay?
CHAIRPERSON: Yes go ahead.
CROSS-EXAMINATION BY MS THABETHE: Thanks.
Mr Schoon, you have testified that Mr Mbali slept in a police cell. Is that correct?
MR SCHOON: That is correct, Chairperson.
MS THABETHE: Well my instructions, Mr Schoon, is that he actually slept in a car, handcuffed, in a garage with two police officials. What is your comment to that, is that possible?
MR SCHOON: Chairperson, at Louis Trichardt, Mr Baker and I and Moloi arranged that they had to book him in at the police station and if they did it then I cannot oppose that. It is possible that it may have happened, Chairperson.
MS THABETHE: He has also indicated to me when you spoke about that guy who spoke Xhosa that it's the guy who actually assaulted him. What is your comment to that as well?
MR SCHOON: Chairperson, I have no knowledge of that.
MS THABETHE: Thank you Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: But why would Baker and Moloi, were you the senior?
MR SCHOON: Yes I was the senior, Chairperson.
MR SCHOON: Would they have disregarded your instruction and not have locked the man up in a police cells and have left him in the car?
MR SCHOON: Chairperson, if I recall correctly, I told them to arrange his accommodation for the night and they might have understood that they had to do it in another manner instead of booking him into the cells.
CHAIRPERSON: But this is what you ordered them, you told them book him into the police cells?
MR SCHOON: I said that they must arrange for his accommodation for the evening.
CHAIRPERSON: At the police cells?
MR SCHOON: Yes Chairperson.
CHAIRPERSON: So it seemed that they had disregarded your instruction?
MR SCHOON: It would seem so Chairperson because at Platjan he was booked into the police cells.
MR VISSER: Perhaps Mr Chairman, Ms Thabethe could just ascertain what night they are talking about because it seems that he was brought out on the Saturday night or the Sunday morning and the Sunday night they slept somewhere and the Monday night he slept, so there were two nights. There may be something in that, I'm not sure.
CHAIRPERSON: Well you see on his instructions to Ms Thabethe he seems to dispute the allegation that he slept in a police cell.
MR VISSER: Yes but he also slept in police cells at Platjan you see so he slept in police cells according to Mr Schoon's recollection at Louis Trichardt as well as Platjan.
CHAIRPERSON: Well I had thought I heard Mr Schoon saying that in Louis Trichardt he overnighted in the police cells.
MR VISSER: But at Platjan also, Chairperson. And there's another night, that is Saturday night, we don't know what time he arrived in Bloemfontein. It might be that is where he slept in the car. There are three nights we're talking about.
CHAIRPERSON: Yes, we'll hear whether Ms Thabethe’s got any other instructions but it seems to be that Mr Mbali was responding to the allegation that he overnighted in the police cell in Louis Trichardt.
MS THABETHE: It appears that this was the first night he's talking about. There were two nights, so he's talking about the first night.
MR VISSER: That would be Louis Trichardt.
CHAIRPERSON: So that's when he slept in the car?
MS THABETHE: Yes Mr Chair.
CHAIRPERSON: It doesn't seem as if there's misunderstanding, it would seem that your order was disobeyed?
MR SCHOON: I cannot explain that, Chairperson.
CHAIRPERSON: Baker and Moloi did not tell you anything in that regard, give you an explanation?
MR SCHOON: No, they did not report this to me, Chairperson.
CHAIRPERSON: Mr Mbali says it was the person who spoke Xhosa who assaulted him.
MR SCHOON: Yes.
CHAIRPERSON: It seemed it was Baker?
MR SCHOON: I don't know anything thereof, Chairperson.
CHAIRPERSON: Is Baker deceased?
MR SCHOON: No Chairperson, he is still alive.
CHAIRPERSON: Very well. Thank you Mr Schoon.
MR VISSER: We have no further witnesses to lead, Chairperson.
CHAIRPERSON: Thank you Mr Visser. Mr Schoon, you are excused, thank you very much.
WITNESS EXCUSED
CHAIRPERSON: Ms Thabethe?
MS THABETHE: Thank you Mr Chair. Mr Chair I would like your guidance here because Mr Mbali is not opposing the applications of Mr Genis and Mr Schoon. At the same time I have put his version to them so I don't know whether it's necessary for me to lead him on what I've put to the applicants regarding the ...(indistinct) not opposing the application.
MR VISSER: Well Mr Chairman, if I may from my side, Mr Mbali has not implicated either of my two witnesses in the assault. It doesn't even seem indirectly. So from that point of view it's not necessary for him to give evidence unless you feel that there is an implication which I didn't think there was.
CHAIRPERSON: Yes Ms Thabethe, it doesn't seem as if there's a real dispute between Mr Mbali and these two persons before us at this stage.
MS THABETHE: That is correct, Mr Chairman.
CHAIRPERSON: The testimony on I assume the assaults wouldn't really take the matter much further?
MS THABETHE: Sorry Mr Chair?
CHAIRPERSON: Testimony on things like the assaults wouldn't take the matter much further, I don't know if there's anything else in particular that Mr Mbali wanted to say?
MS THABETHE: No Mr Chair, from this incident there's nothing arising except that I mean he is worried about his uncle who was killed but I don't think it has anything to do with this incident.
CHAIRPERSON: Yes, no then it doesn't seem as if there would be anything substantial that he would be able to add.
Mr Visser, have you got any submissions?
MR VISSER IN ARGUMENT: Mr Chairperson, with respect, this is an application which I submit you will consider very favourably. Chairperson, the ANC as we all know declared it's peoples war on the 16th December 1961. We know that very soon thereafter the so called M Plan was put in operation and that was the step between passive resistance and active resistance. We know that very soon thereafter in 1963 it led to the Rivonia Trial with all it's implications and thereafter this country saw a spate of increased sabotage and terrorist attacks all over the country.
Lesotho, as we have pointed out in our original heads of argument and in the evidence presented to you by way of annexure A, formed a very important part in the struggle of the ANC/SACP Alliance. We know for example that the late Mr Chris Hani operated in Lesotho and with great effect, if one listened to the amnesty applications of General Erasmus and others regarding the amnesty applications which took place in the Eastern Cape regarding matters such as Mr Goniwe, Mr Mtimkhulu, Mr Topsy Mdaba etc.
Chairperson, the point that I'm making is that although the amnesty applications which normally come before you all took place or most of them took place in the early '80s and onwards, one must not think for a moment that the same circumstances were not already present in 1972 when this incident took place. These two witnesses, these two applicants, Mr Chairman, took orders from a senior commander. You heard the very frank evidence of General Genis who said that he understood the order to be first of all and first and foremost to be carried out in a lawful manner and that's what he attempted to do and that's the instructions that he gave to Vorster. Vorster saw fit to attempt to lure Mr Mbali out of Lesotho through an informer. The informer at one point in time decided that he was going to take the bull by the horns so to speak and he abducted him together with another one of his colleagues.
Mr Mbali talks of six people. Now the two applicants before you now can shed no light on that and clearly if it happened, we certainly can't deny it. We would say that, with respect, it's very unlikely because if the Lesotho policeman who was the informer knew that what he was doing was unlawful, it's hardly likely that he would have drawn in a lot of people while he was committing his act of abduction. But be that as it may it takes the matter no further.
ADV DE JAGER: But according to suggestion, even the policemen acting with him if they were only two were under the impression that it was arrest for some criminal offence? So the other five could have been of the same opinion, he might have ...(intervention)
MR VISSER: Yes, from that point of view. I was just throwing the ideas around but the point which I'm submitting to you is that it really doesn't matter one way or the other to the present application for amnesty whether they were two or whether they were six. Mr Genis told you and we submit, Chairperson, that there's nothing in the evidence of these witnesses that is inherently improbable or that would cause you to consider their evidence with caution. He told you that he received Mr Mbali, they had coffee, he had the mask and his cuffs remove and that nothing happened to him. Certainly Mr Mbali does not point any finger directly at either of these two applicants, Chairperson and therefore we ask you to accept that they are truthful and they are factually correct when they say that neither them nor anyone else in their presence assaulted Mr Mbali.
Chairperson, what clearly happened here was that Mr Mbali was packed away somewhere in the Northern Transvaal at Platjan in order to evade his detection should an application for an habeus corpus order be brought and clearly in that regard at least Mr Schoon committed knowingly, associated himself at least to commit an act of obstructing the ends of justice.
Chairperson, the fact is that Mr Schoon, both Mr Schoon and Genis associated themselves with the fact of keeping Mr Mbali in spite of the knowledge that they knew that he had been abducted and for that reason we have asked, Chairperson, for abduction, man stealing, for amnesty for that. Clearly his detention if the case of Ebrahim Ebrahim is taken as authority, was unlawful throughout during his stay in the R.S.A. and of course his freedom was taken away from him. Also, none of these two witnesses report that, or brought the matter out in the open and therefore - I'm not quite sure what the English is for "dwarsboming" I thought that was defeating the ends of justice but there's a slight difference between "regsvereideling" and "dwarsboming".
CHAIRPERSON: Perhaps you must explain that because I also have some difficulty in understanding how it is obstructing the ends of justice. Was there a judicial process in place at the time that they were evading or that they were obstructing?
MR VISSER: No there wasn't but they assumed that there was going to be and that is why he was taken to Platjan.
CHAIRPERSON: Doesn't that deal with possibly their duty to report a crime, isn't that the offence they were sort of committing?
MR VISSER: Well Chairperson, I would submit both in order to be safe because Mr Schoon fairly and frankly told you that he knew, he knew that the reason why the man was taken to Platjan was not for a lawful reason, it was basically for a sinister reason. Sinister reason being that he would not be able to be found if an application is brought to court and that, Chairperson, we submit certainly has a tinge of unlawfulness about it. From that point of view we do draw the distinction between defeating the ends of justice and "dwarsboming van die gereg". It's technical, it's technical Chairperson but obstructing the course of justice, defeating the ends - perhaps obstructing the course of justice, yes.
CHAIRPERSON: Was there ever an order to abduct Mr Mbali?
MR VISSER: No Chairperson, but what is very clear is that the head office wanted Mr Mbali very badly and once General Genis had him in his possession, he was ordered to bring him up and hand him over to the men from Pretoria and Brigadier Schoon has told you that there's no question that head office knew that he was in fact abducted.
CHAIRPERSON: Well they handed him back, they didn't hold onto him.
MR VISSER: Yes but that's only for one reason, let's face facts, Chairperson, if the story hadn't broken in Lesotho I think it's fair to say Mr Mbali wouldn't have been handed back. Ebrahim Ebrahim wasn't handed back.
CHAIRPERSON: I think that is exactly the point, I mean there was no reason why they couldn't hold onto him if they really wanted to have him abducted. He's wanted here and he's part of a cell that we are charging, so we're not handing him back to Lesotho, you know which in terms of our politics, what sort of leverages that Lesotho had over South Africa at that time?
MR VISSER: Well this kind of thing has always given rise to tension Chairperson and it certainly didn't do the old regime any good when there were incidents that became known. We know with the Pillay matter the same thing happened. Pillay was abducted and the moment Swaziland learnt about that there was a furore and the Minister of Foreign Affairs had to go and please explain and the Commissioner of Police had to go down there etc.
Chairperson, but Mr Genis was frank enough to tell you this. He said he considered first to follow the legal option but the illegal option was clearly left open. As he said to you in his evidence he was told what to do, not how to do it and if you follow the amnesty hearings you will often hear security members, police members, tell you exactly that. They were told what to do not how to do it.
ADV DE JAGER: It's on his evidence he never ordered an abduction.
MR VISSER: He was ordered to get Mbali out of Lesotho, Chairperson. Certainly that must be considered wide enough if he couldn't lure him out to go and take him out.
ADV DE JAGER: Ja but he didn't decide or he didn't give any order for an abduction, according to the evidence. I don't say whether it's correct but they brought him out and thereafter he condoned it at least.
MR VISSER: That's precisely why we asked for amnesty. On the facts before you he never took that decision. That decision was taken by the informer in Lesotho but once he had Mbali he kept him and that is where he committed the offence. If he had given him back of course there wouldn't have been an offence.
CHAIRPERSON: ...(inaudible) sufficient for him to condone it where the authorities handed him back, I mean the authorities don't seem to have condoned the abduction, it seems only Genis and Schoon and others.
MR VISSER: And Kruger?
CHAIRPERSON: Well Genis says he doesn't know what Kruger said?
MR VISSER: No, no, he says he didn't tell Kruger later?
CHAIRPERSON: Yes but he didn't tell us that Kruger said it's fine, you hang on to him, he says he didn't know what Kruger said and now we know that the man was handed back?
MR VISSER: Yes but Chairperson, with great respect, he was handed back for one reason only and that much I'm asking you to infer from as a necessary inference and that was because the other person in Lesotho blew the whistle?
CHAIRPERSON: Mr Visser, if the authorities here had authorised an abduction, it wouldn't have mattered to them whether anybody blew the whistle, they wanted the man abducted and they would have had him here and they would have held on to him. But wasn't it because an abduction was never authorised, not even by Genis and them, it was a windfall to have this man in South Africa but even they were uncomfortable with this thing. Is that not why the authorities said whoa, we never wanted him under those circumstances, he's got to go back?
MR VISSER: Chairperson, if you look at the history and if you look at other cases of abduction, only because, we submit, only because they were found out that the authorities - the authorities could never have then turned around and said "no, no, no, we're going to keep Mr Mbali". Of course they would say "no, no, no, my security force members didn't act correctly and we'll" - of course they will deny it, but as Mr de Jager pointed out nobody ever came back to them and said "you naughty boys, what did you do, why did you do that?"
CHAIRPERSON: That is not very hard to understand but what happened in Ebrahim's matter, just remind me, I'm not sure?
...(inaudible) hold onto him and then the Ebrahim people had to go to court, a court case to charge him.
MR VISSER: Yes they wanted to him and there was an application for his release and the court said if you abduct a man from a foreign country you can't bring him before my court and say he's here and I have jurisdiction over him, I don't have jurisdiction over him.
CHAIRPERSON: Well then, so in that case they were prepared to stick to the abduction?
MR VISSER: Yes.
CHAIRPERSON: And they tried their best to have the man here, they didn't give him back.
ADV DE JAGER: But wasn't it in the Ebrahim case that there was a dispute, the police said he was arrested within South Africa not in Swaziland?
MR VISSER: It's far more complicated than we've just been discussing here, you're absolutely correct, there was a dispute about that and I believe that, I haven't read the Ebrahim case lately but I think the Judge departed from the point of view that he wasn't arrested lawfully within the Republic of South Africa but he was in fact abducted if I'm not - I may be ...(intervention)
ADV DE JAGER: The other one was the Pillay one, Joe Pillay, he was in fact abducted and kept here for fourteen days or almost a month and then returned later.
MR VISSER: Yes that is correct but there wasn't a court case about him. In that case there was also a protest note and immediately when the protest note came he was sent back.
Chairperson, with respect, we submit to you that even if you say, even if the argument is there was no order and you therefore acted on your own when you decided to hold onto him, we say that in that event still amnesty should be granted for the simple reason that this was the milieu in which the applicants worked, they were there to protect the interests of the government, they knew that Mr Mbali was a very important cog in the wheel and that head office wanted him urgently and seriously and that is why Mr Genis said, he thought that what he was doing, he was doing within his authority and what he did he did as a policeman and from that point of view Chairperson, even if you come to the conclusion that Mr Genis made the decision on his own which we say you can't really make but if you do then we say Chairperson that in the circumstances of the pressures which he experienced at the time and he told you about that, that he acted in a way for which amnesty can be granted by you at this stage.
CHAIRPERSON: But wasn't he saying that he really had nothing to do with this thing, he was just receiving this man so he seems to just have been sort of a conduit really, he didn't form a sort of independent position on this thing, they brought the man to him, he is here, they're looking for him, they want him in Parys, he takes him there and that's it, he's finished with the man?
MR VISSER: But Chairperson, that's the case and that is why I say you can never find that Genis made the decision on condoning or whatever of the - of ratification of it, he was a cog in the wheel and he was acting on instructions from the top. That is our case Chairperson, yes, but even on the alternative we say it matters not and Chairperson, I don't really have anything further to add unless you want to hear me on anything further. We would ask you to grant the amnesty as prayed for, Chairperson.
CHAIRPERSON: Is there any reason for us to be no satisfied that he was assaulted and does it really come into this matter?
MR VISSER: Mr Chairman, it has nothing to do with this matter, if Mbali implicated either of the two witnesses, of the two applicants, then of course the question of full disclosure would have become relevant.
ADV DE JAGER: But they're not asking for assault so if it's proved that they assaulted him then they could be prosecuted.
MR VISSER: Absolutely and in fact that is really the best argument for their credibility which I can put forward, is that if there was any question about them having assaulted them, they would obviously have asked for amnesty for that and they don't. In fact they stick to their guns, they say they didn't and they know nothing about an assault.
CHAIRPERSON: Yes, thank you Mr Visser. Ms Thabethe?
MS THABETHE: Mr Chair I have no submissions based on the fact that Mr Mbali is not opposing the applications of Mr Genis and Mr Schoon unless of course Mr Chair wants me to address you on something?
CHAIRPERSON: Yes, have you got any submissions on why Mr Mbali was returned to Lesotho by the South African authorities? Was it because they were concerned about being embarrassed or was it because they never really wanted him to be abducted because they never authorised an abduction in the first place? If you have any submissions?
MS THABETHE: It would appear, Mr Chair, that besides the reasons furnished by the applicants it's because there was an outcry for him to be brought back to Lesotho and that's the reason why he was brought back.
CHAIRPERSON: ...(inaudible) who the Minister of Foreign Affairs was at that stage? You're not sure? Oh, alright.
MS THABETHE: I can't be of much assistance Mr Chair, I was still very young then, I don't have ......(intervention)
CHAIRPERSON: We won't hold that against you Ms Thabethe.
Yes, I also assume you wouldn't have any further submissions, Mr Visser?
MR VISSER: No thank you, Chairperson.
CHAIRPERSON: Yes, well that concludes this particular matter and we've had the business that we had in this session, we will as with the rest of the incidents that we've heard, we will notify the parties once the decision is available, in this matter as well.
Yes, well that concludes this session, it just remains for us to extend a special word of thanks to those who assisted the Committee in making it possible to have the session.
There is normally a lot of effort and hard work that goes into putting together a hearing like this and we are always grateful to those people, those many, many people who make it possible to do that, those who make their facilities available to us, those who look after the security of the proceedings, all our staff members who exert themselves to make this kind of proceeding possible.
In this particular instance I then ask from the side of the panel to extend a special word of thanks to the caterers who had looked after us over these three weeks, I think they're called Mkwenkwezi Caterers, a special word of thanks to them.
Of course to the legal representatives who assisted us and Ms Thabethe, thank you very much and to the members of the public who had come out to participate in the proceedings because it's a very important aspect of these proceedings, it is important for the members of the public to show an interest in these proceedings and then finally to my colleagues on the panel with me for their assistance. We will adjourn.
HEARING ADJOURNS
