Amnesty Hearings

CHAIRPERSON: Yes. I think at this point I wish to raise something with Mr van Zyl. Subsequent to the evidence that has been led on behalf of the objectors, certain issues came to light which were not put to Mr Erasmus as should have been the case procedurally by the legal representatives of the objectors pertaining to the fires that had occurred prior to this incident. You will agree with me that I think the proper procedure would have been to put those issues to Mr Erasmus whilst he was still in the witness box to give him an opportunity to respond to such issues. But unfortunately this was not done. We would like to recall Mr Erasmus just to clear a few issues in the interest of fairness to his amnesty application.

MR VAN ZYL: Madame Chair, I haven't taken instructions from my client but we've got no objection. I want to put it in the light of his willingness to do full disclosure therefore he is open for any questions.

CHAIRPERSON: Mr Erasmus, you are reminded that you are still under your former oath?

PAUL ERASMUS: (s.u.o.)

CHAIRPERSON: We would like to put a few questions which have become relevant pursuant to the evidence that has been given by the witnesses on behalf of the objectors and this relates, amongst others, to the fire that allegedly occurred in 1986 and in 1987 as well as some other issues which came up as a result of the evidence led by both the nurses and Mr Wilson in particular.

My first question would be were you aware that the Police had attacked the clinic in the year 1986 as well as 1987?

MR ERASMUS: Madame Chair, I vaguely remember that there were incidents prior to the fire bombing in 1989 involving the Police. I wasn't aware of the circumstances but I do recall that there was some situation.

CHAIRPERSON: So you are aware that an attack had been launched by the Police on the clinic prior to 1989?

MR ERASMUS: Not an attack per se, Madame Chair, but there was a situation that had developed. That I remember from discussions with colleagues and it could have been in the press, I'm not quite certain.

CHAIRPERSON: Now when you say situation, what do you mean? What did you understand that situation to have entailed?

MR ERASMUS: I cannot recall any exact details, I did not know that there were previously fires at the clinic. I did not know that the records office had been destroyed. That Alexandra was very much a hot area at that time. There was a lot of political activity, anti-government activity in Alexandra Township.

CHAIRPERSON: Yes, would it be correct to say that to your understanding you knew that some action had been taken by the Police on the clinic?

MR ERASMUS: Yes, I cannot recall details, Madame Chair.

CHAIRPERSON: But you understood that they had done something to the clinic?

MR ERASMUS: No, not that the Police had actually done something to the clinic but there might have arrested people on the premises of the clinic, I'm not quite certain. Day by day there were incidents in Alexandra Township. It was not my brief or part of my work function to keep myself one hundred percent au fait of what had happened in Alexandra. I do recall that there were problems of some nature but the exact nature or details I cannot recall, Madame Chair.

CHAIRPERSON: I think we must just clear the air. I'm actually talking about the clinic as an entity, not Alexandra as a township which was engulfed in some kind of mayhem, that we know, as were many other townships in Soweto as well. Now were you aware that some kind of action had been taken by the Police against the clinic itself, the clinic as a medical facility?

MR ERASMUS: No, I was not aware of a particular action, Madame Chair, absolutely not.

CHAIRPERSON: In what year did you first become aware of the clinic's alleged involvement with the ANC activists, in them having to render such activists medical assistance as well as giving them logistical support?

MR ERASMUS: Madame Chair, the investigation that I referred to conducted by ...(intervention)

CHAIRPERSON: Yes, the intelligence report.

MR ERASMUS: As to the activities of the so-called sanctuary programme, was in late 1970, 1987, 1988. It was the last period of my ten years as security policeman at John Vorster Square as I was transferred, as I mentioned yesterday, in 1989. It would have been 1988 that we received a lot of information about the sanctuary programme and the assistance to insurgents or people on the run.

CHAIRPERSON: Yes. So it between the period 1987 and 1988?

MR ERASMUS: That is correct, Madame Chair.

CHAIRPERSON: And in what year were you part of the briefing sessions that you have alluded to in your evidence in chief wherein the alleged involvement of the clinic was raised by the senior officers who addressed you during those briefing sessions?

MR ERASMUS: It would have been 1988, Madame Chair. In fact I'm certain it's 1988 because of the amount of arrests that were taking place at that time and the operations conducted by the Security Police where lists were drawn up, people were on the run and we were looking at every possible avenues of escape and support that these people would have been receiving from, as we were discussing today for example, the Alexandra Health Clinic.

CHAIRPERSON: Yes. The briefing sessions raised this alleged involvement of the clinic with the ANC activists in quite a number of sessions, am I correct in understanding you?

MR ERASMUS: I'm sorry, I didn't hear the first part Madame Chair? The killing of ANC activists?

MR ERASMUS: The briefing sessions that spoke to the clinic's alleged involvement with ANC activists, was that over a number of months in 1988 or were they just a couple of sessions that reported on this alleged involvement?

MR ERASMUS: Madame Chair, I must just clarify something. Apart from briefing sessions, we were also - a very large proportion of incoming intelligence that we received would have been in the nature of reports.

CHAIRPERSON: Yes.

MR ERASMUS: Obviously co-ordinated by Security Police headquarters and other intelligence agencies where there was an inter-relationship and summaries were drawn up to summarise a lot of information received from a lot of - and a wide variety of different sources so I would have had party to those in the form of a weekly intelligence survey. The information would have been cross-indexed with the work that I was doing then on the church related sanctuary programme where our particular focus was on - at the time one of the instances was the Catholic Church that had a very large - we felt at the time, role in this protection of people that were on the run from the security forces.

CHAIRPERSON: Yes, I understand that but the briefing sessions, over which period did they occur wherein this involvement of the clinic was raised? Was it over a couple of weeks or months in 1988?

MR ERASMUS: Madame Chair, as I recall it was mentioned over a long period of time, I think possibly even going back into 1987. Certainly '88 and yes, 1989 as well.

CHAIRPERSON: And correct me if I'm wrong, both your intelligence reports as well as the briefing sessions you had spoke to the alleged involvement of the clinic with regard to them rendering assistance to the ANC activists as well as providing logistical support? It spoke to those two issues?

MR ERASMUS: Madame Chair, that is correct. I remember that out of all the venues or facilities that were available, we'd identified numerous in the Johannesburg area. Myself and my colleagues on the church side of it had identified, I could name them now. I don't know if it's in the interest of the Commission to hear them, several places and from our colleagues in Alexandra, they had come up with the name of Alexandra Health Clinic. That much I remember.

CHAIRPERSON: Yes. And the sessions that raised the alleged involvement of the clinic did not propose any action at that time?

MR ERASMUS: Madame Chair, certain people in the Security Branch were party to certain information. I personally had been involved, it's in my amnesty application, the bombing of Khotso House and COSATU House. I'd given information and been requested to supply information on other venues which were part of shall we say this list of facilities that were earmarked for destruction. I cannot recall that an actual list ever existed but it was certainly discussed about at great length amongst elements within the security and intelligence community. But I do recall and I accepted it, as I mentioned yesterday, as a fait accompli or just a straight fact that Alexandra Health Clinic would have been one of these places. It was a refuge centre where people were given or could have been given logistical support. I don't know the details but I just accepted it as I mentioned.

CHAIRPERSON: During these briefing sessions did any of the senior officers who presided over these sessions indicate whether any action was being proposed against the clinic?

MR ERASMUS: Not that I'm aware of, Madame Chair, certainly not in my circumstances. It was in - I beg your pardon - in relation to the Alexandra Health Clinic. In other circumstances in which I was a party to and which appears in my amnesty application, I was called in without - obviously to maintain security, on my own by a senior officer who gave me in the typical fashion and a mass of information has come before the TRC in that way, I was told in a round about way to commit a certain act.

CHAIRPERSON: Yes. Thank you very much for your assistance again Mr Erasmus.

MR ERASMUS: My pleasure, Madame Chair.

CHAIRPERSON: Thank you Mr van Zyl.

MR VAN ZYL: As it pleases the Chair, Madame.

CHAIRPERSON: This brings us to the point where we are in a position to hear oral argument. Mr van Zyl, are you in a position to commence or would you like to have a short adjournment to recollect your thoughts pursuant to the evidence that has been led this morning?

MR VAN ZYL: As it pleases, Madame Chair. I don't know what your tea time arrangement is?

CHAIRPERSON: It's almost tea time.

MR VAN ZYL: So maybe we could break for tea and then it serves both purposes. As it pleases you.

CHAIRPERSON: Yes. Can we be back at quarter past eleven? Would that be convenient to you?

MR VAN ZYL: Fine with me, Madame Chair.

CHAIRPERSON: And to the other parties? We'll reconvene at 11.15.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr van Zyl, you will recall that when you started this hearing you moved an application to amend Mr Erasmus' application to include the offence of attempted murder?

MR VAN ZYL: Correctly so, Madame Chair.

CHAIRPERSON: We then gave an indication that we will hold in abeyance our ruling pending the leading of evidence in order to determine whether your application was opposed or not. We are now in a position to give a ruling in respect of that application you moved.

It is the ruling of this Committee that having heard the evidence of Mr Erasmus we are satisfied that Mr Erasmus did not foresee the possibility that persons might be killed or even injured during the execution of the operation to which he partook. Consequently, his application to amend, particularly the offence of attempted murder to be included for his amnesty application, cannot be granted as a result of the fact that he has indicated to this Committee that he never foresaw any possibility of person being killed or injured when he went along with the decision to attack the clinic. That is our ruling.

MR VAN ZYL: As it pleases the Chair. Are you waiting for me to proceed, Madame? With my argument? As it so pleases you.

CHAIRPERSON: Yes.

MR VAN ZYL IN ARGUMENT: I think everybody here today cannot deny that the apartheid regime was an oppressive regime and any form of oppressive regime has a certain amount of paranoia if not a total amount of paranoia on which they based their legitimacy or their actions to uphold their regime. We see it today and we saw it in our own history. We see it in other countries, we saw it in our country and unfortunately, that is the way oppressors operate. Therefore, the Stratcom strategy that my client previously here in this chamber testified about and which I think this Committee has taken judicial notice of by now, if not factual notice, is in line with that paranoia of an oppressive regime. With the result is that the strategy to harass any person that remotely opposes the views of the State is in line with that strategy and in line with that paranoia. I, unfortunately, was also a victim to it, but that is not under discussion here today, but I have sympathy with any person and so does have the applicant with any person that fell foul to that strategy. That is why, if we have to go back to the definition of political amnesty or amnesty in this instance and the political motive, that in itself is the basis for political motive because that was the political motive of the regime and that was filtered down to the foot patrol soldier that even didn't get a direct order, but he just had to carry out what everybody else around him had to do because an offence is not only an act, it is also the omission of an act and if I understand my client clearly, then if he would have omitted in following this strategy, then he would not have followed orders. So therefore, a direct order was not always necessary for the security personnel to follow the intentions of the regime because it's clear that many of the people that were in government at that time will today deny that they knew of direct actions that were taken. But yet we all can guess today, on reading the history and looking at what had happened, somebody had to give the order initially and that alone can be the government and the strategy that was adopted due to their paranoia to bring about or to strengthen their oppressive regime. That is why the applicant is here today, to cleanse himself of as much knowledge that he has about this as he possibly can and I think everybody here can say and not vouch differently that he did and he is prepared and will be prepared in future to disclose everything and all that he does know and he did so here and that is why when Madame Chair wanted a few more questions here towards the end, we had no qualms even to go forward and say let us consult first.

So the political motive of the attack on the Alexandra Health Clinic was in line with the government strategy of the day. It was in line with everything else that my client had direct orders to do, for example the churches. The health clinic was the same. Today we can say but this was an institution that helped people in the daily help of persons becoming sick and ill. But unfortunately, you should know and have taken to judicial cognisance of the fact that the persons running the clinic, although they can today say what relevance is there, my political affiliation?

But coming back to my opening argument, that is exactly the way the government operated, of the day. Any person remotely opposing the government or having a political affiliation that is not in line with the government became an object, not only a subject, but an object of their strategy and therefore I want to say that Paul Mashatili, amongst others, together with Dr Wilson were politically opposing the government at the time and therefore that alone made them and their activities and where they worked a target. I think that is indisputable.

CHAIRPERSON: Is that Mr Erasmus' evidence?

MR ERASMUS: That is not his evidence in total but the inferences can be drawn from the totality of evidence that one has heard over the media and which one has heard here.

CHAIRPERSON: You must remember, Mr van Zyl, the crux of Mr Erasmus' application is the fact that the health clinic was attacked not because of its association with people like Mr Paul Mashatili. That's not his evidence?

MR VAN ZYL: No, that is not so but if you'll allow me, I will broaden and narrow my argument as well to that.

CHAIRPERSON: Yes.

MR VAN ZYL: But the fact is that we have heard evidence here that there were previous attacks also where there was a direct confrontation with the authorities regarding the records of patients. We asked the first witness. Unfortunately, I couldn't at that time ...(intervention)

CHAIRPERSON: Dr Wilson?

MR VAN ZYL: No, no, not the first witness, the first witness of Mr Nyawuza. I unfortunately at that time ...(intervention)

CHAIRPERSON: Tsoeunyane?

MR VAN ZYL: Yes. We asked here about gunshot wounds and she said yes, there were gunshot wound. And it is clear from Dr Wilson's testimony that that would not have been released to the Police and yet it is one of those things that the Police at the time wanted to have, was medical records so that they can get down to who are the activists. So the health clinic ...(intervention)

CHAIRPERSON: That's not for purposes of Mr Erasmus' application.

MR VAN ZYL: No, it's not but that ...(intervention)

CHAIRPERSON: That's not an issue.

MR VAN ZYL: Yes, but then again that is the broader picture, that is what happened in those days. That is why he was a Security Policeman. That is why he got those orders. So in his application, if we have to narrow it down now to the bare basics is that there were, in the briefings, the planning or the mentioning that the Alexandra Health Clinic was a place of refuge. Whether those facts were true or not is irrelevant for the scope of Mr Erasmus. They were led to believe that that is so and on the basis of that, when the day came when this common purpose decision was made, whether at Honeydew or just prior to that, to attack the health clinic, there was no objection on the applicant's part because he was part of the strategy and therefore he committed the act and went along.

CHAIRPERSON: It was part of which strategy?

MR VAN ZYL: The strategy of harassing any person that's politically inclined or anything that is contrary or what the government perceived to be contrary to their policy. It was said that in the briefing that the clinic was a target and therefore, obviously, opposing the government or doing things that the government wouldn't want to be done. Why else would the attack have been launched? Why else would the previous attacks have been launched?

CHAIRPERSON: The previous attacks were launched because of the refusal by Ms Salmon, I think?

MR VAN ZYL: By Dr Sampson - Salmon, she was a lady.

CHAIRPERSON: Who preceded Dr Wilson and subsequently by Dr Wilson to hand over the records. That we know, that sparked the action by the Police. Now the reason, the motive of the attack in 1986 is different to the motive of 1989, is it not so?

MR VAN ZYL: But Madame Chair - no, I don't think so because if we look at the present map or the chart of the clinic, the nurses home then is now the administration block.

CHAIRPERSON: Yes, the motive for the attack was because of their refusal to hand over the records?

MR VAN ZYL: Yes.

CHAIRPERSON: That was the motive.

MR VAN ZYL: That was the motive but if you look at it now and you listen to the first lady's testimony where she said that she said to the doctor "tell us to leave the building, don't fire bomb it." Now I want to make a submission that the inference can be drawn that there were plans afoot already to change it to an administration block at that time.

CHAIRPERSON: But how does it affect the motive of Mr Erasmus?

MR VAN ZYL: Of course, now we're back to records, now we're back to papers, because in the administration block you keep your papers, so that is the motive.

CHAIRPERSON: How is that relevant to the application and the issues that we have to decide?

MR VAN ZYL: Well, there must be - there was a motive for the attack, a political motive in general.

JUDGE DE JAGER: According to the evidence, wasn't the motive in this case to discourage or to break the communication lines and to sort of intimidate them because they were harbouring freedom fighters and activists being wounded? Wasn't that his case which he based this attack, the evidence on?

MR VAN ZYL: Yes, Madame Chair, that's exactly so, that is part of what, my initial, where I came in with my broad argument of the Stratcom strategy of harassing people, of victimising people that opposed the government and therefore, if this harboured people, whether injured or not, and was a communications channel to the insurgents or the activists, then it falls back into the total strategy and that is why I said it covers this whole thing.

CHAIRPERSON: What total strategy are you referring to? Maybe enlighten us more to this total strategy. I must clearly state that I am not with you when you refer to this total strategy.

MR VAN ZYL: Madame Chair, earlier on in the hearings we agreed or it was agreed that we will not go into that history as it is well known to this Committee. Judge de Jager said so at that time and my client has alluded to the general government policy at that time, that was the mind set of the government at the time. That is what we referred to as a strategy in general.

CHAIRPERSON: To act against ANC?

MR VAN ZYL: ANC or any person opposing the government.

CHAIRPERSON: Yes.

MR VAN ZYL: So that is what ...(intervention)

CHAIRPERSON: But within a particular framework, is it not so? And this is the evidence that we now want to hear. We have already heard the evidence within which Mr Erasmus carried out this operation, so to speak. Now you must convince us that he had a motive and that the motive was political and you must be able in your argument to address the political objective which was sought to be pursued by him when he committed the offence and you must be able to address the issue of whether he complies with Section 20.2 to be whether he acted within the course and scope of his employment and whether it was within the scope of his expressed or implied authority. Those are issues we would like to hear about.

MR VAN ZYL: Well that is very simple to say. So it is clear that he was an employee of the State at the time. The evidence is there, it was not opposed. So he worked for the State as a Security policeman or within the Security Branch or whatever they cared to call them at the time, they had so many titles, but we all know that that's unopposed.

CHAIRPERSON: Was he authorised to participate in the decision to attack Alexandra Clinic?

MR VAN ZYL: Yes, in the implied briefings and the information that was supplied by the security fraternity to their different avenues, branches, or what you want to call them and as he said clearly earlier this morning also, although he was not targeted, specifically instructed to act against the health clinic as he had to deal with the churches but because he knew of the briefings and he knew it was a target, so when the decision was made at the time to carry out the attack he fell in line with that decision because of the implied authority that came through the briefings and the general strategy.

CHAIRPERSON: Can one infer that the mere mentioning of the activities of the clinic in the various briefing sessions which took place during the period 1987 and 1988, that on its own gave authority to Mr Erasmus?

MR VAN ZYL: I would argue yes, Madame Chair.

CHAIRPERSON: To decide on the attack?

MR VAN ZYL: Well, although he was not the one who initiated the decision, there is a decision that was made in a group of people at the time. He can't remember who started it but when this decision came about because of the briefings he saw no reason to go against them because of the implied authority that came through the briefings and in general that is how, as he also testified, he got his instructions to attack, say a church for instance, in a roundabout way because nobody would come out straight and say let's do it like that. They wanted a result but the instructions came in a very implied way and that is why this instruction to attack the church.

CHAIRPERSON: Is it your contention that the fact that Alexandra was mentioned in these briefing sessions is sufficient to be interpreted as having given Mr Erasmus implied authority to attack the clinic? Is that your contention?

MR VAN ZYL: Yes, Madame Chair, because that's the reason why he did it. He wouldn't have done it for any other reason, he had no personal gain. He had no personal vendetta.

CHAIRPERSON: But was he sufficiently authorised to act against Alexandra as Mr Erasmus?

MR VAN ZYL: I can see no other way that it could have been for the simple reason that that was part of the briefing. Why were they Security Police? Why were there briefings? Why were there intelligence reports, whether they were correct or not, that is not the argument. Why were they there? To infiltrate and to impress upon the State employee or the lower soldier or the lower officer to execute orders which they presume comes from higher up.

CHAIRPERSON: So any person who attended these briefing sessions had the necessary authority to act against the clinic by virtue of his presence and by virtue of him having listened to the allegations that had been levelled against the clinic?

MR VAN ZYL: Madame Chair, yes it sounds farfetched. But now let's take the further incident. That alone perhaps is not enough, but let's take the further incident. Here you have two senior officers present at a function and he assumes that they are taking charge, he says so in his further particulars. They carried out the attack, Col. van Huyssteen and his staff carried out the attack. So should ...(intervention)

CHAIRPERSON: That's another concern of mine because he says that as a fact in his written application that Col. van Huyssteen and his staff carried out the attack but is it not so that Mr Erasmus is not in a position to know who actually carried out this attack?

MR VAN ZYL: That is true. That is, I would say, an assumption he made at the time because he believes it to be so but in retracting the factual events and so on, we have to concede that he may know but he doesn't factually know it.

CHAIRPERSON: Yes, it would be correct in fact to state that Mr van Huyssteen carried out the attack. There is no evidence to support that version.

MR VAN ZYL: No, there is not evidence but the attack did take place and that we do know through all the evidence we've heard here.

JUDGE DE JAGER: But he went as far as to say Van Wyk and Van Huyssteen were present at the decision making stage. He can't say he didn't see them actually throwing petrol bombs in whatever way the attack was carried out?

MR VAN ZYL: That is what I said, at the time of the function this decision making took place and so on and he just heard it as they were talking that this was the decision that was made and he went along with it, yes.

JUDGE DE JAGER: Mr van Zyl I think the case of Minister of Police vs Gamble, 1979/4 on page 768 may solve your problem.

MR VAN ZYL: If you can help me?

JUDGE DE JAGER: It was stated there that a policeman is always, when acting - when active - well, it's in Afrikaans, I'm trying to translate it now. In Afrikaans it reads

"'n Polisiebeampte is ingers altyd, wanneer hy met polisiewerk besig is, onder die bevel en beheer van sy meedere en dis onder beheer van die Staat."

So if he was busy carrying out police work, he was in fact under the authority of the seniors and thus under the authority of the State.

MR VAN ZYL: Correctly so, Madame Chair, because if you listened to his testimony, as he says, that function took place specifically for the reason that they worked so hard and so on and that was sort of a letting off steam function, that the initial intention was. So it is clear, policemen are, it's well known, I think judicial cognisance must be taken of the fact they are 24 hours on duty. I don't know if it's still so, but it used to be in the days when I was still actively in the courts.

CHAIRPERSON: Well that might be so but I have the evidence before me that the basis on which he carried out this operations was because he knew about the involvement of Alexandra and his knowledge came from the intelligence reports as well as the sessions he attended, the morning briefing sessions he attended, wherein senior officers raised this issue.

MR VAN ZYL: Correct.

CHAIRPERSON: Now I want to know whether he had the necessary authority to act against Alexandra Clinic. I do not have any evidence that Mr van Wyk or Mr van Huyssteen possessed the motive to attack the clinic. Mr Erasmus is in no position to shed more light on that as he cannot remember.

MR VAN ZYL: Correctly so, so we can't argue it further than just that but taking this circumstantial evidence, when this decision was made at let's say Honeydew, if we have to give it a name, he had no reason to go against the decision because all the circumstances pointed to the fact that there was a political objective in doing so. Surely they didn't go out just to throw fire bombs, then they could have thrown a fire bomb at the Carlton Centre at that time for that matter. That is why in this scenario of decision taking, this scenario of information giving and gathering, when this decision was made at Honeydew, he had no reason to go against it. How else could he ...(intervention)

CHAIRPERSON: The evidence does not tell us who actually made the decision. The evidence tells us that he went along with the decision that was made by somebody.

MR VAN ZYL: Correct.

CHAIRPERSON: The evidence does not state that Mr van Wyk or Van Huyssteen made such a decision as senior officers. From the evidence we can infer that they must have approved but whether they possessed the necessary information as to the reason behind taking the decision, whether they knew of the involvement of Alexandra Clinic with the ANC activists in providing logistical support and rendering medical assistance, is something that we do not have.

MR VAN ZYL: And unfortunately we cannot take it further than that because then Van Huyssteen and Van Wyk must come and testify but we can't take it further than that. As he said, that is what happened that night, he was not directly in that avenue of intelligence, he was directed to handle other aspects so he obviously had no way of knowing where the order directly came from but given the scenario, he assumed that there was a legitimate order, a legitimate planning, legitimate in the sense of the political view of the time or of the day and therefore he went along with it. He had no reason to question it. There was no reason for him to question it and had he questioned it, let's imagine that scenario, he would have then be told get in your car and come along.

CHAIRPERSON: What worth should one give to the fact that when Mr Erasmus gave evidence he conceded to the fact that had it not been because of the amount of liquor he had imbibed, this whole decision might not have been taken at all?

MR VAN ZYL: I would say perhaps my client overstretched that scenario a little bit because with it all, the attack did take place. Somebody must have planned it.

CHAIRPERSON: Planned it?

MR VAN ZYL: Yes, somebody must have planned it.

CHAIRPERSON: Prior to the drinking spree?

MR VAN ZYL: Prior to the drinking spree. So this drinking spree, I think, was just a cover up. If I have to give you my submissions, my personal belief and you can strike it from the roll, the evidence if you want, is that there's a core that knew what was going to happen that night and they used this function to get a bigger attraction, to attract more people. It's not evidence but that's my personal belief. As I said, I'm giving my personal belief. But somebody had to take charge.

CHAIRPERSON: Well we don't want to have your view, Mr van Zyl.

MR VAN ZYL: Exactly.

CHAIRPERSON: We want to argue, to give us your argument based on the evidence before us.

MR VAN ZYL: Exactly and that is why I say ...(intervention)

CHAIRPERSON: Yes, you must make your submissions.

MR VAN ZYL: The applicant can't take it further than that, the decision was made but somebody had access to the petrol, somebody threw it, somebody created the fire, of the group that started at Honeydew or prior to that. Somebody was there.

CHAIRPERSON: So we must now speculate and say that this must have been preplanned?

MR VAN ZYL: It is a speculation that can very much be taken for the simple reason that if we don't argue that way are we then saying that this was a drunken party and a brawl?

CHAIRPERSON: We must hear your submission.

MR VAN ZYL: The applicant is saying it was not so. Although liquor was imbibed, they did ...(intervention)

CHAIRPERSON: Mr Erasmus has conceded that it contributed.

MR VAN ZYL: It contributed, yes.

CHAIRPERSON: Yes, to his participation.

MR VAN ZYL: To his participation, yes and perhaps everybody else's participation. But still, the original decision was made by somebody.

CHAIRPERSON: Now where are the facts, from which are we to infer the original decision must have been made prior to the drinking sessions that took place at the sports ground and subsequently at Honeydew? Do we have any objective facts from which we can ...(intervention)

MR VAN ZYL: We do not have that. We do not have that but how far can he take it, how far can the applicant take it, Madame Chair, he cannot take it further. He has given you what he knew, he has given to you what he has seen taken place and we had extra evidence that's come in that corroborates what he actually said, that the fire did take place, people did get injured, though he didn't know it at the time. The time and the date is in the scenario of what he said. So his full disclosure, as much as he knows, as much as he can give this Committee, he has done so. More than that he can't do. Whether the decision was taken rightly or wrongly, he can't take it further but he says it was taken and he went along with it. He had no reason to object to it.

CHAIRPERSON: Yes.

MR VAN ZYL: We cannot penalise him for that. We can criticise but we can't penalise him for that.

CHAIRPERSON: Is it your submission, therefore, that Mr Erasmus simply went along with the flow, as he puts it, himself for the fun of going along?

MR VAN ZYL: That would not be the submission. He went along as backup because they always called upon extras, as he said, to go for backup, so he went along as backup.

CHAIRPERSON: Let's concentrate on that because that's his evidence, I think it's important. Now he was to form backup to this operation. What is your submission, what kind of backup would have been given by Mr Erasmus?

MR VAN ZYL: What the Security fraternity would understand under that, there was no evidence before the court so any submission I would make now is also guesswork on my part but at the time I took my instructions, backup meant that if his help was needed anywhere he would be given an order to do something.

CHAIRPERSON: Yes. His evidence was that he did not have any petrol or petrol bombs. He had not seen any petrol nor petrol bombs amongst his colleagues. Given the nature of the operation, the kind of backup one would have considered relevant would have been in the nature of provision of petrol to make sure that the operation succeeds because the intention was indeed to set it on fire, that was the decision that was taken. Now if he does not possess any of the backup facility, what kind of backup would that have been?

MR VAN ZYL: But procuring items to launch the attack is not the only kind of backup that there is. Backup is there to cover up tracks, backup is there to run interference. Those are thus my guesswork is not evidence. Surely, Madame Chair, doesn't say that only procuring the items to commit the deed is an only form of backup?

CHAIRPERSON: Yes.

MR VAN ZYL: There were six cars. Five of the other cars could have done so. His car didn't do so.

ADV SIGODI: Sorry, and then what about his state of being staggeringly drunk? What kind of backup would he have afforded given his state?

MR VAN ZYL: Well, he was there. His car went there. He didn't make any accidents so surely he was competent enough to execute those minimal deeds which points that he knew what he was about. I can't take it further than that.

CHAIRPERSON: And there is obviously no evidence to give an indication of the kind of backup he would have provided.

MR VAN ZYL: Pardon, I didn't hear you clearly, Madame Chair?

CHAIRPERSON: I'm saying we do not have any evidence to indicate the kind of backup he would have provided. There is no such evidence.

MR VAN ZYL: There is no such evidence, but there was evidence that he went as backup. Now the kind of backup, he wasn't questioned on that and so on, I didn't give any evidence. I have to admit I didn't receive instructions what kind of backup but if Madame Chair wishes to listen to him now we can do so. I have got no objection to that.

CHAIRPERSON: Well that would be unprocedural, is it not so Mr van Zyl?

MR VAN ZYL: For the point of fairness and full disclosure, I don't think ...(intervention)

JUDGE DE JAGER: But didn't he say something about if there was a counter attack or something? He gave evidence about that.

MR VAN ZYL: I must admit then maybe I missed that one and so on but yes, now that you mention it, Judge de Jager, I think you are quite correct and so on, but I missed that one.

CHAIRPERSON: I do not recall that kind of evidence.

MR VAN ZYL: Well, if that is so but as I say, for the point of fairness and for full disclosure he is quite willing to listen to you now, whether it's procedural or correct, I'm the one to object to correct procedure as one party, they may also but if they want full disclosure, everybody wants to know the truth, then we can very well go into that aspect, Madame Chair.

CHAIRPERSON: Yes. The reason why we have legal representatives, Mr van Zyl, and this we have emphasised on many of our hearings is to get the efficient assistance as a panel from the legal representatives. It is your noble duty to give us as much facts on which we can make our decision as possible.

MR VAN ZYL: That is so, Madame Chair, but then perhaps you do not know the background. I was brought aboard only three weeks ago.

CHAIRPERSON: Yes.

MR VAN ZYL: Under severe difficult circumstances with volumes of documents and so on, that I was told there is and so on which I haven't been given the opportunity but I was asked to please be as ready as possible here yesterday which we did.

CHAIRPERSON: If you were not sufficiently ready you should have advised Ms Patel that you are not in a position to proceed so that you do not make it an excuse the fact that you were brought into the matter three weeks prior to the hearing because we cannot accept that as an excuse.

CHAIRPERSON: As it pleases you, Madame Chair, but as I say we don't have evidence of backup, but surely there's judicial cognisance to be taken to the fact that there are many ways of giving backup. Not only prior to an attack but post an attack as well.

CHAIRPERSON: Yes. Does that conclude your submissions?

MR VAN ZYL: My submission is, in terms of Section 20 of the Act, the relevant Act, he complies with all the necessary requirements of being granted amnesty in this specific incident before you now, Madame Chair. Thank you, that now concludes my argument.

CHAIRPERSON: Is it still his contention that he was instructed by Mr van Wyk and Huyssteen?

MR VAN ZYL: The decision was taken, the order was given by somebody for the decision to be taken. If it's directly Van Huyssteen or Van Wyk then let it be so. They were the senior officers present so if it came down from the senior officers then we say yes.

CHAIRPERSON: Well, I'm making enquiries because that's what he is standing in his written application.

MR VAN ZYL: That is quite correct, I know. That is what he did and although his evidence didn't directly point to them specifically, I admit that also. But again, he admits that he was drunk, he can't remember all the facts, he has given the court as much as possible as he could - the Committee.

CHAIRPERSON: Is it not his evidence also that Mr van Huyssteen was attached to a different unit and that he had just been transferred from John Vorster?

MR VAN ZYL: I can't remember that clearly but I do remember that Van Huyssteen and Van Wyk were sort of the one preceding the other or something to that effect. I can't give you now exactly ...(intervention)

CHAIRPERSON: There were senior officers but certainly not in his unit, yes?

MR VAN ZYL: Yes, Van Huyssteen was in command of the unit.

CHAIRPERSON: Of his unit?

MR VAN ZYL: Your unit?

MR ERASMUS: Not of my unit.

CHAIRPERSON: That's the evidence we have.

MR VAN ZYL: Ja, it's not of his unit, ja.

CHAIRPERSON: He was previously in charge of the unit responsible for Alexandra as a township.

MR VAN ZYL: Oh yes, that's right.

CHAIRPERSON: At the time of the commission of this operation he was no longer even attached to that unit. That's the evidence.

MR VAN ZYL: That is correct, yes.

CHAIRPERSON: Yes.

MR VAN ZYL: Thank you.

CHAIRPERSON: Ms Pillay, does it commence with you?

MS PILLAY IN ARGUMENT: Thank you Madame Chair. Madame Chair, the applicant is not here today to cleanse his sole. The applicant is here to apply for amnesty for the petrol bombing of the nurses home at the Alexandra Health Clinic and in doing so he has to comply with each and every requirement that's set out in the Act and each and every requirement has to be specifically dealt with in order to assess whether or not he does comply with the requirements for amnesty.

I'd start off, Madame Chair, with dealing with full disclosure and whether in my submissions the applicant has complied with that, with Section 20.1 (c) of the Act. The onus is on the applicant to show that he meets each and every requirement of the Act, if not only on, by his evidence, but by calling other witnesses to corroborate his evidence or to compliment his evidence where he cannot provide evidence himself.

I submit, Madame Chair, that the evidence of the applicant is at best vague and unclear. A lot of his evidence is based on assumptions and speculation which I submit is not sufficient to fulfil the requirement of the Act. There were no clear facts, Madame Chair, put before this hearing on the identification of Alex Health Clinic as a target by the State. the applicant has been unable to say when was the Alex Health Clinic identified specifically as a target. He has been unable to say why was the Alex Health Clinic specifically identified as a target.

JUDGE DE JAGER: Ms Pillay, could you go a little bit slower?

MS PILLAY: Sorry, I apologise.

JUDGE DE JAGER: Thank you. There was no clear evidence about the identification of the target, I think then you said when it was identified?

MS PILLAY: When the Alexandra Health Clinic was specifically identified as a target for petrol bombing, why was the Alexandra Health Clinic specifically identified for petrol bombing?

CHAIRPERSON: Can I? I appreciate that you draw a distinction between the identification of the clinic as a target and the identification of the clinic as a target for attack.

MS PILLAY: That is correct.

CHAIRPERSON: That's important.

MS PILLAY: That is correct, that's my submission.

JUDGE DE JAGER: Yes, another thing. Have we got evidence that it was indeed a petrol bomb?

MS PILLAY: We don't have evidence from ...(intervention)

JUDGE DE JAGER: Or that even petrol was used?

MS PILLAY: That evidence hasn't been placed before this hearing. I think that we all assumed it afterwards that this was the petrol bomb attack that was being dealt with.

JUDGE DE JAGER: Because we've got not even from the victims' evidence that was a smell of petrol or anything like that?

MS PILLAY: That is correct, Madame Chair.

On prodding from the Chair today and I must emphasise that it was the first time today that we had specific evidence by the applicant that Alexandra Health Centre was discussed at the morning sessions. During examination in chief and during cross-examination it was never once specifically mentioned by the applicant that Alexandra Health Clinic was dealt with in the morning sessions.

CHAIRPERSON: I'm sure you must be mistaken, Ms Pillay. It was mentioned in evidence in chief. If it was not mentioned in evidence in chief then it definitely came out during my questioning of the applicant yesterday.

MS PILLAY: Yes, Madame Chair, my notes on this said that the applicant said it probably was discussed during the morning sessions and never that it was discussed at morning sessions and the applicant indicated that there were intelligence reports on Alexandra Health Clinic but never specifically stated that he had read the intelligence reports himself. He mentioned that he may have heard from his counterparts that there were intelligence reports on Alexandra Health Clinic but there was never clear uncontroverted evidence that he saw an intelligence report, what the date of the intelligence report was and specifically what the content of the intelligence report was.

Further, Madame Chair, the applicant ...(intervention)

CHAIRPERSON: Does it make any difference now that he has somehow remembered that there were intelligence reports which he personally went through? He had remembered the period during which those reports were read by him, 1987 and 1988, because that's the evidence. Whether it came during his evidence in chief of later, that still remains his evidence.

MS PILLAY: I concede Madame Chair that that might be the evidence now. I would like to draw the distinction, though, that that evidence differs from the evidence which we got yesterday, where he was very vague and unclear about when exactly he received the evidence, from whom and how he received the evidence and at this stage, Madame Chair, I am still unclear as specifically what the contents of those reports were and who had compiled them and I think if the applicant is to rely on those reports as support for his contention that the Alexandra Health Clinic was a legitimate political target, then he has a duty to give those facts to this Commission.

The applicant is also unclear Madame Chair about the planning of the attack. He hasn't been able to tell us today when did the planning of the attack start, who started the planning of the attack.

He says that it was probably planned at the drinking spree in Honeydew. I submit, Madame Chair, that probably is not good enough. We need to know who planned it, whose brainchild was the bombing of the Alexandra Health Clinic, when was it planned and what specifically was the plan.

CHAIRPERSON: And whether that person possessed the necessary information.

MS PILLAY: And authority to do that.

CHAIRPERSON: Information with regard to motive for the attack and whether he was authorised to so plan and to launch such an attack.

MS PILLAY: Absolutely, Madame Chair. And finally, Madame Chair, as pointed out by the learned Judge de Jager, the applicant is unclear about the execution of the attack. Who executed the attack, how did they execute it, was it by means of a petrol bomb. We don't know, Madame Chair, those facts have not been placed before this Commission.

CHAIRPERSON: Would that preclude us from deciding his request for amnesty if we do not have facts with regard to how the operation was carried out. Would you in your submission state that that would amount to non full disclosure?

MS PILLAY: I strongly submit, Madame Chair, that it would amount to non full disclosure and that therefore it you would not meet the requirements of the Act.

And finally, Madame Chair, I would like to point out to the Commission that whenever any question was posed to the applicant about Alexandra Health Clinic, the applicant vaguely and generally started talking about the sanctuary programmes and he very specifically mentioned that the only information which he specifically had was about the role of churches within the sanctuary programme and I think that was a clear admission that he had almost no information about the role of the Alexandra Health Clinic specifically within those sanctuary programmes and I'm sure, Madame Chair, that the records will support me in this.

Madame Chair, I think it may be then possible for me to deal with every requirement of the Act and to give my submissions as to whether specific requirements would be met in terms of the evidence that have been put before this hearing today and I'd like to start off, Madame Chair, with the requirement of Section 22(b), that the applicant must show that he acted within the course and scope of his employment at the time when he committed this offence and the question then facing this Commission, Madame Chair, is whether he was acting within the course and scope of his employment or whether he was out on a frolic at the time. And this is made difficult by the fact that the applicant's testimony before this hearing today that he was always on duty. Now Madame Chair, I would like to question that, especially in light of the fact that there were heavy drinking sessions when, on the evidence of the applicant, more alcohol was consumed than some breweries could churn out.

JUDGE DE JAGER: Well I think that was a bit of an exaggeration because I think there is still alcohol available today.

MS PILLAY: The question then, Madame Chair, is how do we know whether they were bona fide employees of the State or whether there were drunken renegades who were fully armed and were just out on a frolic. The applicant's testimony is clear that he drank a lot of alcohol, that he was staggeringly drunk. He may have suggested - and then there's the Cathy Satchwell issue. They were drinking at the Police Sport's Ground, he may have suggested why don't we go and damage Cathy Satchwell's kraal. Six or seven carloads of drunken policemen then proceed to Cathy Satchwell's home. The applicant sits in the car while some people jump over a wall and damage a car. They then proceed, Madame Chair, to even another drinking place where they sit and consume even more alcohol. Someone then asks "Wat gaan ons vanaand doen?" - What are we going to do tonight? It is then suggested by we don't know whom that why don't they go and damage the Alexandra Health Clinic. Madame Chair, in light and then many carloads of even more drunk security policemen proceed to Alexandra Health Clinic. In fact the applicant even gets lost on his way there. When he arrives at the house clinic he finds that it's ablaze. He thinks well, the job is done and he leaves.

Madame Chair, I strongly submit that in light of this evidence placed before the Commission that the applicant has failed to show that he acted within the course and scope of his employment. In fact, Madame Chair, the evidence strongly suggests that this was just a drunken frolic.

JUDGE DE JAGER: Would you say he was so drunk that he couldn't form an intent?

MS PILLAY: Madame Chair, might I answer that with the applicant's own testimony, that had he not been that drunk he probably not would have been involved in the first place.

JUDGE DE JAGER: I say it had an effect on him but if he'd been charged and he would raise the defence of "I was so drunk I didn't know what I've been doing", do you think that would be sustained?

MS PILLAY: Madame Chair, I'm reluctant to speculate on that because the tests leave such a wide discretion on the judge in the particular circumstances to decide whether or not the applicant had criminal capacity, but I would submit that that is irrelevant to the decision of whether he was acting within the course and scope of his employment.

JUDGE DE JAGER: Well if he could form an intent and he formed the intent to go along with the decision made by a group of policemen including senior officers, wouldn't that make him guilty of the offence? I personally don't think he would succeed in saying "I was so drunk that I couldn't form an intent".

MS PILLAY: Well that would make him guilty of the offence, that's correct.

JUDGE DE JAGER: Yes.

MS PILLAY: But I submit that that's not the test for whether or not he was acting within the course and scope of his employment. The issue is really whether he was out on a frolic and on his own evidence the applicant testified that if he was not that drunk, he probably would not have gotten involved in the first place.

JUDGE DE JAGER: He testified that the liquor had an effect on him but not that the liquor had that effect that he couldn't decide whether he would go with or not.

MS PILLAY: That he lacked capacity, that is correct, but he also testified that if he had not consumed that much of liquor he would not have gotten involved in the first place.

CHAIRPERSON: In fact, if all of them.

MS PILLAY: In fact he even went one step further and he said in his belief, if all of them had not consumed that much of liquor, the attack would probably have been better planned or better prepared. Now I would want to submit, Madame Chair, that that raises the question, if all of them had not consumed the amount of liquor that they did consume, would the attack have even taken place in the first place?

JUDGE DE JAGER: Well, the evidence is it would have been better planned.

MS PILLAY: Well, his evidence is that if the whole group had not had that much of alcohol, the attack would have been better planned. If he did not have that much of alcohol, he would probably not have done it in the first place.

JUDGE DE JAGER: Yes but he also said if he received the order by the senior officers, he wouldn't question it, he would go along.

MS PILLAY: But - that is correct, Mr Chair, but it's still unclear at this point whether he received an order. In fact the evidence is on the applicant's own testimony, that he acted without authority on that night, that he had no clear authority to act.

JUDGE DE JAGER: But whether you give an order or whether you say come along with me as a General or a leader, you need not say listen, I order you to come along with me, come along with me, we're going to do this or the next thing. Isn't that similar to what the act suggests would be an order or an approval?

MS PILLAY: Madame Chair, the evidence of the applicant is that he went with the flow not that Capt. van Huyssteen or Capt. van Wyk said come with us because we're going to do x, y or z.

JUDGE DE JAGER: Yes, that's why I asked you whether it could form some sort of intent because if he only went with the flow then presumably he was floating and he didn't make a decision. But here he decided to go with the flow.

MS PILLAY: Well I'm not so sure that that distinction should be drawn, I think the bottom line is that he went with the flow whether or not that constitutes authority is really the question that faces this Commission today.

CHAIRPERSON: What Judge de Jager is trying to find out is whether your submission would still remain that he acted without authority, express or implied if senior officers namely Col. van Huyssteen and Van Wyk had decided that that operation had to be carried out. Would that not give him the necessary authority to participate in that operation?

MS PILLAY: Madame Chair, if the evidence before this Commission was that a conscious decision was taken by Van Huyssteen and Van Wyk, that tonight we're going to bomb the Alexandra Health Clinic, I would concede that that may be implied authority for the applicant to join in but that evidence is not before this Commission today. The evidence before this Commission on the applicant's own version is that he went with the flow and I strongly submit that that does not constitute authority for him to act.

CHAIRPERSON: And is it not true that the evidence or the facts before us are that not Capt. van Wyk or Col. van Huyssteen took the decision that it was a group decision with all the officers being equal to have their decision taken and recognised?

MS PILLAY: That is the evidence of the applicant today, that the group took the decision to fire bomb the clinic.

JUDGE DE JAGER: But on the question of my learned colleague you also stated that if one of the senior officers would have said no, you don't go, he would have obeyed such a suggestion or order or whatever it may be because that was a culture sort of there?

MS PILLAY: I think, Madame Chair, that it's necessary not to view it in the negative but in the positive as to where did the instruction come from and who was the instruction binding on. If the instruction came from Van Huyssteen and Van Wyk, then it would be binding on the applicant but the evidence before this hearing is that it did not come from Van Huyssteen or Van Wyk but it came from the group and therefore there was no authority, expressed or implied.

JUDGE DE JAGER: I've got difficulty with that. If a group of officers would sit there and they decide we do this and the two Generals would not say no, you don't do it, isn't that authority? They're the ultimate leaders, they're the ultimate responsible persons, the senior persons in that group? Didn't they imply authority then?

MS PILLAY: Madame Chair, that kind of speculation would throw up a whole lot of permutations and combinations which I don't think we want to even touch on. Questions are, were Van Huyssteen and Van Wyk present when the group was deciding this? Did they hear the decision that the group had taken? Those kind of facts are not even dealt with by the applicant and I strongly submit that the onus is on the applicant to have put that evidence before this hearing. If not by subpoenaing Van Wyk and Van Huyssteen to say that ...(intervention)

JUDGE DE JAGER: But if it wasn't contested, nobody put it to him: "I put it to you Van Wyk and Van Huyssteen wasn't there?"

CHAIRPERSON: Would you have been in a position to do that because you'd only be able to do that if you possessed the necessary evidence.

MS PILLAY: That is correct.

CHAIRPERSON: That you would then have to lead. If you were to put it to the applicant that Col. van Huyssteen and Capt. van Wyk were not there, those are the facts which are not within your knowledge and therefore it would have been completely out of order and I would have objected if you were to do that unless you were prepared to lead evidence to support what you put to the applicant?

MS PILLAY: That is absolutely correct. And I ...(intervention)

JUDGE DE JAGER: On the other hand - could I just and then you could answer both of our questions. If he said Van Wyk and Van Huyssteen was there or the one or the other was there or both were there and nobody is saying "are you sure?" Why should he call other people to come and confirm it?

MS PILLAY: I strongly submit that the fact that the onus is on the applicant, clarifies this issue to a great extent. The applicant has a duty on a balance of probabilities to put these facts before the court. If he is relying on the fact that the presence of Van Huyssteen and Van Wyk gave him implied authority then it was his duty to ensure that either Van Wyk or Van Huyssteen was present here to give evidence to that effect and that it's not for us to prove his ...(intervention)

JUDGE DE JAGER: Why do you say there's an onus on him? Where in the Act is it spelt out that there's an onus?

MS PILLAY: Well, I think Madame Chair that the fact that the Act has specific requirements for amnesty, that creates an onus on the applicant to meet each and every requirement on the balance of probabilities.

CHAIRPERSON: Yes, to satisfy the Committee that he meets the requirements of full disclosure as well as sub-section 2 and 3 of Section 20 of the Act and I understand what you are saying. What I want to find out is the following. We have evidence that Capt. van Wyk and Col. van Huyssteen were senior officers who were present when this decision was taken, collective decision taken by the officers. We also have evidence that the Police had been involved in very serious drinking. We, however, do not any evidence as to extent of both senior officers' level of intoxication, whether they would have been in a position to make a sound decision befitting a senior officer with regard to the attack. I do not have any facts whether they knew of the involvement of the clinic as alleged with the ANC activists.

MS PILLAY: Madame Chair, if I may just provide some clarification? During my cross-examination of Mr Erasmus, when I established that he was drunk, I specifically asked him was Capt. van Huyssteen drunk and he said yes.

CHAIRPERSON: Yes.

MS PILLAY: And I specifically ask him if Van Wyk was drunk and he said yes and I think, Madame Chair, those two facts as conceded by the applicant also thrown into this whole argument about whether he derived authority from the presence of Van Huyssteen and Van Wyk, further clouds the issue as to whether they were in a position to give authority, given the intoxicated state at the time.

CHAIRPERSON: Also can you address given their state of drunkenness, could they have really had a political objective?

MS PILLAY: Well, my submission would be that firstly they would not have had, I think they would not have been in a position to exercise authority and secondly, if there's speculation about whether they even knew what the political around fire bombing Alexandra Health Clinic would be and that only the testimony of Van Huyssteen and Van Wyk would clarify that and this hearing has not had the benefit of that testimony.

CHAIRPERSON: But does the fact that somebody is drunk takes away his ability to have a political objective if he is aware of the involvement of the clinic with the ANC activists if the clinic has been targeted for attack? The fact that he is drunk, can it necessarily make him incapable of knowing that if he were to make an attack it would be for a political objective?

MS PILLAY: Madame Chair, I think that interpreting ...(intervention)

CHAIRPERSON: I'm not talking about the level of intoxication, the degree of his intoxication, but the mere fact that you are drunk, can that remove your ability to have a political objective?

MS PILLAY: I think that interpreting political objective, we have to do so very narrowly and I think that the issue here is whether, even if they had that information and I strongly submit that that is speculation at this stage, that he had the information. The intoxication would come in at the level where they act on that information and the way in which they act on that information and that goes into proportionality, it goes into gravity and all those other factors as well which I think strongly impact on whether they had a political objective.

CHAIRPERSON: Yes, you have listened to Mr van Zyl and it is his submission that Mr Erasmus had the necessary authority and that he was properly motivated to act against the clinic because of the information which he had, which he had gleaned from the intelligence reports as well as the briefing sessions presided over by senior officers. What is your submission with regard to the fact that not withstanding the fact that he was aware of the involvement of the clinic from as early as 1987 and 1988, no action is taken until there is this drinking session at both the sports ground and Honeydew in 1989? What is your submission?

MS PILLAY: Madame Chair, my submission is that that strongly indicates that there are other motives behind the attack, then a political objective as admitted by Mr van Zyl and that Mr van Zyl relies on the two previous attacks on Alexandra Health Clinic and I think it's appropriate at this stage, Madame Chair, just to distinguish those attacks. The 1986 attack, according to the evidence of Mr Wilson was believed to be an attack initiated by the Police because of this incident around the provision of patient's files of medical reports. The 1987 attack, according to Dr Wilson's testimony, which was not challenged under cross-examination, is that he didn't know who committed the attack and he was absolutely vague as to who he suspected because there was nothing to indicate who would be the suspects of the attack.

JUDGE DE JAGER: He suspected the right wing.

MS PILLAY: He said a possibility might have been the right wing and then he even mentioned that members of the Alexandra community approached him in '87 for medical records and that they had refused. So he had absolutely no idea who might have conducted the 1987 attack. Now in light of that, Madame Chair, it's quite clear on the evidence before this Commission today that despite the fact that they claimed to have had information on the clinic from as early as '87, even before that, that there was no action taken until a drunken spree in 1989.

If I may then address the Commission, Madame Chair, and I would like to just at this stage reiterate what really for me is the crux of this matter. The applicant's testimony that if he had not consumed that much of alcohol he probably would not have gotten involved in the first place. If the rest of the group had not consumed that much of alcohol it would have been better planned, better prepared. I raise the question, would it even have happened at all? Therefore, Madame Chair, the evidence before this hearing is that the attack was not properly thought out or planned, it was executed by a group of drunken security policemen and that it happened on the spur of the moment, that's the other important piece of the applicant's evidence, that the attack happened on the spur of the moment and I think proper judicial notice should be taken of that.

CHAIRPERSON: That's the evidence he led in chief?

MS PILLAY: That is correct, Madame Chair, and it was confirmed from questions from the Chair.

With regard to whether he acted within the course and scope of express or implied authority, Madame Chair, I think I've already addressed this Commission on that.

CHAIRPERSON: Yes.

MS PILLAY: Just to highlight the applicant's own admission, that he had no authority to act on that night. During cross-examination he made that admission.

Madame Chair, I think the next issue I'd like to address this Commission on is whether or not the act was directed at a legitimate target. I submit, Madame Chair, that Section 20.2 (b) requires that the act must be directed at a legitimate political target.

JUDGE DE JAGER: I don't think so. It should be directed at an opponent, that's what the Act says.

MS PILLAY: Well my submission is that that means that it has to be a political target, that the target has to be legitimate.

JUDGE DE JAGER: Yes, but I don't think there's anything like a legitimate target.

MS PILLAY: Yes, alright. It has to be at a political target.

JUDGE DE JAGER: Yes, a political opponent, yes.

MS PILLAY: Right, that is correct. The applicant derives his authority to act, Madame Chair, on a cabinet decision taken to wedge war or conduct a total onslaught against enemies of the State. Now that for me, Madame Chair, is the key. Was the Alexandra Health Clinic an enemy of the State? Now the evidence of Dr Wilson is that the clinic received funding from the State in the form of subsidisation of the nurses salary and I think that is very material. Dr Wilson further testified to the fact the clinic was allowed to buy drugs on a State tender, also indicating State support. The clinic also had close links with Wits University. Dr Wilson testified that the clinic was a training ground for prospective medical doctors, so I submit, Madame Chair, that the close ties between the clinic and the State is a clear indication that it was not an enemy of the State and if it was an enemy of the State, the simple thing would be to cut the subsidisation of the clinic and that was not done. So I submit that the clinic was not legitimate political target and that it was not a political target at all.

Furthermore that the clinic is run by a board that is properly constituted, a board that is constituted by persons by various political backgrounds and persuasions and that in accordance with its Hippocratic oath, the clinic provided health services to all who needed it, regardless of their political background. So it might be, Madame Chair, that there were ANC supporters who were treated by the clinic and that we concede. But in the same breath there were members of the IFP or even security policemen for that matter and Dr Wilson gave very clear and direct evidence on that, that there were Security Police members who were treated at the clinic.

CHAIRPERSON: Soldiers, members of the Defence Force.

MS PILLAY: Soldiers were treated and policemen were treated there so ...(intervention)

JUDGE DE JAGER: Even a private practitioner, if he would only treat ANC people it would be clear but in order to be able to treat them he would treat all people. I mean theoretically now, because that would be the perfect cover in order to enable him to help other people. So it's not excluding the possibility of treating other people but helping people with whom you've got sympathy.

MS PILLAY: Yes. Madame Chair, I submit that that assumes that there is a sinister motive which I submit that Dr Wilson's testimony clearly shows that there wasn't, that they were merely there to provide a health service to whoever needs it and that testimony was born out by both nurses, who confirmed that they treated whoever walked through the doors.

JUDGE DE JAGER: I've got no problem with that, I'm only putting the proposition because that might have been in different circumstances. I'm not saying I'm not accepting Dr Wilson's evidence. At this stage we're only dealing with the perception on the side of the Police because otherwise we don't know what real facts they had about it.

CHAIRPERSON: It's not really a perception is it? From the applicant's evidence he had facts that medical assistance was being rendered to ANC activists.

MS PILLAY: And we submit, ma'am, that that could probably be that medical assistance was being submitted to ANC activists but in the same breath, medical assistance was being administered to everyone, Security policemen, members of the SADF, to IFP persons. But whether that renders them a legitimate political target, that I submit is not the case.

I think then, Madame Chair, it's appropriate to deal with the applicant's argument that the act in question was associated with a political objective because they provided medical and logistical support. We submit that it may be that the clinic provided medical support to ANC activists but in the same breath it provided medical support to anyone from Alexandra Clinic and beyond who needed assistance. Dr Tim Wilson clearly indicated that there was no logistical support being rendered by the clinic to ANC insurgents or any other political organisation for that matter.

And I'd like to highlight again that the applicant talks very generally about sanctuary programmes. He has openly admitted that he's got specific information about churches. In fact he uses the example of the Khotso House bombing and I'm actually quite grateful that he did because for me that highlights the difference between a properly targeted political act and the Alexandra Health Clinic matter. Khotso House was properly planned, planned over a period of time and the applicant himself was involved in the planning. He was able to give us information about the planning of Khotso House but unable to give us information for this act for which he applies for amnesty, that's the Alexandra Health Clinic matter.

JUDGE DE JAGER: But in the Khotso House we had the similar allegation that they harboured freedom fighters and it was denied that there was no actual proof of freedom fighters being harboured at Khotso House.

MS PILLAY: My emphasis in drawing the parallel is on the planning of the attack and I think that's what I'd like to focus on and to draw the distinction to how Khotso House attack was planned and the planning of this Alexandra Health Clinic matter.

JUDGE DE JAGER: I believe you would have the information that it was an unsuccessful attack on Khotso House also, which wasn't well planned and the second one was well planned.

MS PILLAY: Yes and on the applicant's involvement in the planning which he was unable to give us the information on Alexandra Health Clinic in the same way.

JUDGE DE JAGER: Well he didn't plan, it's obvious, he didn't plan the attack on the clinic.

MS PILLAY: That's right but he's here to ask for amnesty and unable to tell us who did plan it.

The applicant's assertion that the political objective was to sever the logistical and medical support rendered by the clinic is rendered nonsensical by Dr Wilson's clear evidence that no such support was being given by the clinic to ANC insurgents specifically and that if ANC activists were being treated it was in the clinic's normal course of events in terms of which it rendered medical assistance to all persons who walked through its doors.

Madame Chair, I'd like to finally just address the Committee on the specific criteria which the Commission has to take count of when assessing whether or not there was a political objective and I'd like to start off with the motive of the applicant in conducting the attack.

There is no clear evidence before this Commission what the motive of the applicant was. The applicant mentioned that he went with the flow, he did not know the specific reason for the attack. In fact his attorney during his closing argument started focusing on the destroying of records because that came out of evidence. So it's quite clear that the applicant didn't know the specific reason for the attack and especially at the time didn't act on that information. He was drunk, he went with the flow and he also relied on vague allegations that the attack was because of the involvement of Tim Wilson and Ilsa Wilson and who he identifies as the suspects and I think that is something the Commission must take into account as well, the identification of Tim Wilson and Ilsa Wilson as the ultimate suspects and that goes largely into the proportionality requirement whether if they were the suspects whether the bombing of the nurses home was excusable in light of that. Then the context ...(intervention)

CHAIRPERSON: Would that necessarily going to the proportionality aspect or would one have to look into sub-section 23(d) with regard to whether the attack was directed ...(intervention)

MS PILLAY: Primarily.

CHAIRPERSON: Primarily at a political opponent?

MS PILLAY: I agree, Madame Chair, that that might be more relevant.

CHAIRPERSON: Don't think we have to go to the proportionality?

MS PILLAY: Then Madame Chair, there's the context of the act. Tim Wilson testified that at the time of the incident, that's in 1989, there was no specific altercations between the clinic and the Security Forces. There was nothing specific that could have sparked off this attack and I think it's important that we take into account that there was nothing that can explain why this particular act happened at the time that it did.

JUDGE DE JAGER: Yes but the context in which - the country's context, shouldn't it be rather looked at as there was a war situation in the country at that stage and now there's an allegation - whether founded or not, let's leave that alone -that this clinic is involved in this war, siding with one of the warring parties. Wouldn't that be the context? Suppose it was true?

MS PILLAY: Madame Chair, I think the issue is then when that information was received, if that information was received in 1986 or 1987.

CHAIRPERSON: 1987 and 1988.

MS PILLAY: Exactly, then how would that bear on the context of this particular act, the narrow context of it occurring in 1989? I think that's an issue.

JUDGE DE JAGER: The war was still going on. Every opponent wasn't attacked in 1986 or 1987.

MS PILLAY: But then it goes to the information would formed a basis of the attack.

MR VAN ZYL: Madame Chair, I wish to at this point - I have to come in at this point. The applicant clearly, on your questions said, right through to 1989 the information was also handed out at the briefing sessions. So he said '87, definitely '88 up till '89, that was his evidence this morning.

MS PILLAY: Well, there's no clear evidence put before this hearing as to what sparked off the attack and I would just like to submit that that must be taken into account when assessing his political objective.

CHAIRPERSON: Yes. You have already responded earlier on to my enquiry whether one can take into account the fact that no action was taken against the clinic from 1987 when this information initially surfaced to 1998 and that the action was only decided upon in 1989 and from the evidence of Ms Ramhitshana, who was the witness called by Mr Nyawuza, she was able to put into perspective the date of when this incident occurred which she put around July or August of 1989, so for the sake of completeness on this issue with regard to the context in which the operation was carried out, would you say it would make an impact, the fact that no action was taken immediately upon the information being known by the Security Police of the involvement of the clinic with the ANC activists?

MS PILLAY: Absolutely, Madame Chair, and I think that it's further crystallised by the applicant's testimony as to how this whole thing came about - "wat gaan ons vanaand doen?" What are we going to do tonight? - that's bomb Alexandra Health Clinic.

And then, Madame Chair, there's the issue of gravity. Although we've been looking at this as the bombing of Alexandra Health Clinic, it was very specifically the bombing of the nurses home of the Alexandra Health Clinic. Now, Madame Chair, I submit that that is absolutely important to look at because it means that there were eight lives placed at risk, inevitably because this nurses home was where nurses were resident and would have been sleeping or probably in the nurses home at the time when the attack was conducted.

CHAIRPERSON: Why should we take particular note of that?

MS PILLAY: Because it goes to the gravity of the offence, to the fact that there were eight lives placed at risk.

JUDGE DE JAGER: Why not eleven?

MS PILLAY: Well, Dr Wilson's testimony was that the nurses home catered for eight at the time.

JUDGE DE JAGER: Yes, but the nurses themselves said there were eleven of them.

MS PILLAY: Can I stand corrected? That's eleven of them, whose lives were at risk, were traumatised and eleven innocent people who were severely traumatised as a result of this. I think that should also be taken into account. It also then moves onto the next issue of proportionality.

CHAIRPERSON: But you are aware of the testimony by the applicant that he did not foresee any person being injured or killed.

MS PILLAY: Madame Chair, with respect, I think the applicant's evidence should be viewed in light of the fact that the applicant didn't even know what was going to be bombed. He didn't even know that it was the nurses college, the nurses home that was going to be attacked.

CHAIRPERSON: He probably even didn't know that a nurses home existed within ...(intervention)

MS PILLAY: Absolutely.

CHAIRPERSON: ...the health clinic, this is my impression.

MS PILLAY: Absolutely, and in light ...(intervention)

CHAIRPERSON: But he did not know, he just thought the clinic was probably a day clinic, it did not have the many other facilities that we heard from Dr Wilson.

MS PILLAY: And in light of the fact that the nurses home was chosen to be petrol bombed and I think that the site map is very important in this regard because it shows the nurses home as not being on the periphery of the complex but right in the middle.

JUDGE DE JAGER: But he didn't choose the target, he obeyed the order or the decision. The joint decision.

MS PILLAY: But that is the target with which he associated himself through common purpose. That was the one which was eventually decided upon.

JUDGE DE JAGER: Yes but if he associated, it didn't mean that you choose a target, you could associate yourself with the operation even if the target was chosen by somebody else?

MS PILLAY: The doctrine of common purpose would mean that the action of the person who chose the target is attributed to everyone else who associated themselves with it and in that way the applicant therefore is associated with the choosing of the target as well and I'd like to submit that that's an important consideration to take into account.

JUDGE DE JAGER: But as far as his evidence is concerned he associated himself with an attack on the clinic and not with an attack - there was no discussion whether it would be the nurses home or not, it would be an attack on the clinic.

MS PILLAY: But he associated himself with the persons who conducted the actual attack and those persons chose which particular building they wanted to attack and in so doing their actions are attributed to the applicant because he took common purpose.

JUDGE DE JAGER: On the criminal law aspect that is so but would that necessarily be in terms of this Act?

MS PILLAY: I think that it should be interpreted that way, Madame Chair, I think it's vital that it's interpreted that way especially in the light of the fact that that's the applicant's reason for amnesty, is because of the common purpose doctrine.

JUDGE DE JAGER: But would it exclude the person from amnesty of the intention of this Act if he in fact associated himself with the whole thing but he didn't realise, he didn't do the reconnaissance. I think, for instance, we had this instance recently, they targeted policemen, they killed his wife and child, he wasn't even there. Would that exclude him?

MS PILLAY: I think the issue that I'm submitting is that this must be taken into account and that the actions of the perpetrators I attributed to the applicant and that the actions of the perpetrators, I attributed to the applicant and therefore must be taken into account.

JUDGE DE JAGER: Yes, no I think it's a factor, it's not a requirement.

MS PILLAY: Yes and therefore it must be taken into cognisance, that this was, the nurses home was not a convenient target because it was not on the periphery of the complex but within the inner circle of the complex and was deliberately chosen and I think that should be taken in account.

CHAIRPERSON: Yes, that on its own cannot be either in favour or against the applicant within terms of the Act. We merely take into account and it is not a deciding factor.

MS PILLAY: What I'm trying to do is merely assist the Commission with what factors should be taken into account when assessing his political objective.

CHAIRPERSON: Yes, that's right. Would you not say on the same issue that it again comes to sub-section 3(d) that the building in fact would not have achieved the political objective that was intended for the attack? If you attack a nurses home, the medical assistance that was intended to be cut and the logistical support that was intended to be stopped would therefore not have been realised?

MS PILLAY: Absolutely, Madame Chair, and again then if you can just juxtapose it with the 1986 attack where the issue was the provision of records and the area of the clinic which was targeted was the records room.

CHAIRPERSON: Yes.

MS PILLAY: I think that just highlights that in fact it was not directed specifically at a political target and in that regard then, Madame Chair, I won't address you on the object of the attack. I think in the course of my submissions to you have covered that it was not directed specifically at the object, the political object of the attack.

And then the issue as to the proportionality, I think the important thing to take into account is the desired aim of the attack and I've highlighted that there was not enough evidence placed before this Commission to convince it that there was no real desired attack, that it was merely just an act perpetrated by a bunch of renegades who had a drunken party, got drunk and said "wat gaan ons vanaand doen?" and ended up bombing the Alexandra Health Clinic. And even on the applicant's version of the desired aim being to sever the logistical and medical supply, I strongly submit that fire bombing a nurses home where eleven nurses are resident is not at all proportional to trying to sever the supply line being provided by the clinic and that if it was an enemy of the State, there would have been less destructive means to do it, for example merely cut off the subsidy, the government subsidy or no longer allow the clinic to buy drugs on a State tender. There were other means of doing it except specifically targeting the nurses home. That's on the applicant's version.

JUDGE DE JAGER: On the other hand they caused damage to the clinic itself. If they've cut, it would have affected the operation but now you had assets being damaged.

MS PILLAY: Yes. Madame Chair, I think the significant part is that they damaged the nurses home, the nurses went to the casualty for medical assistance.

JUDGE DE JAGER: No, but they damaged the assets of the clinic, the institution.

MS PILLAY: Right, but what I'm saying is that it didn't at all affect the ability of the clinic to provide any kind of support whether it be medical or logistical because even the nurses of the clinic first went to the casualty for assistance so it had absolutely no impact on their so-called desired ends.

JUDGE DE JAGER: I accept. If they'd indeed attacked the casualty it should have been foreseen that there could be patients lying there that could have been injured.

MS PILLAY: But if they had attacked the casualty then the issue would have been that that's directly aimed at cutting off the medical, the ability of the clinic to provide medical support.

JUDGE DE JAGER: Yes but I think the one would have been as bad as the other, I don't think you could say they would rather have attacked that proved this or whatever.

MS PILLAY: Yes.

CHAIRPERSON: But what you are contending is that the attack of the nurses home would not have achieved the intended political objective?

MS PILLAY: That's right and it was not proportional.

CHAIRPERSON: It would not have prevented the clinic to further provide the medical assistance it was allegedly providing to the activists as well as giving them the logistical support it was alleged to have given to the activists.

MS PILLAY: That is correct, Madame Chair.

CHAIRPERSON: They would have proceeded to do that because it would not have had the desired effect originally intended for the operation.

MS PILLAY: Yes, that's my submission, Madame Chair. And I think finally, Madame Chair, then if the aim was as we heard from the applicant's testimony, if the aim was to get at Ilse Wilson and Dr Wilson, even then too there would have been less destructive means of doing that and that's by attacking them directly instead of fire bombing the nurses home.

So Madame Chair, my overall submission is that the applicant does not fulfil the requirements of the Act, neither in making full disclosure or in showing that he has a political objective and accordingly that he should not be granted amnesty for the fire bombing of the nurses home in Alexandra Clinic.

CHAIRPERSON: Yes.

MR NYAWUZA: Thank you Madame Chair and Honourable Committee Members. Madame Chair, I think my learned colleague Ms Pillay has addressed most of the issues that I would have wanted to address this Committee on. In the light thereof, Madame Chair, I would respond to any aspect that the Committee would want me to address it on because I think she's addressed most of the aspects that I would have addressed the Committee on.

CHAIRPERSON: Thank you, Mr Nyawuza. Before I go to Ms Patel, I was thinking of giving Mr van Zyl and opportunity to respond but maybe let's give you an opportunity to make your submissions if you have any submissions to make.

MS PATEL: I'm truly indebted to my learned friend, Ms Pillay, for her full submissions to you. I do not believe that there is anything material that I wish to add to that, Honourable Chairperson.

CHAIRPERSON: Thank you, Ms Patel. Mr van Zyl, do you wish to reply to Ms Pillay's submissions?

MR VAN ZYL IN REPLY: I will just respond briefly on a few aspects. My learned friend says there was a sinister motive and there must have been another motive but never was such a question or suggestion made to the applicant. I don't think she can be serious in making the allegation that by withdrawing the funding or that the government will be so obvious in withdrawing their funding from a targeted political opponent. I think it is ridiculous in the least and then furthermore, is she saying that nurses are not an essential part of supplying medical support and by fire bombing their home gives you a dual purpose actually at the end of the day. Thank you, that's all I had to respond to.

CHAIRPERSON: Thank you. This brings us to an end with regard to the application for amnesty by Mr Erasmus in relation to the Alexandra Health Clinic. I must just mention that we are grateful to the victims for having been able to attend this hearing and within the same breath express my gratitude to Mr Erasmus for having expressed his feeling of remorse and convey his apology for his participation in this operation to the victims. I know my colleague drew to your attention and rightly so the fact that it is not a requirement of the Act for you to express your remorse and apologise for your participation in the violation of the human rights of the victims concerned, but I must mention that this amnesty process is intended to facilitate reconciliation to our deeply divided society and sentiments of remorse and apology are encouraged by the panel because we actually go into the real essence of what the work of the Amnesty Committee is all about which is try and reconcile the perpetrator with the victim concerned or the relatives of the victim. I think one may actually take it as a perfunctory action on the part of the perpetrator, but it does magic in most instances when victims hear such expressions of remorse and apology being expressed by perpetrators. To that extent, I am grateful for having made that attempt. That does not, however, mean that the fact that you've expressed your remorse and apology would make your application be viewed favourably. We'll only consider your application on the basis of the evidence on issues which are relevant before us. Our decision in this application is reserved. Thank you for attending.

MR NYAWUZA: Madame Chair, as regards the list of the victims, Madame Chair said I could do that at the appropriate time so am I in a position to do that now?

CHAIRPERSON: Yes, you may hand over the list to our Evidence Leader, Ms Patel.

MR NYAWUZA: Thank you Madame Chair.

CHAIRPERSON: Ms Patel, where do we get to from here?

MS PATEL: Honourable Chairperson, we have a few matters on our roll that relate to Mr Erasmus. However, my learned colleague, Mr van Zyl, has indicated that he wishes to have a brief discussion with me before we proceed with those matters. I see that it is one o'clock now, perhaps it is appropriate that we take a luncheon adjournment and proceed whenever you say it is convenient with the rest of the matters on our roll.

CHAIRPERSON: What time will be most convenient for you, Mr van Zyl, to reconvene?

MR VAN ZYL: Madame Chair, I think let's target quarter past two? Is that convenient? It's one o'clock sharp now, I see.

CHAIRPERSON: Are you not in a position to commence two o'clock at all?

MR VAN ZYL: No, what I'm trying to say, two o'clock would be fine with me in case our discussions will take us a bit further than that, then perhaps we'll inform Madame Chair.

CHAIRPERSON: Shall we then say we'll reconvene at two o'clock?

MR VAN ZYL: That's fine with me.

CHAIRPERSON: If you do experience any problems won't you just alert us to those problems and we'll accommodate you accordingly.

MR VAN ZYL: Thank you so much, Madame Chair.

COMMITTEE ADJOURNS