ADV SIGODI: Could you give us your full names for the record.
ABOOBAKER ISMAIL: (sworn states)
ADV SIGODI: Sworn in, Chairperson. You may be seated.
MR BERGER: Thank you, Chairperson.
CHAIRPERSON: Just for clarity, he's given evidence on the 4th to the 12th of May, was it in his own application? Only to trace the evidence.
MR BERGER: Yes, it was in his application in relation to the bomb in Church Street, Pretoria. And related incidents.
CHAIRPERSON: And the other one?
MR BERGER: And then the other one is the Durban hearings, 25 October to 5 November, that was in relation to the bomb outside the Parade Hotel in Durban, the so-called Magoo's Bar.
CHAIRPERSON: But also in his own application, not in other applications?
MR BERGER: No, in his own.
CHAIRPERSON: Ja, okay.
MR BERGER: In fact, in the Durban one there were a number of applicants, Mr Ismail I think was the first applicant and then I think there were another eight or nine applicants.
EXAMINATION BY MR BERGER: Mr Ismail, as I've already said you've testified a number of times before the Amnesty Committee at some length and it's all been related to your application for amnesty which is now being copied and included in the bundle, do you confirm that the document from page 202 through to 220 is a copy of your amnesty application?
MR ISMAIL: It is, Chairperson.
MR BERGER: Now I just want to highlight certain parts of the application because it really is quite wide-ranging. If I can refer you to page 203. It starts in 1973 when you joined the ANC underground structures at the University of Durban Westville and goes right through to 1991 and then takes over in 1994 when you became a member of the SANDF. Is it correct that you're no longer in the SANDF?
MR ISMAIL: Yes, that is so.
MR BERGER: What's of relevance for the purposes of today is again at page 203, 7(b), during July or August of 1987 when you left Special Operations and you were then appointed Chief of Ordinance, becoming a member of the Military Headquarters of MK. You confirm that?
MR ISMAIL: Yes, that is so.
CHAIRPERSON: Sorry, to where are you referring now?
MR BERGER: Chairperson, I'm referring to page 203, paragraph 7(b) "Capacity". In March 1984, Mr Ismail was appointed the overall Commander of Special Operations and then just below that, July/August 1987 he was appointed Chief of Ordinance.
CHAIRPERSON: Thank you.
MR BERGER: How long were you Chief of Ordinance?
MR ISMAIL: Well from August of 1987 until the integration into the South African National Defence Force.
MR BERGER: Now it's correct is it not, that the specific events that, or specific operations that Mr Rohan testified to are not expressly mentioned in your application for amnesty.
MR ISMAIL: Yes, that is so.
MR BERGER: But you nevertheless seek amnesty in respect of all commands and instructions which you gave as Chief of Ordinance, in infiltrating weapons into the country.
MR ISMAIL: Yes, I must state that I also acted as a member of the Military Headquarters and during my other applications we also at that time, spoke of the Dolphin Unit which also continued to carry out some operations after I became Chief of Ordinance and it was accepted that as members of Military Headquarters, we would continue with carrying out operations wherever necessary or possible. And in the case of Mr Rohan specifically, again I was given the mandate to continue with the overall command of the operations carried out there.
MR BERGER: Now I just want to read into the record of this hearing what is at page 204 of your application. Chairperson, I'm referring to the second last paragraph of 204, which says the following
"I state that the information contained in the application is correct insofar as my memory serves me, given the time period of 22 years covered by this document. I wish to apply for amnesty for all acts carried out by me or those under my command and which fall within the ambit of the Truth and Reconciliation Act. Many of the operations are not listed as I cannot recall all those which were carried out under my command, by various units over the years. In addition to this many of the commands, orders and instructions were verbal, given the extremely tight security situation within which we operated. Under these circumstances it was not always possible or desirable to keep written records."
and then you say:
"I wish to reiterate that I'm applying for all acts, including those which may not appear in this application, which were committed by me and those under my command and which fell under the political authority direction and leadership of the African National Congress and its armed wing, Umkhonto weSizwe."
Do you confirm what I have just read into the record?
MR ISMAIL: Yes, I do.
MR BERGER: You then go on at 205, you say
"This application will deal, insofar as this is possible, with operations that were carried out by units under my command between 1980 and 1987, as well as for my role as Chief of Ordinance from 1987 onwards. I take full collective command and political responsibility for these operations and actions and for the consequences thereof. Individual applications for amnesty will be submitted by operatives who took part in operations, as well as those who provided material for units working within the country. As will be seen in the application, a number of operatives with whom I worked were killed by South African Security Forces. Individual applications for the operations in which they were involved will not be submitted by them. The operations themselves will however be dealt with."
Now again you confirm that?
MR ISMAIL: Yes.
MR BERGER: Now the operations that we are dealing with today, the operations that Mr Saloojee referred to about infiltrating weapons into the country, as well as the specific operations carried by Mr Rohan, those are not expressly dealt with but am I correct in saying that when you refer to operations that are not expressly mentioned, you include the operations referred to by Mr Rohan and by Mr Saloojee?
MR ISMAIL: Yes, I do.
MR BERGER: Why - I know you've said this before at other hearings and you've asked that the evidence that you've given at the other hearings in Pretoria and in Durban, be incorporated as part of your evidence here, but very briefly again, if you could just tell the Committee why was it necessary for you to have this caveat in your application.
MR ISMAIL: Chairperson, my application covers a wide span of activities. In 1978 I was posted to the Funda camp of the ANC and MK, where I was responsible for training and after a short while I became the Chief Instructor there and firstly, I cover an entire period where operatives were being trained and prepared for their missions inside the country, and as such I had to deal with all of these operatives, I was part of their training. It's very difficult for me, and often I don't know of all of these operatives and exactly what operations they carried, I have to apply for amnesty for that. So for my role as being an Instructor, I apply for amnesty.
Secondly, I apply for amnesty as a member of the Special Operations Command which I joined. After I was an Instructor in the camps I came to Mozambique. I came into the country, I did some reconnaissance work inside the country, when I returned I had again - we had decided we shouldn't carry out that operation, I was then placed on the command of Special Operations and as a member of the command of Special Operations, I gave orders, commands, I was part of the planning of the operations. And in 1983 when Joe Slovo became the Chief of Staff of MK, I became the Commander of Special Operations and again I continued with giving the orders and commands etcetera, which is quite widespread.
In 1987 I became the Chief of Ordinance and again continued in that role. In addition, I was ...(intervention)
CHAIRPERSON: In 1984 you became the - after Joe Slovo became ...
MR ISMAIL: The Commander of Special Operations.
CHAIRPERSON: Thank you.
MR ISMAIL: In 1987 I became the Chief of Ordinance and a member of MK Headquarters. And as a member of Headquarters, we took collective decisions about operations that needed to be carried out inside the country and I was also responsible for commanding operatives that had to get weapons into the country and this continued all the way through. Post-1990, with the whole question of attacks that were carried out against our people, I became part of the collective which dealt with the Self-Defence Units and for my role of giving weapons to operatives or members of the ANC in the Self-Defence, I again applied for amnesty.
So the roles that I played were often or most often that of being in a command position, being in a leadership position and as such it's very difficult to pinpoint specific operations as such. I believe that Commanders need to have broad ranging amnesty for what they did, but I apply for amnesty for all of those periods, and that was led at the Pretoria hearing at the outset.
MR BERGER: You've explained that there were so many instructions, so many orders given that it hasn't been possible for you to list everything. I think it's also been led in a number of hearings, that records were not kept, is that correct?
MR ISMAIL: Yes.
MR BERGER: But now if we come to the specifics of today ...(intervention)
CHAIRPERSON: Before we get to those specifics, Mr Ismail, could you perhaps indicate to me what would be the difference between your position, generally speaking as a Commander all over and taking responsibility for all that, and the position of for instance, Mr Modise?
MR ISMAIL: Chairperson, I was at various times specifically a Commander of Special Operations whereas Mr Modise for instance, was the Commander of MK at that time and in some senses it may differ, in other senses it does not because I was also in a similar position to him where I was an overall Commander and I was a member of Military Headquarters, but I was not in MK Headquarters at all times, I was an Instructor and then Commander of Special Operations.
CHAIRPERSON: He was in a similar position as a Commander taking responsibility for what happened under his command.
MR ISMAIL: Yes, but in that sense I also had that responsibility for the time that I was a member of Military Headquarters.
CHAIRPERSON: And your position would also be in a sense, similar to that of say a person like Gen Viljoen.
MR ISMAIL: Yes, I presume so.
CHAIRPERSON: He also applied and took responsibility for what happened under him as a military ... and as a later leader of a section of the political arena.
And Mr Tshwete for instance?
MR ISMAIL: Well Mr Tshwete at some point was also the Commissar of MK for a brief period.
CHAIRPERSON: Ja, thank you. Perhaps Mr Berger, that's the sort of problems that we'll have to deal with in argument, that's why I'm asking about it.
MR BERGER: Well Chairperson, I think it needs to be dealt with also in evidence and perhaps if I could ask Mr Ismail these questions.
You've been asked questions about whether your position is similar to the position of other leaders and in a sense you've said yes, your position is similar, but I want to also ask you, besides taking collective responsibility in a political sense, what about your responsibility for commands actually given by you, instructions actually issued by you? Would it be correct to say, or not, that you were involved in hands-on work, or were you only in a political leadership position or military leadership position?
MR ISMAIL: Chairperson, it is often difficult to distinguish between a hands-on position and an overall command position or responsibility. In my case, in a very hands-on way I instructed people, I trained people. Subsequently I came into the country and carried out reconnaissance. Then I was a member of the Headquarters, I briefed units, I commanded subordinate Commanders or units to carry out certain operations and so, and those are very specific acts, which is why my amnesty application was framed in that way, to cover those specific acts as well. What I'm saying is, I'm not just taking general overall political responsibility, I'm saying there are those things which I had been party to and I had specifically instructed people to do things and for that I am applying for amnesty.
CHAIRPERSON: But you've named them, where you specifically instructed people to do things.
MR ISMAIL: Not completely, in as far as my memory serves me at that point in time. The hearing today is a case in point you know, at that time when we made application etcetera, I didn't necessarily think of every single operation and said well look there's this operation and that, there may be other operations that may come up which will prompt and say well, are you not part of it? But I say that for any of those I do take responsibility, because in a sense I gave orders directly to Mr Saloojee, I recruited Mr Rohan directly, I personally recruited him. And there will be other cases where I personally would have acted in one way or another. Yes, subsequently, after recruiting him I handed him over to Mr Saloojee to command and take charge of, but they were both at all times during the period, under my command and Mr Saloojee would have reported back to me to say, look this is what's been happening and I would then say well, yes continue along those lines.
CHAIRPERSON: But all the people under Ordinance were under your direct command.
MR ISMAIL: Yes, yes, even in the camps where we stored weapons etcetera, they would have been under my command.
MR LAX: But I mean in a sense there's a difference between applying for amnesty for training hundreds and hundreds of people who then go off into the world and you don't actually know exactly what they get up to.
MR ISMAIL: No.
MR LAX: Whereas in this case there may be operations where you gave commands, the details of which you have forgotten and as in this instance, somebody applies that triggers your memory and suddenly you're linked, is that the difference? Say between you and someone like Mr Modise, whose amnesty application didn't deal with particulars and details of individual operations. So at that level, that's a fundamental difference between you, whereas at another level, yes, you are also globally and politically responsible as one of the leaders of the "struggle".
MR ISMAIL: Mr Chairperson, it's very difficult to distinguish between all those different roles. Again in Mr Modise's case he may have directed given orders or commanders, in other cases he may have given orders through other people, or he may have caused something to be done. It is very difficult you know in this case to sort of say exactly an amnesty application had to be framed on one way or another way.
MR LAX: You see the crucial detail here, and this is really what you're evidence is about, is what was your intention when you applied for amnesty? Were you making a symbolic application or were you making an application in which you wanted to take responsibility for things that you did?
MR ISMAIL: Mr Chairperson, my intention was to take responsibility for the things that I did, that I was responsible for and for all the acts carried out by people under my command. That where political responsibility also comes out from the actions that flow from these activities, I also take responsibility for. But it's broad, it's holistic. You know it's very hard to separate out one from the other. But I must state that this is a very specific application and I say I take responsibility for the things that I did.
MR BERGER: And that's why at the bottom of 204, as I've already read out, you said
"I wish here to reiterate that I'm applying for all acts including those which may not appear in this application, which were committed by me."
MR ISMAIL: Yes, that is the intent.
MR BERGER: Chairperson, I overheard that you mentioned the application of Brig Schoon, but the - and I've had occasion to look at that application because it came up in another hearing, and the difference between that application and Mr Ismail's application is that in Brig Schoon's application he said "I'm applying for these acts, twenty acts" and that was it. And the ruling of - then subsequently his memory was jogged and there was another incident that he then wished to apply for. I'm not going to argue whether the ruling is correct or not, but I'm going to argue that the ruling is distinguishable in any event, because in that case the Committee ruled that there was no framework in Brig Schoon's application by which any incident other than the twenty that were listed there, could be brought into account. He didn't expressly manifest an intention in his application like Mr Ismail has, to say that "I'm saying at the outset that I'm applying for amnesty for all the acts committed by me in the various capacities in which I acted and I'm stating at the outset that there are many that I cannot recall, but I intend to include those in my application." So that's the distinguish ...(intervention)
CHAIRPERSON: That was my problem in saying how could a Commander know, he's saying "Go out, implement the policy". He wouldn't even know whether Mr X or Y put the explosives next to the telephone pole or what happened.
MR BERGER: No.
CHAIRPERSON: And that's the difficulty we had in other applications.
MR BERGER: But he does know, and on the basis of the doctrine of common purpose he's drawn in. He does know, he says "I am ..." - for example, let's take Ordinance, he's saying "I am infiltrating weapons into the country and I intend for those weapons to be used, I don't know exactly where or when or how, but I intend for those weapons to be used against military or Security Force personnel targets and buildings and I expect that, or I foresee the possibility that civilians might be killed as a result and I anticipate that people are going to be injured or killed." He may not know what ultimately happens but his intent is clear to cause that result. Maybe not in relation to that specific person, but to someone in that position. And for that, that is an offence or a delict which he is personally liable for, even though he may not know what the end result is, but he intended that result.
CHAIRPERSON: Ja, but that's my trouble with for instance, this decision.
MR BERGER: Which decision?
CHAIRPERSON: The 37 decision, I would say.
MR BERGER: Well the 37 decision, there on their own case they were out of court, because you'll recall there's the letter that the ANC sent and in that letter - if I could just get to it, they say at page 9 of the decision, at the bottom
"Accordingly, the list of 29 cover the period 1960 to 1994 and included people who had been members of various Committees of the ANC from the NEC downwards. Further, the group was also selected on the basis that to the knowledge of the ANC, none of the people on its list had been involved in any individual action or actions for which they would require to apply for amnesty. From the aforegoing it should be clear that 29 would not be able to answer any questions which they sought to establish the specific acts for which they were applying for amnesty since there are none."
and then a bit further down, the underlined portion:
"The ANC would be willing to join these to the 29 after having established in each case that the persons involved meet the criterion, that they have no need to apply for amnesty for any specific act."
Now that is not what we're saying here, we are saying here that Mr Ismail committed certain acts, most of them are - well I can't even say most ...(intervention)
CHAIRPERSON: ...(indistinct) defined.
MR BERGER: Many of them are defined but many of them he can't detail or list, but he's saying "I committed those acts, I infiltrated weapons, I ordered people to infiltrate weapons into the country, which ultimately were used for certain operations and it is for that act of ordering and that liability that ultimately attaches to me, that I seek amnesty." Which is completely distinguishable from the 37.
CHAIRPERSON: Thank you.
MR BERGER: Mr Ismail, we've gone far and wide and we've covered a lot of what's in your statement. Before we get to Mr Rohan's specifics, you heard the evidence of Mr Saloojee about how weapons were infiltrated into the country, and we will get the list from Mr Saloojee before the end of the week, but could you just explain how you fitted into the picture as Chief of Ordinance. With the infiltration of weapons and ammunition into the country, how did you fit into the picture and into the chain with the sketches?
MR ISMAIL: Chairperson, if I may just clarify. Do you want me to explain generally how Ordinance worked, or do you want me to explain how I fitted in in that specific case?
MR BERGER: I want you to explain how you fitted in in those specific cases.
MR ISMAIL: Chairperson, firstly I would direct the type of material or weapons and ammunition that we sent into the country. This I would glean from a general understanding or an understanding of the requirement of the Headquarters and possible plans that they had, or in some cases generally the kind of thing that we thought may be required from time to time. On the basis of that I would then give instructions to the units in the forward areas to infiltrate the weapons into the country. In the case of Mr Saloojee I would say to him send in the following kinds of material etcetera. Often we would be confined by space considerations etcetera, but we would then say okay, let's give them broad guidelines to say look, get specific equipment into the country. They would ...(intervention)
CHAIRPERSON: Sorry. Then you're receiving instructions from Headquarters that a certain type of weapon should be imported or exported into the country and then you give instructions to your subordinates and they carry out the job?
MR ISMAIL: Yes. They would then get the units to bring the weapons in. And these transfers would have taken place in the way it has been described, in caches or something, then in other cases they would have been through transfers to other units inside the country who would then have cached them and sent the sketches out, or in some cases there were transfers to units directly. But in as far as I recall for Saloojee, by and large it would have been people that would have made sketches, the sketches were then sent out to him and these sketches were then passed on to me. We would then keep them ready, we would report to the Headquarters about the kind of sketches we had available and when the need arose, these would then be passed on to the Chief of Staff or the Chief of Operations, to then hand to any unit. This would of course have been transferred through their command chains.
MR BERGER: So in other words, once the sketch left your hands it was passed on, you then had no more to do with how the weapons were ultimately used?
MR ISMAIL: Except in as far as I was a member of Military Headquarters, I often - I knew of the nature of the units that were operating and the kind of operations that they then carried out.
MR BERGER: But you were not involved in those operations afterwards.
MR ISMAIL: I did not direct command those units except in the case of Dolphin or Rafiq, etcetera.
MR BERGER: Ja. No, Dolphin and Mr Rohan are specific instances, other than that you were not involved in the operations.
MR ISMAIL: No.
CHAIRPERSON: But on the same basis then, if he foresaw that these weapons could be used, the chain hasn't been broken, he still foresees.
MR BERGER: Indeed, and that's why he has to apply for amnesty.
CHAIRPERSON: Even if it happens, it's not out of his hands. The moment he hands over the sketch he knows that that sketch would be used for the commission of some or other delict or offence.
MR BERGER: Absolutely, absolutely, and that's why he has committed acts for which he has to apply for amnesty.
MR ISMAIL: Chairperson if I may, technically, and that means that my application would be that any of the operations carried out by the ANC and MK during my time as a member of the Military Headquarters and as Chief of Ordinance, I apply for amnesty for all of those. Technically that is the requirement.
CHAIRPERSON: Technically it's my problem that that would bring us back to the other people mentioned.
MR BERGER: The 37?
CHAIRPERSON: Ja.
MR BERGER: But their problem is the way they framed their application. That's their ...(intervention)
CHAIRPERSON: Right okay, we'll leave that for argument ...(indistinct - no microphone)
MR BERGER: Mr Ismail, that in general is how you operated with Mr Saloojee in Zimbabwe, but now I want to turn to a specific case of Mr Rohan. You've heard the evidence again of Mr Rohan and Mr Saloojee, you've read their statements as well, as you say in your statement in paragraph 3, and you confirm not only that their statements are correct, but do you also confirm that their evidence insofar as it relates to you is correct?
MR ISMAIL: Yes, I do.
MR BERGER: Very briefly, could you just tell the Committee what happened, how you recruited Mr Rohan and your specific involvement in his operations.
MR ISMAIL: I met Comrade Rafiq Rohan when he accompanied the NIC and TIC delegations to Lusaka. I was part of the ANC delegation which met with them, and during that time we got to chatting about operations, we discussed on various occasions what we were doing and how operations were carried out and Comrade Rafiq then expressed an interest in doing more for the struggle, he saw himself as being someone who wanted to do more for the struggle itself.
I was constantly on the lookout for potential people who we could recruit for the armed struggle or into the ANC generally and I then through the discussions, put it to him that perhaps he should do some work with regards to taking weapons into the country as part of Ordinance. Comrade Rafiq then said to me, but you know, he wanted to do more than that, he wanted to be a combatant, he wanted to involved in the carrying out of those operations.
We spoke and I said to him look, it was not an easy thing, that it was a commitment and he should go and think about it. He said to me no, he was sure of what he wanted to do, but I said to him "Nevertheless go back and think about it, I don't want you to feel pressured on the spur of the moment", and we would be in contact. And if he agreed within about two weeks time, I arrange that - if he was interested, he would arrange to come out, if he was not interested he would say well he was not able to come out anymore and was not interested and that would be it, there would be no further contact in this regard.
When I contacted Comrade Rafiq he then said, he indicated he wanted to come out and wanted to pursue the discussions. We arranged for him to come out and at the time we met I was accompanied by Comrade Kelvin, we went to a hotel where we then had further discussions. I then expressed to Comrade Rafiq that whilst I have discussed this matter with Comrade Chris Hani and others at Headquarters, it was agreed that I would take charge of these operations, because Comrade Rafiq said he wanted to specifically work under me as he had confidence in me. He read or knew about the kind of work that I, because my name had appeared in the papers on various occasions ...(intervention)
MR BERGER: And had you as a fact discussed Mr Rohan's request with Chris Hani?
MR ISMAIL: Yes, I said that he wanted to be involved in military operations or conduct of operations as a combatant and generally we all felt yes, that was good because that is exactly what we wanted, that was the end that we were all working towards and if he wanted to do that, then we agreed upon it. I also said look you know, it wasn't strictly within my role as Chief of Ordinance and he said ja, but, you know we agreed that I would do that, I would continue to command the operations. We then discussed that I would get Comrade Kelvin involved to do the direct linking with him and command the operations himself.
MR BERGER: And Chris Hani at that stage was Chief of Staff of MK?
MR ISMAIL: Yes, because Comrade Joe Slovo had moved on and was in fact in the Party.
MR BERGER: Alright. So once you got the go-ahead from Military Headquarters, that this arrangements was approved, you then set up a meeting with Mr Saloojee and Mr Rohan in Harare.
MR ISMAIL: Yes, we had asked for Comrade Rafiq to come out. I then linked him to Kelvin, I then said to him look, I wasn't able to keep in touch with him on a day to day basis, I was in Lusaka, often telephones were monitored and it was better that he linked with Comrade Kelvin. I was also travelling a lot, I was moving around the front line States to quite some extent and that Comrade Kelvin would take direct charge of it and I would be supervising the activities of Comrade Kelvin. However we agreed that if he had any difficulty in the future he would then raise that with me.
MR BERGER: And was Mr Rohan happy with this arrangement?
MR ISMAIL: Yes, he indicated he would go ahead with it and if there were any difficulties he would raise that with me.
MR BERGER: Alright. After that you say that you received - this is in paragraph 6, you say you received regular reports on his progress from Comrade Kelvin. Were you kept up to date with what operations he was to carry out and what operations he had carried out?
MR ISMAIL: Yes. If I may, I think after the initial meeting between the two of them, I think I only met with Comrade Rafiq one other time, but that was before any of the operations were carried out and I then asked him if he was satisfied with the training he'd received and he felt happy and ready to go into operations, he indicated yes, and subsequently Comrade Kelvin reported to me about the operations that were carried out and we were happy with the operations that had been carried out.
MR BERGER: Mr Ismail, is there anything further that you wish to add, because I have no further questions for you?
MR ISMAIL: No, nothing.
MR BERGER: Thank you, Chairperson.
NO FURTHER QUESTIONS BY MR BERGER
CHAIRPERSON: Ms Patel.
MS PATEL: No, thank you Honourable Chairperson.
NO QUESTIONS BY MS PATEL
CHAIRPERSON: This was a special occasion, that was the only one where you commanded sort of military operations in the sense of on the ground attacks?
MR ISMAIL: Chairperson, after I became Chief of Ordinance, prior to that, if you recall I was Commander of Special Operations, so ...(indistinct) But since then, no. There also was the issue of the Dolphin Unit and the Dolphin Unit again, there was ...(indistinct) special arrangement. Those were people who were very close to me, it was agreed by Headquarters that they continue to operate under my command, that they continued to carry out some operations and after which they then were switched to Ordinance work, but that took some time.
CHAIRPERSON: Ja. So after you've been in charge of Ordinance, the only sort of on the ground military operations you were involved in was this one and the Dolphin continuation?
MR ISMAIL: As far as my memory serves me, right.
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ON RESUMPTION
MR BERGER: Chairperson, if I could just tell you that at the Pretoria hearings one of the annexures that was handed in, dealt with the activities of the Dolphin Unit. So it's already part of that record. Yes, it was Annexure D in fact, to the statement that was handed in in Pretoria. If you want we have a copy of that statement, we could have copies made and hand it to you now.
CHAIRPERSON: We'll consider it and tell you whether it's necessary to have copies made.
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ON RESUMPTION
MR BERGER: We have no further evidence. That is the case for the applicants.
WITNESS EXCUSED
MS PATEL: There is no evidence that I wish to lead, thank you Honourable Chairperson.
CHAIRPERSON: Mr Berger, perhaps we could hear argument now or if you want to argue later it's another thing, but maybe you'll be able to finish before one.
MR BERGER: We can, Chairperson, I really don't have much more to add.
Chairperson, I'm going to deal with the applicants in the order in which they gave evidence.
CHAIRPERSON: I'm speaking for myself, as far as - and my colleagues can say whether they agree, I don't think it's necessary for you to labour on the arguments concerning the two applicants, the first, my only trouble is the fact whether we're granting amnesty for something that's not been applied for. That's what's troubling me at this stage. As far as Mr Saloojee is concerned, he referred in his application to the application of Mr Rohan, so that's incorporated there, it's not something that he's adding now that's not been referred to. So I'm satisfied that in fact he referred to ...
MR LAX: I'm happy as well.
ADV SIGODI: I'm happy as well.
MR BERGER IN ARGUMENT: Alright Chairperson. Thank you, Adv Sigodi. That makes my argument even shorter. I'm then just going to deal with ...
There is an element of Mr Saloojee's application that is akin to Mr Ismail's, although it is mentioned specifically at page 9 of the bundle, Mr Saloojee says, he talks about operatives who worked under his command during the period 1988 to 1990, and he told you this morning that his intention is to apply, it's always been to apply for amnesty, not only for the specific operations of Mr Rohan, but also for operatives who acted under his command who brought weapons, infiltrated weapons into the country.
He talks about being the Regional Commander responsible for internal ordinance and in military terms as I asked him, ordinance means the hardware, the infiltration of weapons into the country. And my submission is, and it's going to be my submission for Mr Ismail as well, and that is that the Act created a cut-off date for applications for amnesty and it dangled a carrot in front of people to entice them to come forward and apply for amnesty and it said "if you come and apply for amnesty and you expose your role, then you will be amnestied, you will be rendered immune from civil and criminal liability if you do that."
CHAIRPERSON: If he's been granted indemnity do you know whether that also included the, call it the illegal carrying of weapons or bringing in weapons into the country?
MR BERGER: I don't, I don't, Chairperson.
CHAIRPERSON: Because if that's been included, we're bound by that decision in accordance with the Act.
MR BERGER: Yes. I don't know if it extends to civil liability as well.
CHAIRPERSON: Ja, it extended - the previous ones also included civil ...(intervention)
MR BERGER: The Indemnity Act extended to civil ...
CHAIRPERSON: It didn't include the expunging of the record.
MR BERGER: Of the record.
CHAIRPERSON: But there's no record to expunge here.
MR BERGER: I don't know, Chairperson, but my argument goes wider, it incorporates both Mr Saloojee as well as Mr Ismail, and that is to say one has to look at the spirit of the legislation and what was intended. Clearly people who didn't apply for amnesty before the cut-off date, they missed the boat, but someone who comes forward and says "I was a Commander of MK during the period of the struggle", or like Mr Saloojee says "I was based in Zimbabwe and I was the Regional Commander responsible for the internal Ordinance section and there were operatives working under my command", anyone who knows anything about the history of that period knows exactly what that means, knows that that means that I commanded units who infiltrated weapons into the country for the purposes of carrying out attacks in which people were going to be killed. Bluntly put, that's what it means. And someone like Mr Ismail who says "This is my history. From 1973 to 1994, this is what I was doing, I was in the command structures of Umkhonto weSizwe. First Special Operations" - well I'm using shorthand because it's all there, "and then Ordinance." The whole point of MK was to wage an armed struggle against the apartheid State to attack Security Force targets, personnel, during which people were going to be killed. It's - I think the Afrikaans is "selfsprekend", it's so obvious that that is the ... And Mr Ismail and Mr Saloojee, they come forward and say "This was my role during the struggle and I'm applying for amnesty."
My submission is that it would be a very narrow interpretation of the Act to say that because you did not give a definitive list of the operations which could be attached to your name, you can't come and give further particulars at a later stage. In fact, the Act makes provision for the furnishing of further particulars. Section 19 I think it is.
CHAIRPERSON: But weren't further particulars asked? In the sense of "Tell us what you've been doing."
MR BERGER: Well not in relation to everything, no. For example ...(intervention)
CHAIRPERSON: Well you can't ask for particulars if you yourself don't whether they were involved in a certain incident, you can only ask if there's some reference to an incident.
MR BERGER: Well that's the problem with people in command positions. You know, for example I can refer you to the ANC's submissions ...(intervention)
CHAIRPERSON: No, I appreciate the problem there, it's a very practical problem but it's also a legal problem and how to link the two.
MR BERGER: At the start of Appendix 4, the list of MK operations in the submissions dated the 12th of May '97, the ANC say
"Please note that the information in this list was drawn from press reports and annual surveys of the Institute of Race Relations. These are not MK records. There are probably omissions and errors due to censorship during the apartheid era and other difficulties in collecting information of this nature."
Then we know that MK did not keep detailed records. So we've got the problem where, and it's a practical problem, where the intention, clearly, of the legislation is to encourage people to come forward to say whatever they can say about their activities during the period. But once they have come forward and once they've exposed themselves, if they get reminded of something that they forgot to mention, they cannot get amnesty for that. And that in my submission runs totally contrary to the spirit of the legislation.
MR LAX: Mr Berger, just to play devil's advocate for a minute, let's say you're Brig Schoon ...(intervention)
MR BERGER: Hypothetically speaking.
MR LAX: Ja. ... and this is your application, in your case, in this context, your misfortune is that you forgot to put a caveat in. Does that necessarily still measure up to the broad spirit of the statute?
MR BERGER: No. Mr Lax, seeing as though you asked for me to make a submission on that ruling, I've submitted to you why it's distinguishable, because of the lack of the caveat, but I submit that that ruling is wrong. And I submit with respect, that Brig Schoon ought to have been entitled to raise the additional incident, because the Committee accepted, if I remember that ruling correctly, the Committee accepted that he was bona fide and that it was an incident that had totally slipped his memory.
And again, if one has to argue from his point of view, he comes forward and he says "I was the overall Commander of Vlakplaas." Now from what we know about what happened at Vlakplaas, the overall Commander of Vlakplaas was involved in illegal conduct day in and day out and yes, there are things that probably slipped his memory and I would never be able to argue that it was the intention of the legislature to exclude one of those events from his entitlement to amnesty. He came forward, he said "I was the Commander of Vlakplaas", and if this was one of the things that Vlakplaas carried out and which he genuinely forgot about, which was the finding, he shouldn't be denied amnesty for that.
ADV SIGODI: Just on that question, what do you think would be the position of an applicant like Mr Ismail if now after the whole process has been finished, then certain acts are now discovered afterwards, which the applicants in those matters have not applied for, where would that put them?
MR BERGER: I'd like to refer to a recent judgment or decision of the Amnesty Committee in the case of Gen Nyanda. It relates to the hearings which were conducted in White River. There were three applicants there, there was Gen Nyanda, there was Gen Shoke and there was Sgt Mkhonto, and it concerned Operation Ketchwayo, which was the landmine operation in the former Eastern Transvaal border, and on the 22nd of June, in fact last week, the Committee handed in its decision granting amnesty and I submit that the way in which the Order is framed is proper and takes account of the problems, Adv Sigodi, that you raised. There were certain landmine explosions that were at issue in that application, but Gen Nyanda said, as Mr Ismail says, he said "There were a whole lot of orders that I gave during that period and I can't tell you, I can't list them all for you because I simply do not know all of them, but I know that I commanded Operation Ketchwayo, I know that I instructed units to infiltrate the country and to plant landmines wherever they considered it appropriate within the broad guidelines of the ANC's struggle." So the Order reads that
"Amnesty is granted in respect of all offences, delicts and acts or omissions committed and directly arising out of the activities of Operation Ketchwayo, during or about 1985 to 1987, at or near the Eastern Transvaal border, including the following landmine explosions: ..."
and then they are listed. So the point is it's not limited to those landmines, it includes all offences, delicts, acts or omissions related to that operation which spanned a period of over two years, called Operation Ketchwayo. And that I submit is the proper way of dealing with this problem.
Here Mr Ismail says "I was Chief of Ordinance during this period and I committed certain acts which amount to offences or delicts because I instructed people to go into the country and I knew what it was going to be used for and it is for that which I seek amnesty." So you don't have to have a closed list and so that problem can be dealt with, I submit, in this manner.
MR LAX: So basically, somebody seeking to claim amnesty would have to be able to prove to whatever forum they found themselves in, that they fell within the parameters of that order.
MR BERGER: Exactly, yes.
CHAIRPERSON: But it's limited to Ketchwayo, not to other landmine incidents.
MR BERGER: No, Ketchwayo was an operation which spanned a period of two and a half years in a particular area, that was what Gen Nyanda gave evidence about, that particular area. His operation did not span the former Northern Transvaal, so yes, in a sense it was limited, but a similar order could be drafted for the purposes of Mr Ismail's application. It's covering a period, we're talking about ...(intervention)
CHAIRPERSON: But didn't Gen Nyanda ask amnesty for Operation Ketchwayo?
MR BERGER: In his original application?
CHAIRPERSON: Ja.
MR BERGER: No, in his original application he said two things, he said "I'm applying for amnesty for the role I played as a Commander of MK." That was in the one section and then in the other section, when he was asked about acts for which he sought amnesty, he said "I refer to these two documents, the ANC Submissions dated 12 May '97 and August '96, and he said "for further particulars."
And then when he was asked for specific ...(intervention)
CHAIRPERSON: So he included every incident?
MR BERGER: Every incident, yes.
MR LAX: Didn't he have a caveat of some description?
MR BERGER: In his original application he simply referred to these documents, in his further particulars he said "I'm going to now try and list the specific attacks that I can recall, but again I must say that it's not full and complete." But that was only in the further particulars.
MR LAX: Just as a matter of interest, because this is something that someone might argue, when were the further particulars submitted?
MR BERGER: The further particulars were submitted after the cut-off date.
MR LAX: And that Panel obviously gave that decision?
CHAIRPERSON: Well I suppose it was even asked after the cut-off date, in all probability.
MR BERGER: It was requested after the cut-off date. Ms Patel was in fact the Evidence Leader in that application. I could hand in a copy of the decision, perhaps we can make copies and hand them in at the close of proceedings.
CHAIRPERSON: We're always keen to say we're not bound by precedents. Thanks Mr Berger, we do appreciate it.
MR BERGER: Thank you, Chairperson.
Well that then - I've already argued about Brig Schoon, the difference between his application and Mr Ismail's, as well as the fact that I submit that that decision is wrong. And then as far as the ANC 37 is concerned, because the fear is always that the Committee is being asked to grant blanket amnesty, that's always the fear and blanket amnesty in my submission, is the kind of amnesty that the 37 sought where ...(intervention)
CHAIRPERSON: So they've made - on behalf of the ANC, they've presented us with those documents, they refer to a memorandum annexed, if I remember correctly.
MR BERGER: No but Chairperson, if you look at the decision, the history of the matter as I'm sure you're aware, was the decision was made in chambers, the 37 were granted amnesty, then the application was made to the High Court to have it set aside, it was set aside and referred back to the Amnesty Committee.
CHAIRPERSON: ...(indistinct) allowed to differ from other decisions of the Amnesty Committees, perhaps I could say I differ from that decision.
MR BERGER: Ja, you are, I'm just giving you food for thought.
CHAIRPERSON: Ja, thank you Mr Berger.
MR BERGER: And then once it came back to the Amnesty Committee, at page 7 there was - it says
"Following the Court Order, the Amnesty Committee made further enquiries from the ANC's TRC desk, which represents at least the original 29 applicants, and gave directions in respect of the attestation of the application and requested for further particulars. As a result of such enquiries, a letter dated 10 November 1998 was received by the Committee from the ANC's Secretariat."
And it's this letter which formed the basis, in my submission, of the Committee's decision to refuse amnesty. Because you'll see again at page 9, the underlined portion of the letter is a denial by the ANC that the applicants had committed any acts for which they would require to apply for amnesty. And that is specifically what Mr Ismail is not saying. He's saying exactly the opposite, he's saying "I committed certain acts, I gave commands and orders."
CHAIRPERSON: ...(indistinct - no microphone)
MR BERGER: No.
And then the issues are then dealt with and there's constant reference back to this letter, referring to the various sections of the Act. At page 18, the Committee said the following:
"None of the applicants have disclosed any such act, omission or offence. On the contrary, pursuant to the enquiries made by this Committee in terms of Section 19, (which is the request for further particulars) the applications as amplified in the letter quoted herein above categorically state that 'none of its people on its list have been involved in any individual actions for which they would require to apply for amnesty.' That the persons involved meet the criterion, that they have no need to apply for amnesty for any specific act. That they do not have to apply for amnesty for 'specific acts since there are none.'"
And then at the end of the judgment, at page 20 under "Findings", the Committee finds:
"It is our finding that insofar as the applicants seek to apply for amnesty for acts committed by their members in the various institutions and structures on the basis of collective, political and moral responsibility, their applications fall outside the ambit of the Act and accordingly they do not require to apply for amnesty.
Insofar as the applications read with the amplification are concerned, we find that no amnesty can be granted to the applicants because:
(1) on their own version they have committed no offence or delict in the Act;
(2) their applications do not relate to any specific act, omission or offence in terms of Section 20(1) and therefore do not fall within the ambit of the Act."
And that was why amnesty was not granted.
CHAIRPERSON: ...(indistinct - no microphone) it's going further, he's accepting more than collective, political and moral responsibility, he's accepting full responsibility.
MR BERGER: Absolutely, absolutely. He says "I gave certain orders which had certain results and it is for that that I seek amnesty. It's not a political moral - he does accept political responsibility and he does accept moral responsibility, but he goes far further, he says "I did these things, I gave these orders and these commands, I commanded certain units and it is for that that I seek amnesty, because those acts amounted to civil and delictual liability.
CHAIRPERSON: If we're stretching the ...(indistinct) sequence so far, wouldn't it have repercussions in the sense of all Commanders?
MR BERGER: Yes. But they way they choose to disclose their role in the struggle, it's for them to disclose what they want to disclose and what they don't want to disclose.
As far as Mr Ismail is concerned, to put it bluntly, he's gone the whole hog and he seeks amnesty. The other way of testing it is to say "On his version, could he be held criminally or delictually liable?" If the answer is "Yes", then he's entitled to amnesty. On their version ...(intervention)
CHAIRPERSON: Ja, no I agree with that, except then a further thing would be whether he applied for it and you say we shouldn't interpret the Act as trying to sort of include - it should be a wide interpretation, not a narrow one.
MR BERGER: Yes. Because one has to look at what was the intention of the legislature. This is a legislature sitting in, I think it was in 1995, yes 1995, a post-apartheid legislature talking about granting amnesty for all
"... the granting of amnesty to persons who make full disclosure of all the relevant facts relating to the acts associated with a political objective, committed in the course of the conflicts of the past."
Well I think that one can safely say that - I submit I should say, that one can safely conclude that the intention of the legislature was to grant amnesty to all those who were involved in the conflict of the past, and it must have been uppermost in the minds of the legislators, that that included Commanders such as Mr Ismail and Mr Saloojee. As well as people such as Brig Schoon, I might add.
CHAIRPERSON: Thank you, Mr Berger.
MR BERGER: I have nothing further to add. Thank you.
MS PATEL: Thank you, Honourable Chairperson. This issue has been canvassed so many times by so many different Panels, I don't believe there's anything extra that I can add or that will assist you in coming to a decision or a ruling on this matter. Thank you, Honourable Chairperson.
CHAIRPERSON: This would conclude the roll for today, we adjourn until tomorrow morning 9 o'clock. Thank you.
COMMITTEE ADJOURNS
