Amnesty Hearings

CHAIRPERSON: Mention was made yesterday of what time would we be adjourning tomorrow, and I made certain remarks. One of my colleagues pointed out to me later that because I happen to be spending the weekend here I was perhaps being a little unsympathetic to others, and suggested that we should, if we can, shorten the lunch hour today to half an hour, to start a little earlier tomorrow morning, if we can, and to continue tomorrow’s hearing until two o’clock, which would make up for the two hours that we then don’t sit for, so there would be no question of us sitting shorter hours. I gather that somebody is having some meeting this afternoon that makes it difficult for us to continue this afternoon late, so we won’t sit late this afternoon. Does that suit you all, gentlemen? I gather you get your lunch here and that you don’t have to go anywhere, so that half an hour ...

Very well gentlemen, we’ll operate on that basis, and when I say adjourn at two, if somebody finishes arguments at half past one, quarter to two, we adjourn then. If he needs another fifteen minutes - but we’ll aim for that, so you can make your arrangements accordingly. Right?

MR DU PLESSIS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman I have presented you with two sets of Heads of Argument which are quite voluminous.

   Mr Chairman both yourself and Mr de Jager will be well conversant I hope and suppose with the Heads and general tenor of the Heads. These are more or less the same Heads of Argument that I presented you, with the Cronje matters. All I have done is I have worked the evidence of this matter, as well as the Court’s own Cosatu House matters when I presented those Heads, into these Heads of Argument, so the further we go with this process the longer my Heads are going to become. Mr ...(intervention)

MR BIZOS: Mr Chairman I don’t want, I merely wish to place on record that I’m not arguing anything at this stage because I’ve just been given these two volumes. Mr Chairman we reserve our rights on the right of the applicants to place what evidence was led in other proceedings, of which we had no opportunity of traversing, and on a cursory look of these heads it would appears that such evidence is incorporated in these Heads. I merely wish to state that as a reservation of our rights, I don’t know to what extent it may assist or prejudice any of the parties, but we reserve our rights to object to either the whole or the specific passages that ...(intervention)

CHAIRPERSON: I don’t know what portions you’re referring to Mr Bizos, but it is our practice, and will continue to be our practice, in an endeavour to complete our task within a reasonable time, to have regard for evidence led at other hearings by persons like General van der Merwe, and Ministers and others, that we do not have to repeat such evidence at each hearing. It is evidence which has been led before us and which we accept as the, what would have been led if it was led again. If you wish to attack any particular passage in it, or any particular assumption, what we had in mind then was notice should be given and that person should be recalled to be subject to cross-examination on that point. But otherwise we seek to avoid repetition of what we could perhaps call formal evidence. Now I don’t know if you’re talking about that sort of thing, or actual factual evidence as to events.

MR BIZOS: I only see that there are numerous passages in relation to evidence referred to there, to which we have not been privy hereto Mr Chairman. So that we reserve our right in that regard.

MR DU PLESSIS: Mr Chairman, before I go ahead I would like to respond to that now. We can deal with it later as well, but in the evidence of Mr Raven, of my client, and I believe in the evidence of Mr Bizos' clients as well, and I think Mr Williamson’s evidence, I elicited that in cross-examination too, reference was made to the evidence of Brigadier Cronje, of Mr Vlok, of General van der Merwe. There was at that time, as far as I can recall, no opposition from Mr Bizos or anybody else. If there was opposition we would have dealt with it, and if it was necessary we would have recalled these witnesses which we don’t regard as necessary.

Secondly, Mr Chairman, in various decisions of the Amnesty Committee you approached the matter in the way that you indicated that you will approach it, and we approach it on that basis too, Mr Chairman. The records have been on the Internet site for, I think, well over a year, or a year and a half now, in respect of the Cronje matter, and the Cosatu and Khotso House hearings have also been available on the Internet, and from the Truth Commission.

ADV DE JAGER: I think the only thing is, whenever you want to sort of incorporate something, or refer to something specifically, I think every interested party’s attention should be drawn to that. You can’t expect an interested party to go through all the records in Internet, and that sort of thing. If you want to use such evidence you should refer to it, and I may say Mr Bizos included some of the, by reference, some of the previous statements, the Security Force statements, we had the ANC’s submissions to the TRC, that sort of thing. But let’s go on. I don’t think we need argue it now. Mr Bizos made us aware and so we’ll deal with it when it comes up.

MR DU PLESSIS: Yes Mr Chairman. I have obviously not in the Heads referred you to the specific passages where, this evidence was led incorporating the evidence, I will go back and I will give you those passages. I led that evidence specifically, of Mr Raven, of what he includes. I didn’t refer to specific parts of the evidence, but in, in respect of the political background, and that’s really where this evidence comes in, not pertaining to the specific facts of this matter.

Mr Chairman, unless you indicate to me otherwise, perhaps because of your knowledge of some of the arguments in the Heads of Argument, I intend to deal with some of the arguments, not everything, with some of the arguments until you give me an indication that you do not want to hear me further on a specific point, Mr Chairman. That is the attitude I want to approach in this regard.

Mr Chairman if I may refer you to the Heads of Ruth First and Jeanette Schoon. What I did Mr Chairman, I presented you now with two sets of Heads of Argument. What I did was, in respect of Gerry Raven, I incorporated all the references with respect to the London bomb incident, also into the Ruth First and Jeanette Schoon Heads. So although there are two sets of Heads of Argument, I’m not going to take you through both. I’m going to argue the three incidents with reference to the Heads of Argument with Ruth First and Jeanette Schoon. And at the end I will refer you to the last few pages of the London bomb Heads of Argument, just with specific reference to certain aspects. I did this to make it easier for you, Mr Chairman, otherwise you would have had to have regard to both sets.

CHAIRPERSON: ...(indistinct)

MR DU PLESSIS: Yes I don’t have any objection Mr Chairman. The Ruth First, Jeanette Schoon Heads of Argument would then be volume one and the other set would be volume two.

Mr Chairman, then if I can start with the beginning of my Heads of Argument, volume one, I have endeavoured to set out the principles which have to be proved by the applicant with reference to the specific sections of the Act. Now I don’t intend to draw your attention specifically to the sections of the Act because I’m sure after now you know this Act probably by heart already, Mr Chairman.

However, I want to point out to you certain aspects, and certain provisions in the Act, which I submit are important, and which one would have to constantly keep in, or take into account when you deal with this.

Firstly, I want to refer you to paragraph 7 of the Heads of Argument on page 3. To section 20, Sub-Section 4. There it is specifically stated that the criteria applied by the previous Indemnity Acts should be taken into account. Now that becomes applicable later in the argument, because of the way those Acts were formulated. Those Acts were formulated much more broadly than the current Act. They were applied on a very broad and wide basis, and secondly, an important aspect in the argument, namely the application of a subjective test overriding certain objective factors, is much more eminent in those Acts than in the current Act.

Now Mr Chairman there are really two important aspects which one has to prove, and that appears from, three actually, section 20 Sub-Section 1, A, B and C. Sub-Section 1 is simply the formalities of the Act, which I submit have been complied with. C refers to a full disclosure of all relevant facts, and I will deal with that part of the argument right at the end. And then B, one must prove that the act, omission or offence to which the application relates is an act associated with a political objective, committed in the course of conflicts of the past. And then in respect of the question if an act is associated with a political objective, the factors set out in section 20 Sub-Section 3 become applicable, and they have to be applied to determine if a person acted with a political objective, or if the act was associated with a political objective.

Now, Mr Chairman, that takes care of the Heads of Argument up to paragraph 8. In paragraph 9, section 20 Sub-Section 2, is dealt with. Now, Mr Chairman, in terms of the Act an applicant has to prove either that he falls under section 20 Sub-Section 2 Sub-Section A, in respect of the applicants, or Sub-Section B. The requirements are repeated in paragraph 9, and I can, I refer you to my Heads of Argument, they really repeat the Act, Mr Chairman.

The requirements of section 20, 2 A, are really four, as set out in paragraph 9. An applicant has to prove that he was a member or supporter of a publicly known political organisation, that he acted on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation, against the State or another publicly known political organisation, or liberation movement.

Now Mr Chairman, in respect of these four principles referred to in paragraph 9 of my Heads of Argument, and set out in Section 20(2)(a) of the Act, my submission is that my client, Mr Raven, is covered by, or his evidence covers, these principles. You would have noted that in his evidence, as well as the evidence of all the other applicants at this hearing, as well as evidence of the applicants at previous hearings, a lot of emphasis was placed on the fact that they acted for and on behalf of the National Party. They acted as the police of the National Party. They acted as supporters of the National Party, which was a publicly known political organisation. And they acted on behalf and in support of that organisation, and then they acted in a political struggle against the liberation movement. Then Mr Chairman, that is as easy as that. I could really have ended my argument here, because in my submission ...(intervention)

CHAIRPERSON: Did they act as members or supporters of a political party, or did they act as employees of the State?

MR DU PLESSIS: Mr Chairman, both. But for purposes of Section 20(2)(a), it is not important if they acted as employees of the State. It is important that you have regard to the fact that their actions were actions also as members or supporters of a publicly known political organisation, in support of such organisation. They testified that the Security Police was really the military arm of the National Party. It was a political institution. In my submission, the fact that they were employees of the State obviously makes Sub-Section B relevant, but it doesn’t mean that it, they cannot be included or fall under the auspices and the wording of Section A, Sub-Section A. They fall under that Sub-Section, Mr Chairman. And you ...(intervention)

ADV DE JAGER: Perhaps then an account should be sent for their travelling expenses, to their party.

MR DU PLESSIS: Well Mr Chairman, in the light of the evidence that was presented here, it was clear, and I refer in the Heads of Argument later to that Mr Chairman, in their evidence that they have at all relevant times been supporters of the National Party and that they acted to keep that party in power, and that that was, that they acted as such from a political perspective.

Now Mr Chairman I don’t have to rely on Sub-Section A. One can rely on Sub-Section B, which was clearly written into the Act for purposes of Security Forces, and it makes the test a little bit more difficult in terms of Sub-Section B. Sub-Section B requires that an applicant had to be an employee or a member of the Security Forces, that he had to act in the course and scope of his or her duties, within the scope of his or her express or implied authority. And one should read that together with Section 20(2)(f), which states that any person referred to in Sub-Section B, who on reasonable grounds believed that he or she was acting in the course or scope of his or her duties and within the scope of his or her express or implied authority. So it’s not just a question, an objective question, did he act within the scope of his express or implied authority, but you have to read it with (f), which says, did he believe on reasonable grounds that he was so acting, even if he wasn’t, from an objective point of view. So Sub-Section F introduces a subjective test, whereas in Sub-Section B, one has an objective test pertaining to the question did he act within the scope of his or her express or implied authority. Now I will come back to the evidence pertaining to this, but the evidence, in my submission, before you, is that both these tests have been satisfied in respect of the evidence.

Then on page 6, 10.3, must have been directed against a publicly known political organisation or liberation movement engaged in a political struggle against a State or a former State. Now that would be the liberation movement such as the ANC, PAC, SACP of which we had lots of evidence in this area. Or against any members or supporters of such organisation or movement. We’ve had ample evidence that all the victims at these hearings, especially in the Schoon and First incidents, were supporters of the ANC and the liberation movements. And then ...(intervention)

CHAIRPERSON: Who?

MR DU PLESSIS: Schoon and First, in the Schoon and First incidents.

CHAIRPERSON: You said something about all ...(indistinct)

MR DU PLESSIS: No, no I said the victims in the Schoon and First incidents. That would be Ruth First, Jeanette Schoon, and I will come to the argument in respect of Katryn Schoon.

CHAIRPERSON: You cannot say she was a member.

MR DU PLESSIS: No, no obviously I cannot Mr Chairman, but I’ll come to the argument about civilians and how one should deal with it. And especially a child in her position. An then five, which was committed bona fide with the object of countering or otherwise resisting the struggle.

Now in respect of that Mr Chairman, what I intend to do in the Heads of Argument is to deal with each of these requirements separately. I also intend to deal with each of the requirements in Sub-Section 3 of section 20, where one has to test if an act, omission or offence is an act associated with a political objective, to apply each and every one of them to the facts in this matter and test the evidence, and see if the evidence complies with those requirements.

Mr Chairman, in paragraph 12 I refer to the Transvaal Provincial Division decision, which was a judgment of Mr van, his lordship Mr Justice van Dykhorst, in respect of the previous Indemnity Act. And he dealt with the application of the principles in that Act, which were really the Norgaardt principles, which were really just repeated in section 20 Sub-Section 3 of the Act. And in my submission Mr Chairman, it is very important to have regard to this judgment, as this judgment gives a, or has formulated, a particular approach towards the Norgaardt principles in Sub-Section 3.

Now I just want to refer you to one or two points from this decision, and I will get back to the decision later. In respect of section 20(3)(b), which relates to the context in which the act, omission or offence took place, which has to be taken into account, his lordship Mr Justice van Dykhorst found that:

"...It need not be related to a simple political uprising, disturbance or event, but it could also pertain to a war situation which existed between the South African Government on the one hand and the liberation movements on the other hand."

So, he really found that the meaning of Sub-Section B in Sub-Section 3, means that it does not necessarily just have to relate to a political uprising, disturbance or event but also to the war situation which was prevalent in the country at the time.

Section 20(3)(d), which refers to the object or objective of the act, his lordship found that the test in terms of this guideline was not whether the act is lawful, but whether a cause was served. For example the political opponent or its property was targeted, as opposed to private individuals and their property.

And then F which refers to the so called proportionality test, this is important Mr Chairman. His lordship Mr van Dykhorst found that in that regard, something akin to a war situation has to be envisaged, and he found that it could never be that the killing of a political opponent would mera motu not be proportional to a political objective. So he found that the killing of a political opponent can under the circumstances be proportional to the political objective.

And then Sub-Section E, which refers to the question of authority, or, you will note that Sub-Section E is a bit wider than section 20, 2, B, because it doesn’t only refer to the authority in a legal way, but it also says whether the act was committed with the approval of the organisation, institution or liberation movement, or body of which the person who committed the act was a member or supporter. So it goes wider than simply the authority test. It refers also to the question if the person acted with the approval of the organisation. His lordship Mr Justice van Dykhorst referred to the superior order test, that’s paragraph 13.4 of the Heads of Argument, where he referred to the fact that a private soldier is protected from liability for acts done in obedience to the orders of a superior office, if the orders are not so manifestly illegal that the soldier must or should have known them to be so, and if a soldier honestly believes that he is doing his duty in obeying them.

Now, Mr Chairman, if we can then turn over to paragraph 15 of the Heads of Argument, I refer to the du Preez decision, it has been reported now in the Law Reports. I have included the reference, but it’s well known. And then the AZAPO case in paragraph 16.

Mr Chairman before I go on maybe I must just mention that I was under immense pressure yesterday to finalise the Heads of Argument, so there will be some spelling mistakes and certain other mistakes, which I apologise for. I didn’t have time to correct it. And certain references were repeated, which I had to take out, which I didn’t have time for. So I just draw your attention to that.

Mr Chairman, then if we can turn over to page, to paragraph 18, if I can refer you to that, reference is made in this paragraph to the argument in the AZAPO case about the applicability of the Geneva Conventions. Now I’m not going to belabour this point, Mr Chairman. It has been dealt with in the Heads of Argument, and my argument has been set out later in much detail. The only important point in respect of the AZAPO decision, was that the Court found that it was doubtful if the Geneva Conventions really apply to the situation in South Africa.

Mr Chairman then, paragraph 23. I refer again to the previous Indemnity Acts and I emphasise the use of the word shall be taken into account. Again Mr Chairman that is important when one has to decide if a narrow or wide approach in the interpretation of the whole section 20 should be applied.

Mr Chairman then I refer in paragraphs 24 and 25 to the guidelines and the principles applicable to the previous Indemnity Act. I’m not going to go through them, but it is important, Mr Chairman, in paragraph 28, if one reads the wording of the further Indemnity Act of 1992, it is clearly, it was clearly formulated with a view to a subjective test. (a) at the bottom of page 15 refers to a person who acted with a view to the achievement of a political act, for the promotion or combatting of an object or interest of any organisation, with a bona fide belief, which is again subjective, or with the approval, or an instruction, or in accordance with the policy of such organisation.

In my submission, Mr Chairman, this clearly indicates a subjective approach to amnesty. It is not a question of objectively determining was there a political motive? Did a person act with a political motive? It is a question, what was in the mind of this person when he acted? Did he, was he, convinced that he acted with a political objective? And I will come back to that argument again. I want to make the point now already Mr Chairman that from scrutinising your judgements, or the Committee’s judgements in other decisions, it has become clear to me that it has been applied every time with the emphasis on a subjective approach instead of an objective approach.

Paragraph 29 I refer to the fact that the test is a very wide test, and it should be an indication of that section 20 should be interpreted in a wide fashion.

Then I refer in paragraph 30, to members of the ANC who received indemnity, other indemnity notices in respect of other people who received indemnity.

Paragraph 34, I refer to the Groote Schuur minute, which referred to the definition of political offences in the South African situation, and the Norgaardt principles were endorsed by that minute.

Then paragraph 35 I refer to the Norgaardt principles and the fact that they were applied in Namibia. Mr Chairman the second last sentence of that paragraph 35, I say that the Norgaardt principles were applied in a wide and embracing way in Namibia. And this clearly reflects an attitude of benefit of doubt in the applicant for amnesty, and latitude in applying the principles. I will come back to the Norgaardt principles Mr Chairman, but the essence of the argument is that if one has to interpret Sub-Section 3 of section 20, one had to have regard to where this, where these principles come from, where were they derived from, and where have they been applied in similar situations? Now the only place where these principles have practically been applied previously, before the South African situation, was in Namibia, where they were applied by Professor Norgaardt himself, who were also the author of these principles. These principles were formulated by Professor Norgaardt with reference to international principles pertaining to the political offence, defence in extradition law. There is a vast body of authorities referring to that in international law. I refer later in the Heads of Argument thereto. It is important Mr Chairman, therefore, to have regard firstly, in the interpretation of Sub-Section 3, to how the Norgaardt principles were applied in Namibia, firstly, and secondly, where do they derive from and how did it come about that they were formulated in the way they were formulated. It is important for this reason Mr Chairman, and that is that if one analyses the international extradition law, one realises the dichotomy between a subjective test of a political offence, and an objective test. And then if one looks at the approach of Professor Norgaardt in Namibia, and you determine how did he apply his own principles which he formulated, one sees that he formulated those principles with an overriding emphasis on the subjective application of these principles. The subjective principles of Section 30(3), were more important in his application than the objective.

ADV DE JAGER: Would that not only apply if we ourselves could not interpret the present Act, if there is doubt about interpretation then we could go to sort of other sources in order to help us with the interpretation, but if the Act of itself is clear, and could be interpreted on the words of the Act?

MR DU PLESSIS: Yes, no Mr Chairman, obviously that’s the normal way of interpretation, but in my submission, it is important to have reference to how these principles arose. I know that from the strict interpretation principles of interpretation of Statutes, you interpret the Statute and only in a case of doubt you have reference to all extraneous factors. It is, however, important to present you with argument pertaining to the origin of these principles, and especially how they were applied in other jurisdictions, Mr Chairman. With reference to a comparative analysis of the Act. It is a principle that you can take into account when you interpret the Act. I’m not saying you have to Mr Chairman, I’m trying to present to you the most complete argument possible pertaining to this.

Then, Mr Chairman, I refer in paragraph 36 to the indemnity of Barend Strydom and Robert MacBride in respect of the old Indemnity Acts, and how they were applied.

And then in paragraph 38, ...(intervention)

ADV DE JAGER: For anybody seeing the orders issued in those cases, because we’re often referred to these, and on the other hand, according to some information, it was only parole that’s been granted to them, and not indemnity.

MR DU PLESSIS: Mr Chairman I didn’t go into the specific notice in respect of the Act which was published. As far as I am aware, there were simply notices published and no specific reasons or judgments were given when these people were granted amnesty.

CORNELIUS: I might be able to assist, I acted for Barend Strydom - Cornelius, and it was a form of parole that was granted.

MR DU PLESSIS: I’m indebted to my learned friend, Mr Chair. Mr Chairman then in paragraph 38, I refer to the Norgaardt approach, in which a political motive from a subjective point of view, was considered as an essential prerequisite for a criminal offence being designated as a political one.

Then I make the point in paragraph 39 which I’ve already made about the further Indemnity Act.

Then I want to take you Mr Chairman, to paragraph 43. The reference to Rautenbach’s article on the application of the Norgaardt principles. And then in respect of that, on the next page, page 23 Mr Chairman, in the middle of the page, the sentence starts with

"He further considered ..."

... the right hand part of the page:

"He further considered that serious acts of indiscriminate violence against civilians or civilian property, unconnected with the administration of a state, could not have a sufficient direct relationship to the political objective being pursued. He also considered it proper to take into account the fact that in some cases the act in question was committed under orders or duress."

Now that is important, Mr Chairman, for purposes of how one should deal with actions against civilians, and also included in that, people who got caught in the cross-fire, Mr Chairman, such as Katryn Schoon.

Now, Mr Chairman, I deal in paragraph 44 with how amnesty was dealt with in other countries, and I’m not going to deal with that with you. You can read that, and I suppose you have read that already.

Mr Chairman then in paragraph 52, I refer to the use of the word ‘satisfied’ in the Act. Now, Mr Chairman in my submission it is important to have reference to this word, because this really explains the onus that an applicant has to satisfy. It is not a test on a balance of probabilities, or beyond reasonably doubt, it is simply reference to the word ‘satisfied’. And my submission, Mr Chairman, with reference to what the word means, it refers to the discretion that the Committee has, which is a bound discretion and not an unfettered discretion as referred to in paragraph 55. This means that the Committee must be satisfied that an applicant has shown that he is entitled to amnesty with reference to the factors in the Act. The Committee should apply its mind according to the requirements of the Statute and the tenets of national justice.

Then paragraph 57, it should have regard to all relevant information. I refer in paragraph 58 again to the authorities pertaining to the principles applicable to Statutory Tribunal. And then I make the submission, Mr Chairman, in paragraph 59, that the Committee should take into account all the information and evidence placed before the Committee relevant to the Committee’s discretion.

Now in my submission, Mr Chairman, satisfy incorporates a test which should be interpreted, in my submission, the same way as the test in a civil case, on a balance of probabilities. It doesn’t say so, but it cannot be a higher test than that. And that is as far as I am aware, how the use of that word has been interpreted in administrative law decisions previously. CHAIRPERSON:   ...(indistinct)

MR DU PLESSIS: It’s a point that I’m making now Mr Chairman. I don’t think that I’ve made that point clearly in the Heads of Argument. I don’t make it clear in the Heads of Argument. You can incorporate the note in paragraph 54, Mr Chairman, that’s probably the most appropriate place.

ADV DE JAGER: ...(indistinct) The test is one of balance of probabilities ...(indistinct)

MR DU PLESSIS: Yes, yes. Now Mr Chairman I intend now to deal with the specific requirements point for point, with reference to the evidence. I will try to be as short as possible.

Firstly, section 20, Sub-Section 1, Sub-Section B,

"It must be shown that he act was committed in the course of the conflicts of the past."

Now Mr Chairman in my submission, this ...(intervention)

CHAIRPERSON: That’s paragraph 65 now, you’re dealing with?

MR DU PLESSIS: Yes, Mr Chairman, I’m sorry. From paragraph 65 onwards Mr Chairman.

In my submission, it was made very clear in the evidence before you, that we were dealing with act directly committed in the course of the conflicts of the past. Extensive evidence was led pertaining to the conflicts of the past. The background to it, the political uprisings, the ANC’s people’s or the counter-revolutionary strategy of the South African government and the South African Security Forces, and then I refer to the fact that even Gillian Slovo in her evidence confirmed that it was a war situation. I refer to Mr Raven’s evidence. You will see there where it simply says ‘record’ with no reference to what matter it was, it means this matter, Mr Chairman. Paragraph 65, you will see there it says "See record", and if the reference in these Heads only refers to ‘record’ it means this hearing, otherwise I will refer to which hearing the reference relates to.

Mr Chairman, paragraph 66, the evidence throughout the hearings in respect of the applications indicates clearly that the South African government and the National Party was engaged with the liberation movements in a low intensity war. This was supported by the evidence of Mr Vlok and General van der Merwe. And the evidence at all times was in respect of all the applicants, and that goes specifically for Mr, in respect of Mr Raven and Mr Williamson and I believe all the other applicants before you in these matters, that they were either members or supporters of the National Party and its policies. I give the specific references there. General van der Merwe’s evidence, the Cronje hearings, Brigadier Cronje’s evidence, I refer to the Cosatu Khotso House hearings, and then in general I ...(intervention)

MR BIZOS: I’m sorry to interrupt my learned friend. Could we have placed on record, Mr Chairman, whether the three Members of the Committee hearing this application, were Members of the Committee at these various hearings that are referred to. Were all Members of this Committee Members of the Committees that decided these matters?

MR DU PLESSIS: Mr Chairman at least two of you were, in respect of all these applications.

ADV DE JAGER: ...(indistinct) weren’t Members of the ...(indistinct). Mr Sibanyoni wasn’t a Member of the Amnesty Committee at that stage at all.

MR BIZOS: We can note that one Member of the Committee was not in the applications that are referred to. Is that correct, Mr Chairman? Because we will submit that that has certain consequences, as to whether the Committee can take cognisance of anything that was said in those hearings.

MR DU PLESSIS: Mr Chairman I have to respond to this in the following way. If this objection was made when the evidence was led during the hearing, I and probably the other representatives here, would have known that this was going to be an issue in this hearing, and I would have included argument in my Heads of Argument pertaining to this. Now, Mr Chairman, the judgment of Brigadier Jack Cronje makes it very clear, that the Committee had reference not only to his evidence, but to later evidence, in later amnesty hearings. The evidence of General van der Merwe at the Khotso/Cosatu House hearings and Minister Vlok’s evidence.

ADV DE JAGER: But wasn’t it specifically agreed at a stage, between the parties that’s been represented in certain cases, that reference to evidence led at a previous hearing where everybody was sort of present, can be incorporated?

MR DU PLESSIS: Mr Chairman, as far as I remember, the evidence was led and there was no objection to that during those hearings at the Khotso/Cosatu House hearings. I can’t remember that the people who opposed the applications or who were represented by other parties apart from the applicants, objected to reference to evidence of previous hearings. I cannot recall if it was specifically mentioned and specifically agreed. That I cannot recall, Mr Chairman, but ...(intervention)

ADV DE JAGER: General van der Merwe, for instance, gave evidence at the Cronje hearings, and he gave evidence at those hearings. Remember that certain aspects were put to him that you’ve already testified this and that in the Cronje case.

MR DU PLESSIS: Yes, Mr Chairman, yes, it was agreed with reference to the applicants concerned obviously, there is no doubt about that at all. There was agreement at all relevant times. And I think in these hearings as far as I am aware and concerned, that was the understanding amongst the applicants all the time, and I thought that was the understanding at this hearing up to this morning. I cannot for the life of me recall that Mr Bizos ever ...(intervention)

ADV DE JAGER: No but I think if there is agreement about a specific thing that’s being said in evidence, and the witness is not available, if he’s, if you want to use something that’s been said in relation to a specific aspect. If it’s policy in the broad and there is agreement about the policy in the broad or the facts in general, that may be a different thing. But if you want to sort of attack somebody’s credibility on a specific point, regard to what he’s said in previous matters, may have weight or no weight in certain circumstances.

MR DU PLESSIS: Well Mr Chairman, that is why I made the point just now, that if when I led the evidence of Mr Raven referring back to this evidence, and there was an objection, we could have dealt with it then, and then I would have known and I think Mr Visser would agree with me and Mr Levine too, we would have known that if we wanted to rely on that evidence and there was objection, and Mr Bizos wanted to cross-examine those witnesses, we had to call them. It wouldn’t have been a problem for me to call Brigadier Cronje in this matter. Brigadier Cronje would have been

GAP BETWEEN TAPES

MR DU PLESSIS: ... on those parts of the evidence, then we would have called them as witnesses. If this situation is going to prejudice my client, Mr Chairman, then we have a serious problem. That means that I have to now consider my position, and request you to open my client’s ...(intervention)

ADV DE JAGER: Let’s see what the specific objection could be after we’ve studied, everybody has had the opportunity to study your Heads of Argument and how far you’re relying on other evidence. It may be that some of the evidence could be common cause, but we can’t at this stage, nobody could say that we agree with page 119, line 10 to 12 of Brigadier Cronje’s evidence, for instance.

MR DU PLESSIS: May I then ask, Mr Chairman, if Mr Bizos studies this, and he comes back, and he gives us an indication that he has a dispute with this part of Minister Vlok’s evidence, that part of Brigadier Cronje’s evidence, if we would then be in a position to request you to reopen the case and call those people for them to be cross-examined on those points by Mr Bizos.

CHAIRPERSON: Can you just clarify something for me at the moment. I’m looking at page 37 of your Heads. You say General van der Merwe’s evidence at the Cronje hearings, and you then give a reference. Is that a reference to the record in these proceedings?

MR DU PLESSIS: No. Mr Chairman you will see where it says right at the beginning where the references start. It says see record pages 1853. Now the moment I refer to ‘record’ without anything attached to it, it’s these proceedings. Thereafter I say General van der Merwe’s evidence at the Cronje hearings, and then I refer to the record of those hearings. I say Brigadier Cronje’s evidence at the Cronje hearings, then I refer to the record of those hearings. And again the Cronje hearings.

CHAIRPERSON: And that hasn’t been put to any witness in these proceedings.

MR DU PLESSIS: During cross-examination.

CHAIRPERSON: Or in chief.

MR DU PLESSIS: No it was Mr Chairman. It was asked by Mr Raven if he had read Brigadier Cronje’s evidence and General van der Merwe’s evidence, and if he confirms that evidence as true pertaining to the background evidence.

CHAIRPERSON: Yes but these page references were not put.

MR DU PLESSIS: No, not specifically, Mr Chairman.

CHAIRPERSON: And Mr Bizos was not made aware of them. It was just, he was saying, on general principle, as I understood it. We aren’t going to analyse, I did not understand that we would analyse and take passages out of Cronje’s evidence, or van der Merwe’s. Van der Merwe’s evidence has been made available has it not in a booklet or pamphlet, which we call it, which has been used in several hearing, which has just been handed in as yet, but I don’t know that General van, Brigadier Cronje’s has. And as I understood it he was merely agreeing with the principles expressed. I don’t know what passages you’ve taken out now.

MR DU PLESSIS: Mr Chairman may I just say that these passages were the exact passages I refer to in my Heads of Argument in the Cronje matter, just to make the specific points. It all deals with the background evidence of Brigadier Cronje. It doesn’t go further than that. And that background evidence, as you can recall, related to the evidence of the whole struggle. Brigadier Cronje laid a basis for all Security Policemen thereafter to come and testify about the basis of the struggle. That went, meant, the background evidence, to the whole dispute, about the counter-revolutionary strategy of the government at the time, etc. It’s all background evidence, and it really, Mr Chairman, relates to paragraph B of section 20 Sub-Section 3, where one has to show the context in which the act, ommission or offence took place, and then in certain instances it also relates to the question if an applicant acted within the scope of his authority or if he reasonably believed that he did. And I refer to the evidence, and examples of the evidence, as examples of not just Mr Raven, but other policemen, how they came under the impression that they had authority to act in a specific way.

CHAIRPERSON: I can envisage, I may be being unduly cautious here, what Mr Bizos’ problem is. You don’t, you say here, I’m reading from 66

"Gillian Slovo confirms it was war."

And you say, then you say:

"General van der Merwe confirms it was war."

And you say, then you say,

"General van der Merwe’s evidence, Brigadier Cronje’s evidence at Cronje’s hearing."

Should you at least summarize, rather than put references like this that if you haven’t got a copy of that record you don’t know what they are. Shouldn’t you rather say, General van der Merwe and Brigadier Cronje gave evidence at these hearings to the effect that there was a war situation, and this was confirmed by the witness Raven? Something to that effect.

MR DU PLESSIS: Well Mr Chairman, that was really the intention, if you read paragraph 66, it says

"...the evidence throughout the hearings in respect of all the applications,"

... and that should be previous applications.

"indicates clearly that the South African government and the National Party was engaged with the liberation movements in a low intensity war. The evidence of Mr Vlok in particular, as well as the evidence of General van der Merwe should be regarded in support of the applications of all applicants."

ADV DE JAGER: Mr du Plessis, you make the statement that it was a low intensity war. If that is not accepted, then we’ll need to go into all the sort of references, whether it was and whoever said it or whoever didn’t say it. But if it’s accepted by everybody that there was a low intensity war and it was part of the conflicts of the past, whether you give these references or not it wouldn’t matter at all.

MR DU PLESSIS: That comes back to my point Mr Chairman. If Mr Bizos can indicate to us with reference to what is stated in the Heads, not necessarily each and every separate paragraph, but if he says in general principle, in general he has no dispute with it, then surely there is no problem with this. It only relates to if he comes back and he says, for instance, if, later in the Heads of Argument I made the submissions that the policemen were brought under the impression that they could act as a result of other acts which took place outside the legal sphere. If Mr Bizos comes back and he says, well no reasonable policeman could have been brought under that impression, then obviously that’s a point of dispute, but it’s a point of dispute that arises now, Mr Chairman.

CHAIRPERSON: Is it of any importance at all? You have put these there, I can tell you now, the possibility of my reading all these passages is extremely remote. You are making the submission that it was a low intensity war. You’ve made it in the course of your argument. This is not evidence. This is to support your argument if needs be.

MR DU PLESSIS: Correct Mr Chairman. And I say ...(intervention)

CHAIRPERSON: If Mr Bizos wants to attack it, in reply you can perhaps read some of these passages. But for the moment it doesn’t go in as anything other than possible references if you’re called upon to make any.

MR BIZOS: Mr Chairman, the problem is a little bit more serious than that, with respect. This - the whether or not there was a low intensity war is one sentence, and it may well be that some accommodation can be made in that regard. But what these Heads of Argument purport to do, if I could draw your attention to page, from page 37 to page 42, there are references to General van der Merwe’s evidence, General Cronje, or Brigadier Cronje’s evidence, and others, and on judging from what page to what page, there are substantial references to substantial passages in the record, on an average of over ten pages per reference, I haven’t actually calculated, but on a cursory look this is what it looks like. Here we have a situation, Mr Chairman, where my learned friend says that he asked Mr Raven whether he agrees with that. Now Mr Raven, I don’t know what he agreed to and what he disagreed with. None of this was placed before the Committee. It may well be that the task may have been easier if every Member of the Committee was a Member in the van der Merwe hearing and in the Cronje hearing. And it’s no good saying, putting the onus on us, to say well what do you say about this. This is evidence given in other proceedings where, a Member of the Committee was not a party. We do not have not have any knowledge of it. We were not apprized of what, we don’t know what facts are contained in these long passages, which portions we may want to challenge, and which portions we would accept. And I don’t know how the Committee decides, since one of its Members did not hear that evidence, whether that evidence is correct or not. So that it isn’t for us, Mr Chairman, to respond to this. The applicant has ...(intervention)

CHAIRPERSON: Not at all, it isn’t for you to respond to it, and the applicant has not referred us to these passages and I’m not going to look at them.

MR BIZOS: Well then what are they doing here?

CHAIRPERSON: I don’t know. That’s what I’m asking. He has set out his argument, and as I presume, this is that if he’s asked to prove them he will then try to do so that way. He has not been. And I don’t see the relevance of them. To say, as he does on page 42

"the liberation movements were engaged in war."

and then say:

"see Cronje hearings."

I certainly do not think we need a reference to the Cronje hearings. For that we’ve had ample evidence that that was the position.

MR BIZOS: Mr Chairman, my learned friend’s argument does not contain allegations of fact which place an onus on an opposing party to rebut it. He must make up his mind as to whether or not he is relying on these references, or whether he wants to delete it from his Heads of Argument. Because it is quite improper, with the greatest respect, to make submissions and say that they are supported by a record which we have not seen, which a Member of the Committee has not seen, and say, well, if you don’t like it come back and prove the contrary. This is not he purpose of argument Mr Chairman. Argument is confined to what is a record before the Committee, and I would appeal that ...(intervention)

CHAIRPERSON: And what is confined to what we have discovered by our investigations. Yes, which is what has been unearthed at previous hearings, which has been circulated and made public. We do not sit as a confined little body saying this is the only application the Amnesty Committee has heard. We have made other decisions. I can’t hear you Mr Bizos.

MR BIZOS: I beg your pardon. Your Lordship wants to hear me but couldn’t hear me. I’m sorry about that. Mr Chairman, a judicial body of this nature is confined to what is proved before it Mr Chairman. And not, with respect, what one or other of the Members of the Committee have heard in other cases, Mr Chairman. I ...(intervention)

CHAIRPERSON: Where the Committee has accepted evidence and said so in its decisions, ...(intervention)

MR BIZOS: Were the applicants in this case given an opportunity in those decisions to make submissions.

CHAIRPERSON: If they wish to contest it they can. Do you contest that there was a state of war, Mr Bizos?

MR BIZOS: I’ve already dealt with that Mr Chairman. ...(intervention)

CHAIRPERSON: ... gone on and on. Let’s just go on with the argument Mr Bizos. If you have problems, we will then ask Mr du Plessis to make records available, or to recall the witnesses to confirm them. Because I think he has put a great deal here that is totally unnecessary for the purposes of the argument which he intends to advance. Do you wish to refer to all these passages, Mr du Plessis?

MR DU PLESSIS: Well, Mr Chairman, this evidence was placed before you. These passages refer specifically to the evidence ...(intervention)

CHAIRPERSON: But refer us to the evidence, refer us to what Mr Raven said about them.

ADV DE JAGER: Mr du Plessis, but, on that evidence a certain conclusion has been drawn. A decision has been made. Isn’t the relevance of that evidence in relation to the decision, and if it’s a decision of this Committee or another Committee of the Amnesty Committee, you can refer to as a conclusion that a Committee has already come to. And that’s the end of it. Whether this Committee comes to the same conclusion is another matter. But ...(indistinct) it’s sort of a precedent that a Committee have already come to a certain conclusion on the evidence.

CHAIRPERSON: It’s also relevant what you put to Mr Raven, what he said in reply, and then if Mr Bizos did not question it, we can accept that reply.

MR BIZOS: Was Mr Raven present when Mr Cronje gave evidence, Mr Chairman?

CHAIRPERSON: If you didn’t challenge it Mr Bizos, if he said I read the evidence and I accept it in respect of certain conclusion, I don’t know what Mr Raven said, we haven’t been told.

MR BIZOS: ...(indistinct) I believe to be the victims’ rights in relation to this, and would submit that you will have no regard to other records. I don’t want to make a submission as to what the position might have been if all three Members of the Committee had been present when that evidence was given. But in a situation such as this where a present, one Member of the Committee was absent, I submit that any reference to this evidence is not part of this records, is inadmissible, and it can not be relied on.

MR VISSER: Mr Chairman, may I please be allowed also to say something? Visser on record. I am also affected by anything that might happen here, Mr Chairman. And with respect I’m going to suggest that this Committee now makes a ruling. Mr Chairman, I don’t want to go into the background. You are painfully aware of the historic path this Committee from its original inception, has walked, Mr Chairman. You are painfully aware, as we all are, of the shortage of time, the shortage of finances, and the urgency with which it is viewed that the amnesty applications should be completed. Not least of all, Mr Chairman, from the point of view of the applicants, who want finality about these matters.

Now Mr Chairman, from the very inception, from the original Committee, ever since I started appearing before the original Committee Mr Chairman, there was an urgency to finish not to waste time. Mr Chairman, in that sense, when one wanted to call witnesses where there were affidavits available, these were accepted by the Committee, Mr Chairman. When evidence was led in chief, one was placed sometimes under pressure to say but can’t your applicant just confirm what he has said in the application? Can’t he just confirm that he had heard or he has read the evidence of that person? Why should we waste time in having to rehash the whole thing?

And Mr Chairman, coming to the point which is really the point I want to make, is, your original Committee, Mr Chairman, in the decision of Jan Hatting Cronje, has actually summarised those sentiments Mr Chairman. And I want to read it to you. It says at page 1, the third paragraph, that is Jan Hatting Cronje, that’s Jack Cronje, Mr du Plessis’ client:

"The applicant applied for amnesty in respect of eleven incidents set out in schedules 1 to 11 in his application. Before dealing with the separate incidents it will be necessary to deal with the background. This matter has to be considered in the light of the evidence given by General Johan van der Merwe, the former Commissioner of South African police, during this hearing, and the evidence given by the former Minister of Law and Order, Mr Adriaan Vlok, in a later hearing, of his application for amnesty number 4399/96"

... that’s the Cosatu House and Khotso House hearing. Now Mr Chairman, I pause here to draw your attention to the obvious fact, that Amnesty Committee did not come to this decision by agreement between the parties, they came to this decision of their own volition. Obviously it was at the request, by various lawyers, acting for various applicants, after they had heard the evidence of Mr Adriaan Vlok and General Johan van der Merwe. I know that Mr Cobus Booyes, my colleague from Natal, wrote a letter to the Amnesty Committee to say, please do not give judgments in the cases which have been heard and where decisions are pending, until you have read the evidence of Mr Adriaan Vlok and Johan van der Merwe in Cosatu House and Khotso House. That is obviously what has happened here Mr Chairman, because the evidence which I’ve just referred to came much later than the evidence did of Jack Cronje in his amnesty application.

May I just complete what I want to read to you:

"In so doing, the Committee is aware that the applicants did not have the opportunity to listen to the evidence of Mr Vlok or to cross-examine him. The Committee does not, however, intend to us his evidence to the detriment of the applicants. Both van der Merwe and Vlok gave evidence of a general nature explaining circumstances under which members of the police worked during the time of political turmoil in the country. And also how they might have understood their instructions in the light thereof.

Almost all policemen giving evidence before the Amnesty Committee refer to their background, and at the end of their testimony expressed regret for what they had done. This may be very relevant in an ordinary criminal hearing when extenuating factors are considered, but these factors or any other factors relating to morality that may lend colour to a defence, does not in terms of Act 34 of 1995 render one offence more justified than another. There are not requirements or relevant factors to be considered in the granting of amnesty or refusing thereof."

Making it quite clear Mr Chairman, that we’re simply talking about the background.

"They may, however be - There may however"

... it should be there.

"There may however be factors that could contribute to reconciliation and a better understanding of the conflicts of the past, and for this reason the Committee allowed the evidence to be led. It may shorten future proceedings if the evidence,"

... and this refers, if I may interrupt myself, to the evidence of Vlok and van der Merwe.

"could be summarised in this decision and simply be referred to in future without the necessity of repeating in all future hearings."

Clearly the evidence:

"Almost all policemen appearing before us joined the police force,"

etc. And it goes on just to say, Mr Chairman, this is the reason why that evidence will probably find application in most of these cases. So please don’t come and repeat that evidence before us every time you arrive. Refer us to it and what we have done, Mr Chairman, as you well know, is we have incorporated, each and every applicant who’s appeared before you, we’ve incorporated certain evidence. There has never been a problem. Those documents have been available Mr Chairman, from the beginning. Evidence of Vlok and van der Merwe, as my learned friend Mr du Plessis has stated, is available. The moment we led the evidence of Coetzee or Taylor to say I incorporate it, I know what Vlok and van der Merwe said in the Cosatu and Khotso House hearings. I incorporate it into my evidence. I agree with it. That’s the end of it, Mr Chairman, and if it has to be challenged it has to be challenged there and then.

Now, Mr Chairman, to come now and challenge it by my learned friend Mr Bizos, with great respect, is too late in the day. Does he really expect that, first of all we’ve got to lead that evidence for the benefit of any person who comes to these hearings for the first time. Or in the case of the Committee changing, by one Commissioner, that we have to lead all that evidence again? Surely, Mr Chairman, we’ll be here for the next century if we have to do that.

And I would ask you, Mr Chairman, to make a ruling in line with the decision which has already been given by the full original Committee of the Amnesty Committee and to say that my learned friend Mr Bizos is not entitled to compel us to reopen the matter and to give all the evidence which we have incorporated by specific reference in our evidence, Mr Chairman.

CHAIRPERSON: There they say they will set out, do they then set out the ...?

MR VISSER: But Mr Chairman, the judgment is available. I don’t find that they do set it out Mr Chairman, but I may be misreading it. But certainly it is not, the facts, the actual facts relied upon, are not specified and set out Mr Chairman. It’s a general reference, the way I read it. I may be wrong.

ADV DE JAGER: It’s about the background.

MR VISSER: Yes, the evidence of General van der Merwe and Mr Vlok that we refer to deals with background. It can never deal with the facts of every specific incident. We’ve never pretended to try to apply it to that aspect Mr Chairman. It refers to the general background. We simply don’t want to come back to you every time and say, oh, Mr Chairman do you really, have you heard that there was a conflict in this country? I’m going to call Mr Vlok and General van der Merwe ...(intervention)

CHAIRPERSON: No, the point I made ‘though Mr Visser, was, should the Heads not be altered to read something to, the evidence throughout the hearings in respect of all the applications indicates clearly that the South African government and National Party was engaged with the liberation movements in a low intensity war. This was referred to in the evidence of Mr Vlok and van der Merwe which was accepted by the Committee in that judgment. And then leave that. Not set out pages after pages of detailed references, which Mr Bizos says he doesn’t know what they are about. If Mr Bizos in argument then wants to argue that it is wrong to say there was a low intensity war, he can advance argument.

MR BIZOS: If I understand that judgment correctly, the evidence that was to be incorporated was made available in that, if I read the judgment correctly. But I see that Mr Visser is shaking his head, I have no knowledge of it, I haven’t seen the judgment, I can’t make any meaningful submission. But Mr Chairman, we are referred to the evidence of Mr van der Merwe. We were not asked to admit or deny the evidence of Mr van der Merwe or Mr Cronje at any stage during these proceedings. I am not, I am not suggesting that evidence may not be in, that has already been given, may not be incorporated. It is open to the party to either agree or not agree as to whether evidence in other proceedings may be incorporated.

Let me, in case it is thought Mr Chairman that we are merely being technical in the matter, let me say that it is a matter of some importance for us, Mr Chairman. If my learned friends want to rely on the evidence of Mr van der Merwe, Mr Chairman, and they make us, they make copies of the evidence of Mr van der Merwe and ask that it should be incorporated in this, we would object to it Mr Chairman, and I will give you reasons, Mr Chairman, why ...(intervention)

CHAIRPERSON: I am going to take an adjournment now, and the parties can discuss this matter amongst themselves. I’ve never been at a hearing as an advocate or a Judge, where there has been so much lack of co-operation and hostility between the parties appearing in it. And I will now take the adjournment and you can talk to one another and see if you can reach the agreement that you were talking about Mr Bizos.

MR BIZOS: May I just finish my submission in relation ...(intervention)

CHAIRPERSON: No Mr Bizos. I am adjourning now.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Bizos was endeavouring to make submissions to us in the hope that the parties might reach an amicable agreement on an issue which appeared to us to be not of any great importance. Has any such agreement been reached?

MR BIZOS: No, Mr Chairman, but there are certain facts which have emerged, which I think we would want to place on record for a proper decision to be made.

Firstly Mr Chairman, we were informed that Mr Levine who is acting for Mr Williams, is not relying on any of these passages that are enumerated in the, from Vlok, van der Merwe, or Cronje, or the Khotso House matter, or any of the passages that are referred to in this.

Our learned friend Mr du Plessis said, I asked him, because we don’t know what is in these passages, whether the passages that he wants to rely on merely relate to the general nature of the conflict. Whether or not there was a state of war. I offered, Mr Chairman, in the spirit of co-operation and putting the end to the proceedings, would he be prepared to formulate admissions of fact, which he wants to rely on, which may have been proved by the passages that he wants to rely on. And would he be prepared that if we peruse that evidence, to make admissions of what they said which we may want to bring to the attention of the Committee.

The offer was rejected, Mr Chairman. Because it was said that if there is any disagreement about the admissions of fact that are sought, it is inevitable that Mr du Plessis would want to call the witnesses in order to prove what they said in those proceedings. That is the aspect. We also saw the judgment, Mr Chairman, which, or the ruling that was made, in the main, Mr Chairman, insofar as it relates to the opinion of the persons that drew up the ruling, we have no quarrel with. But, Mr Chairman, we cannot, with respect, accept as fact some of the matters as applicable to this case, and the personalities involved in this case. This is why, Mr Chairman, I have suggested, with respect, in the spirit of compromise, that the argument should proceed. Mr du Plessis asks us for admissions of fact which we will consider in good faith, and we’ll agree to when supported by the evidence and from our general knowledge and the experience of the Committees and everything else, Mr Chairman.

As far as Mr Visser is concerned, he has a lesser requirement, but I think that it would be better if he speaks for himself rather than my paraphrasing the, his position, Mr Chairman.

MR DU PLESSIS: Mr Chairman, may I please be afforded the opportunity to present this? I know I am by far Mr Bizos’ junior, but the ways I’m treated here, I don’t like very much.

Mr Chairman, Mr Bizos asked me if I would be prepared to present them with facts that I would like to have admitted, from this evidence, and that they then can come back to me after the weekend to say if they admit it or not. I said to him, I have no problem with that, they can take my Heads of Argument, the references that I want to rely on, the factual evidence, is in there, they can come back to me on Monday and tell me if they dispute it or not. However, I said to him, the only problem that I foresee is if he comes back to me on Monday, and some of these passages are disputed, it would place me in the position to maybe decide, and I’ll have to make a decision pertaining to the passage, if I should call these witnesses or not. So I am in agreement with that procedure, but it could, if the passages are disputed, it could lead to a situation that I’m forced to call these witnesses.

Now, Mr Chairman, he comes and he tells you that in the spirit of co-operation he made a suggestion to me which was flatly refused, which is not the truth. I have now said to you, and pointed out to you, what my position is, Mr Chairman, with respect, and I want to reiterate that if this point was taken during the evidence I would have dealt with this issue, and I would have probably, if I thought it necessary, have asked the Committee’s permission to call these witnesses, Mr Chairman. I don’t want to be unduly difficult, Mr Chairman, ...(intervention)

CHAIRPERSON:   ...(indistinct) the problem Mr du Plessis, that as you have told us, you asked Mr Raven: "Have you read Cronje’s evidence?

He said:

"Yes I have"

You said:

"Do you agree with it?"

He said:

"Yes"

And that was an end to the matter.

MR DU PLESSIS: Yes, he said he agrees with the evidence in broad terms, Mr Chairman. That was his evidence.

CHAIRPERSON: Yes, and we took the matter no further because we understood this was dealing only with the general background.

MR DU PLESSIS: Yes, it does.

CHAIRPERSON: But the evidence was not made available, it was not put to him, it was not put in in evidence. It is not before us.

MR DU PLESSIS: But it was at all relevant times accepted that there was no dispute with this, Mr Chairman.

CHAIRPERSON: Have you read Gone With the Wind?

MR DU PLESSIS: No I haven’t.

CHAIRPERSON: If you said you had, would that entitle you to put it in as a, produce it as an exhibit when it hadn’t been put in? Had it been put in, the point I’m raising is a technical point. Had it been put in then, as an exhibit, you could then have said, well the other parties had opportunity to consider the exhibit. But certainly I did not think, I don’t think anybody thought, that from that general answer you were then going to put in detailed passages line by line, from that record. Is it necessary, Mr du Plessis? All you are seeking to show, as I understand it, is that there was this state of tension, that there was a state of war.

MR DU PLESSIS: Yes, and that for instance, Mr Chairman, that the Security Police were brought in generally under the impression that because of certain unlawful actions they were tacitly authorised to act in the way they wanted to ...(intervention)

CHAIRPERSON: Yes, and it's all argument.

MR DU PLESSIS: Those are all the things that I want to refer to.

CHAIRPERSON: No you need to refer to Cronje, or van der Merwe, and I think I should correct myself, when I said that I thought there was booklet of van der Merwe, I think it was submission he made. It was not a record of his evidence, it was submission made by him.

MR VISSER: That’s Exhibit P40, 44, 45 and 46, Mr Chairman, you will recall. It’s those three exhibits that were handed in two years ago.

CHAIRPERSON: But ...(intervention)

ADV DE JAGER: But they were incorporated in your applications here.

CHAIRPERSON: You mentioned them in your applications.

MR VISSER: That is correct.

MR DU PLESSIS: Mr Chairman, for instance, let me give you another example. The question about the order, with General Coetzee and the question in the First and Schoon incident, if the order had come to Brigadier Goosen from anywhere else or not, there was a lot of cross-examination of Brigadier Coetzee on that point, on the question could it perhaps, on probabilities, have come from higher up. There was evidence that it could have been. Mr Williamson testified that it could have been. Now I want to argue before this Committee that the probabilities go further than that, because we have examples of that. ...(intervention)

CHAIRPERSON: Mr du Plessis, if you are going to rely on factual evidence to argue, then I think you should have asked far more questions of your witness Raven then a general question, had he read it and did he agree with it.

MR DU PLESSIS: Mr Chairman with respect, I, we have been in a position where we have been given an indication by the Committee that a lot of the evidence that we wanted to present, we could simply ask a question, do you confirm what is stated in this affidavit, and then he confirms it. We were pressed for time ...(intervention)

CHAIRPERSON: That is not when you are going to then raise what I understand to be extremely controversial points on that. Is it controversial Mr Bizos?

MR BIZOS: I asked whether ...(indistinct) and I put two or three questions that such as your lordship put to me, surely you can admit that. But I said does it go further? And the answer was, yes, without my having been given any de, or any substantial detail of what it is that he wants me to admit Mr Chairman.

MR DU PLESSIS: Mr Chairman it relates, for instance, to ...(intervention)

ADV DE JAGER: Mr du Plessis, could you kindly refer me to, you’re appearing for Raven, any other one? Only Raven? So in Raven’s evidence we’ve got the bundles here, refer me as to his evidence, the page number, so that we can see what’s been incorporated in his evidence.

MR DU PLESSIS: If I can refer you to page 1864, as well as the application Mr Chairman, because in the application, Mr Raven says specifically, refers specifically to this. I haven’t got the application with me here, Mr Chairman. I just have the evidence where it was presented.

ADV DE JAGER: I’ve got the application, and perhaps you could look at it and ...(intervention)

MR DU PLESSIS: I would appreciate that.

ADV DE JAGER: Raven’s, the evidence where?

MR DU PLESSIS: Page 1864 Mr Chairman.

MR DU PLESSIS: Mr Chairman that refers to page 41. Now that seems to be on page 105 of the application. I’m not a hundred percent sure. We refer there to

"Certain submissions made by General van der Merwe, evidence by Brigadier Jack Cronje, you also heard evidence by Mr Craig Williams, do you agree with ..."

well it says there:

"... his evidence, pertaining to the political objectives",

but ...(intervention)

CHAIRPERSON: But those are submissions, not the evidence.

MR DU PLESSIS: It says evidence by Brigadier Jack Cronje. It states there evidence.

CHAIRPERSON

"I again refer the Commission to he submissions of General Johan van der Merwe and the Generals in front of the Human Rights Violation Committee as well as those submissions made by Brigadier Jack Cronje."

MR DU PLESSIS: Yes, I’m sorry, you’re reading from the application Mr Chairman, I’m reading from the evidence. If you look at the application, that is correct. It says

"The submissions of General Johan van der Merwe and the Generals in front of the Human Rights Violation Committee, as well as those submissions made by Brigadier Jack Cronje. It is now clear from all the evidence in front of this Commission."

And then Mr Chairman, in the evidence, 1864, page 1864, I read:

"You refer there to certain submissions made by General Johan van der Merwe, evidence by Brigadier Jack Cronje, and you’ve also heard the evidence by Mr ..."

...(intervention)

CHAIRPERSON: Where are you reading from?

MR DU PLESSIS: Page 1864 Mr Chairman.

CHAIRPERSON: Not from the application?

MR DU PLESSIS: No, no, the evidence of the record. The record Mr Chairman.

ADV DE JAGER: 1864?

MR DU PLESSIS: 1864 of the record, Mr Chairman.

ADV DE JAGER: That one deals with the political objectives.

MR DU PLESSIS: Yes. And then it says

"... and you were also told in broad terms what the evidence of Mr Adriaan Vlok was.

"I was."

"Do you agree with that?"

"I do"

He didn’t read that evidence specifically.

And then he confirmed the correctness of all the pages pertaining to the political objectives. Now that was never challenged in cross-examination, Mr Chairman. And that’s the only point I’m trying to make. Is if this was challenged in cross-examination, then I would have, I would have in all probability have called one or other of these witnesses, or I would have presented you with the, that document compiled by the four police generals, and I would have said I want to tender this in evidence. I would have asked Mr Bizos does he agree, does he not agree, do I have to call one of the generals.

ADV DE JAGER: You see, let’s analyse this now. You’ve asked him

"Do you agree in broad terms with the evidence of Mr Vlok?"

Now, I’m taking and example, you refer us to line 41, page 72, of Mr Vlok’s evidence. Where Mr Vlok would state:

"I ordered this"

... or whatever. His evidence was:

"I agree in broad terms with what Vlok said.

Can we then accept that he agreed with what Vlok said in line 71? MR DU PLESSIS:   Yes, Mrs Chairman, and if, the point of ...(intervention)

ADV DE JAGER: Go as far as that?

MR DU PLESSIS: Yes, yes.

ADV DE JAGER: ...(indistinct) in broad ...(indistinct)

MR DU PLESSIS: Yes, and if there was any doubt, Mr Chairman, I would have asked to call Mr Vlok. That’s the point I’m trying to make

ADV DE JAGER: ...(indstinct) to say, the evidence as far as Vlok, I’m only dealing with this now. I’m agreeing in broad terms with what Vlok said. I’m not agreeing in detail with what Vlok said. Now you’re referring in detail, to what Vlok said. Can we, or can I, I’m speaking for myself, can I then say, okay you’ve put it? But now you’re dealing with detail, you’re not dealing with in broad terms. In broad terms maybe there was a situation almost similar to war. Now, Vlok is giving evidence about a battle fought at Magersfontein, and he’s stating that this was the position of the armies there. Could I accept that Raven also agreed that General A and lying in that position, and General B in that position?

MR DU PLESSIS: Mr Chairman if there is any, if there was ever any doubt, which I didn’t understand from the Committee there would be, and that I didn’t understand from my learned friends that there would be, then I would have led Mr Raven’s evidence with reference ...(intervention)

ADV DE JAGER: Mr du Plessis you, we’re dealing with the conflict of the past.

MR DU PLESSIS: Yes.

ADV DE JAGER: In my mind, there’s no doubt in my mind, that there was a conflict in the past.

MR DU PLESSIS: Yes, but I don’t know ...(intervention)

ADV DE JAGER: But if there’s a certain specific sting in the conflict of the past, I may not know about it. And that’s what the detail is about.

MR DU PLESSIS: Yes.

ADV DE JAGER: But as far as the general background is concerned, I may be open to criticism here, but if anybody could tell me there wasn’t a conflict in the past in this country then I have not been living her.

MR DU PLESSIS: Mr Chairman that is why I do not understand why Mr Bizos wants to oppose this. I do not understand, I have said that I am willing to, I have already drawn his attention to the specific passages. He can come back and say he disputes specific passages.

ADV DE JAGER: I think Mr du Plessis, in all fairness, if your submission would be that there was a conflict in the past, and it was substantiated by evidence in different cases. But the moment you come and say I want to pin down the conflict of the past to this sentence, in this evidence, then I think you should have put it in detail, that little sentence, you should have referred in more detail to it. But as a general background, of the conflict in the past, I think it would be permissible to refer to a finding of the Amnesty Committee in matter number so and so, or by another committee in that matter or that, but the moment it comes to a detailed instruction in, for instance, going from A to B, then it can’t be argued that because there was instructions in the past that you could order somebody to go from C to D, it should also be inferred that this order was given here.

MR DU PLESSIS: But Mr Chairman, may I, let’s perhaps just pinpoint it to specific points that I’m making. The one main point that I’m making is that people were congratulated for illegal activities. And in that regard I refer to the evidence presented at the Cosatu Khotso House hearings, at the evidence pertaining to Zero hand grenades, at, to the evidence of certain incidents in the Cronje matters, and Brigadier Jack Cronje’s evidence. Something else, for instance, there were never any questions asked about operations, and I refer to the Khotso House hearings. ...(intervention)

ADV DE JAGER: ...(indistinct) I find nothing wrong with referring to certificates being issued at this occasion, it’s been done previously as you know in the Cronje matter, or that or whatever. But then you would say, I refer to the evidence of Raven. He’s confirming that certificates have been given to those and that ...(indistinct). It’s only the manner in which you are introducing the evidence of Cronje by referring to his evidence as such, on which a certain conclusion was drawn. I’ve got no problem if you refer to a conclusion about the conflicts of the past, that’s been accentuated by this Committee or another Committee, or whatever. And if you’ve included, by reference, and as the Chairman said, ‘I make it available’. Mr Visser made available all the previous documents, P1, 42, 43. I’ve often criticised him and said, do you really want us to carry all these papers in every application? But at least, the other people who weren’t there before, were made aware of, and they were made available to them if they want.

Okay you would argue now that Mr Bizos never asked for the Cronje papers. I think, if you really go into the, I don’t know what you’ve been quoting here from Cronje’s evidence, but it may be that Raven has given evidence here for more than a hundred pages, about what he understood was the position. From his own evidence wouldn’t it appear that he, in his own evidence, has already given the evidence you’re now relying on in Cronje’s record?

MR DU PLESSIS: Yes, in some instances that is true Mr Chairman. May I just respond to something here, Mr Chairman, then I have laboured on a, under a total misconception, about the way the Committee wanted us to approach the reference to other evidence and reference to documents, Mr Chairman. And I will keep that in mind in future. And then, with the greatest of respect to you Mr Chairman, then I’ve been pressurized quite a lot of time into incorporating evidence without referring to detail, and I will just simply be placed in a position, taking note of what you said now Mr de Jager, that I’ll have to ...(intervention)

ADV DE JAGER: I think in some way or other it was before us there. You’re referring to an affidavit, and said you need not repeat the contents, but it’s handed in as an Exhibit N or whatever it may be, but it’s before us in a form but you didn’t hand in Cronje’s evidence. So trouble is arising in this case.

MR DU PLESSIS: I take the point, Mr Chairman, and if I was made aware of the, if I’m criticised now about that, because I was brought under the impression by the Committee and by everybody else here concerned, that I could do that to expedite matters, and it is now being held against me and my client, because of the fact that I wanted to assist the Committee in saving time Mr Chairman, then that is unfair, with respect. Then I’m going to ask the Committee for my client to be recalled, and then I’m going to refer my client to all the passages that I wanted to deal with, that I wanted to incorporate in my Heads of Argument, to place that evidence before you, Mr Chairman. Because then I was placed in a position that I’m now confronted with criticism about the evidence that I led that I wasn’t aware of was going to arise.

ADV DE JAGER: You see I think the main trouble we’ve got is computers. It’s been transferred from one argument to another argument, arguments that’s been used in previous cases, and the reference is being transferred into ...(indistinct)

MR DU PLESSIS: But it really ...

NO SOUND

ADV DE JAGER: Wasn't it dealt with in effect, it dealt with by the witnesses here?

MR DU PLESSIS: Mr Chairman let’s take the one argument, which is really a difficult argument, and that came out in cross-examination by Mr Bizos. They are saying that Brigadier Goosen and Williamson and Raven acted on a frolic of their own. Now I want to rely, Mr Chairman, for purposes of my client, although he received an order from Mr Williamson, I’m not a hundred percent sure how you’re going to look at my client from that point of view, if you’re simply going to accept that he received an order and that’s it, or should I deal with the question, was there an order perhaps from higher up?

Now part of this whole argument, to you Mr Chairman, is to say to you, look at the practice in various other situations. Let us look at what happened in the Pebco matter, how that order was given. Let us look at the Khotso/Cosatu House hearing. Let us look at Zero Zero hand grenades. Let us look at a few others, where the communication channel was not according to the normal channels, but outside the normal channels, where President Botha gave the order, in certain instances, Minister le Grange on three or four occasions, gave the order, right down. It’s possible that it went right past General Coetzee, that he didn’t know about it. And that is why he’s testifying today that he never knew about this order.

So the point is, I want to present you with argument that on the probabilities, as Mr Williamson has testified during my cross-examination as well, that order came from higher up than simply Brigadier Goosen who decided he was going to act in a frolic of his own.

ADV DE JAGER: But that’s not about the conflict of the past.

MR DU PLESSIS: No but that’s why I say, it goes wider than the conflict of the past, the references to other hearings. It goes wider than that.

ADV DE JAGER: Where you’re dealing, where we’re now at this present stage dealing with your argument, it’s about the conflicts of the past.

MR DU PLESSIS: Yes Mr Chairman, but we’re arguing about the principle, with respect, because ten pages on we’re going to reach this problem. And it’s going to be the same problem. Am I allowed to refer to evidence in the Khotso/Cosatu House hearings, that in that incident an order came from President Botha, not according to the normal channels, via Minister le Grange right down. And am I going to say, look, this is an example of how this was dealt with at that time. That created the atmosphere and the situation of a belief in the people that this was authorised, this was how it was done.

Now either I must be allowed to refer to that evidence, to support my argument on the probabilities that this order came from higher up and just not from Brigadier Goosen, Mr Chairman, refer to the evidence I beg your pardon. Or I must recall Mr Raven and lead his evidence about it, which is not going to help us, because he doesn’t know about that evidence.

ADV DE JAGER: I don’t think on the need to know basis that was emphasized he would ever have know about what was happening in another incident.

MR DU PLESSIS: Yes but I’m in a quandary Mr Chairman, because I don’t know. If the Committee tells me, it’s not necessary, we will only look at Mr Raven’s situation from the point of view of the order of Mr Williamson, and if I prove that he received an order from Mr Williamson that’s enough for the purposes of the Act, that’s fine, then I will leave this point. But I don’t know. I don’t know, and I have to present my client’s case to the best of my ability. And as far as I can see it now, Mr Chairman, the best of my ability is to present you with argument that, at that time it was very likely than an order such as this, an illegal order, would have come from higher up. So that it wasn’t just a frolic of Mr Williamson on his own, which then involved my client, or Brigadier Goosen on his own, which then involved my client, but that it was much closer to a formal, official order, even ‘though it was outside the legal situation. And for purposes of that I have to refer to the evidence in the Cronje hearings, in the Khotso, Cosatu House hearings ...(intervention)

ADV DE JAGER: I don’t want to enter into details, but as far as I understood the evidence, nobody really knew that it came from three up, higher up. He received his order from the next man above him. He didn’t know whether it was coming from Mr Vlok or from Mr Williamson. He received an order from Williamson.

MR DU PLESSIS: Yes but Mr Chairman, now you decide, on Mr Bizos’ argument, Williamson acted on a frolic of his own. And then you come to the conclusion that my client ...(intervention)

ADV DE JAGER: Acted on the order of Williamson.

MR DU PLESSIS: No, or Mr Chairman, was unreasonable under the circumstances, because it was an illegal order. And in terms of 22F, it was unreasonable for him to have thought that this order could ever have been a justified order. And then you say my client ...(intervention)

ADV DE JAGER: ...(indistinct) illegal because otherwise you wouldn’t have been here if it was a legal order.

MR DU PLESSIS: No, but I’m talking of an order outside the normal scope of orders, Mr Chairman. These are all the problems that we’re faced with, and it creates serious problems. If I have the confirmation from you that that evidence is not necessary, and I can just rely on Mr Williams’ evidence, that’s fine Mr Chairman. But what do I say to my client if I do that and he doesn’t get amnesty? That is my problem, Mr Chairman, with the greatest of respect. And I don’t want to belabour these proceedings.

My personal view of this, Mr Chairman, and that’s my submission, is that none of this evidence that I rely on, with reference to these actions of the police and authority, etc., etc., can be disputed by Mr Bizos because his clients weren’t in the South African police. They didn’t know about this. They have no, unless Mr Bizos tells me that he has specific facts provided to him by persons who were in the system. But I do not know on what basis he wants to oppose that kind of evidence, of people who were in the system, who testifies about how it worked. Why does he want to oppose it? The only reason, Mr Chairman, is ...(intervention)

ADV DE JAGER: The only basis why he can oppose it, is because he would say, if you want to use evidence in this case, I must be warned that you’re going to use this evidence, and I am then entitled to say I want to cross-examine this witness. I am not prepared to accept an affidavit.

MR DU PLESSIS: I understand that Mr Chairman, and I was led to believe that that wasn’t a problem. Mr Chairman I cannot take this further ...(intervention)

CHAIRPERSON: What worries me most, Mr du Plessis, is that the passage you have referred to us, as your authority, you say

"Alright, can I just ask you pertaining to the last paragraph on page 41. You refer there to certain submissions made by General Johan van der Merwe, evidence by Brigadier Jan Cronje. You have also heard the evidence of Mr Craig Williamson. Do you agree with his evidence pertaining to the political objectives?"

"I do."

There is no mention whatsoever of him confirming or agreeing with the evidence of Cronje.

MR DU PLESSIS: Well, Mr Chairman, well - Mr Chairman on page 1864, he says

"You refer there to certain submissions made by General Johan van der Merwe, evidence by Brigadier Jack Cronje. You have also heard the evidence by Mr Craig Williamson. Do you agree with his evidence pertaining to the political objectives?"

"I do."

CHAIRPERSON: Yes, he’s being asked if he agrees with Craig Williamson’s evidence.

MR DU PLESSIS: No, but that's why ...(intervention)

CHAIRPERSON: Pertaining to the ...(intervention)

MR DU PLESSIS: That’s why I said, Mr Chairman, it says

"... his evidence",

... but clearly the question related not to just Craig Williamson’s evidence but to the others as well.

CHAIRPERSON: I don’t agree with you at all. I’ve no doubt that that could be Craig Williamson who had referred in his evidence to the political submissions of the others.

MR DU PLESSIS: Mr Chairman, I hear what you say, and I will take note of this in future applications, and with respect, Mr Chairman, I will then not be led by indications pertaining to the length of the evidence, and present it the way I think I should.

If you are of the view, Mr Chairman, that I cannot refer to this evidence, that it wasn’t properly incorporated, and you’re not going to give me a chance to recall Mr Raven, or call these other witnesses, then I’m in your hands, then I need a ruling pertaining to that, and consider my position pertaining to that, Mr Chairman.

MR SIBANYONI: Mr du Plessis, before saying that we are not prepared to give you an opportunity to recall, are you asking to recall those witnesses?

MR DU PLESSIS: In the light of the views expressed by the Members of the Committee, Mr Chairman, that is my only alternative.

CHAIRPERSON: But there is no evidence before us on this. You now say you want - On this issue you want to now reopen the whole case, on the fact that there was, what is it you say in your Heads? You say that there was a low intensity war between the South African Government, the National Party, and the liberation movements.

MR DU PLESSIS: No, Mr Chairman, it goes further than that. Perhaps I can take you a little bit further, to certain parts of the evidence. It goes a little more in detail. May I take you to - if you’ll just bear with me please.

MR VISSER: While my learned friend is looking, Mr Chairman, may I point out that I haven’t had an opportunity. I would like just a short moment to address you before you make a ruling, Mr Chairman.

MR DU PLESSIS: Paragraph 77, Mr Chairman. Where it says that

"Mr Vlok testified that the climate was created that the Security Forces could act illegally and no questions were ever asked, or reports required, of illegal actions."

The point is that not just in this incident, but in a lot, in lots of other incidents, the same situation prevailed. No questions were asked. Then paragraph ...(intervention)

CHAIRPERSON: Now did you ask Mr Raven about this? Because it has never been the practice of this Committee, as far as I know, Mr du Plessis, that you can rely on evidence given at other hearings. You can rely on principles, matters of general implication, but not factual evidence. We have not pressed you to say, don’t lead evidence here, tell us what evidence he gave somewhere else. That has not been our policy Mr du Plessis.

MR DU PLESSIS: Well, Mr Chairman, if that is so, that is going to mean that in every further amnesty application, I’m just pointing this out Mr Chairman, in respect of that kind of point, where we deal with a lower ranked officer, and this is necessary to prove his case, we will have to call Mr Vlok on, and General van der Merwe, and Brigadier Cronje, for instance ...(intervention)

CHAIRPERSON: Not people who made representations which have been accepted by the TRC, which are openly available. You don’t have to call them.

MR DU PLESSIS: But I can’t rely on their evidence.

CHAIRPERSON: You can rely on the submissions made, as you can on others, as has been our practice throughout.

ADV DE JAGER: It can be handed in like this ...(intervention)

CHAIRPERSON: We have, I don’t know how much we’ve heard about the ANC submissions. People haven’t been called to give evidence.

MR DU PLESSIS: So what you are criticising me of, Mr Chairman, is simply that I didn’t hand the specific evidence that I want to rely on, to you in the evidence.

CHAIRPERSON: No. When you are trying to rely on factual evidence, given in other proceedings, then you must raise it clearly, that it is that evidence. Where it is submissions he has made, you can hand the submissions in, or you can refer to them, because they’ve already been handed in to the TRC. But if you want to say that, Mr Vlok gave evidence that he was the person who paid the taxi that took them to this place, you can’t just refer to the evidence you gave elsewhere for that - to prove that.

MR DU PLESSIS: Yes, so I will have to call, to put to Mr Raven, this was the evidence that Mr Vlok testified about at the Khotso/Cosatu House hearing, that is what he said, what is your comment on that?

CHAIRPERSON: Yes. And if he says I accept it, I believe it, that was the position, he has then given that evidence.

MR DU PLESSIS: Well, if I was brought under the impression that that is, that what I had done in the evidence was enough to be able to refer to the evidence, and it now seems it isn’t, firstly, I will do that in future applications.

And secondly, Mr Chairman, if I’m not allowed to reopen my case now, and call Mr Raven to do that, I make an application to do that then.

CHAIRPERSON: You can do that at the conclusion of argument, because it may well be, when argument is concluded, you find that the question is totally irrelevant.

MR DU PLESSIS: As it pleases you, Mr Chairman.

MR LEVINE: Mr Chairman may I set out my position, insofar as I’ve been mentioned, peripherally? I was asked by Mr Bizos' attorney whether I rely on the extracts of the evidence in other matters. I said that I’ve made no reference to these other, to this other evidence in my Heads. It does not mean that if the Committee accepts that evidence, I can’t urge that as part of my client’s argument. But Mr Chairman there’s certain guidelines, as I understand, were laid down in Jack Cronje’s case. I don’t have the pages before me, but I think it’s pages 2, 6 and 7, and those were general guidelines in regard to that evidence.

And I think, Mr Chairman, with great respect, that if those guidelines are at variance with what is now being suggested, then there requires to be a definitive ruling on the matter, because whatever that ruling is, what has happened in the past impacts upon those judgment in the past, and may very well affect the manner in which these proceedings are going to be conducted in the future.

CHAIRPERSON: We do not reflect on that at all. We agree that those general submissions can be adopted. What I am simply saying is I do not, it has never been the policy, that evidence as to a particular factual event, given in another case, another hearing, can be relied on with no other reference in a subsequent hearing. On the factual issues. That I’m the person who pulled the trigger, or something of that nature. That must be raised in evidence at the hearing. It can be raised, as Mr du Plessis put it, and I think correctly. You can ask your witness, did you hear him say this? You don’t then have to call the other person. But to put in a general, what was being discussed at the time was Mr Craig Williamson’s political objectives, and then just say that that is justification for referring to factual evidence given in other hearings, where no record has been placed before us, is, I think extending the thing far too far. If you want a ruling, we will give you a ruling. After lunch, do you think? After lunch. In the meantime you can continue.

MR VISSER: May I just also have an opportunity Mr Chairman, seeing that everybody else has. I’ll try to be brief. I understand, I think Mr Chairman, the dilemma at this stage, and I think I understand that there are two separate issues here. The one is, as you have been at pains to explain, where the one witness simply wants to rely on a specific fact in the chain of events on the evidence of someone else, then obviously that part has to be stated and has to be put, has to be placed, in the arena, so that all interested parties can deal with it. I can understand that.

But Mr Chairman, our concern is that there remains a grey area. The grey area, Mr Chairman, perhaps with reference to Exhibit VV in the present case, that might explain the grey area which we’re now becoming concerned about. It’s the affidavit of Brigadier Willem Schoon which we handed in, our Exhibit VV. I see it wasn’t an affidavit, it was a statement handed in of his evidence, but it was his evidence, Mr Chairman. And at the bottom of the first page, you will see the way in which we’ve dealt with this. And I’m going to refer you briefly to the evidence of Mr Taylor as well. And then I will put my problem to you, Mr Chairman. It’s VV, I might have a copy here.

CHAIRPERSON: ...(indistinct)

MR VISSER: We are totally swamped with papers at this stage. We’ve already got an extra table here, Mr Chairman. No, it’s the one that says Brigadier Willem Frederic Schoon, and it was handed in as Exhibit VV. We don’t seem to have a spare copy Mr Chairman.

CHAIRPERSON: UU2?

MR VISSER: No, no, VV, Mr Chairman. UU if I remember correctly was the application form.

CHAIRPERSON: UU2 is an affidavit.

MR VISSER: Oh, that’s the affidavit, no. No I’m not referring to that. That was the one before the Harmse Commission. No, VV Mr Chairman. Perhaps if I may show you what the document looks like, it might be easier.

Perhaps I can just read it Mr Chairman. It really will make the point quite concisely. What we have done here Mr Chairman, is led him, that is Brigadier Schoon in evidence, to say he incorporates in his application, one, Exhibit P35, Exhibit P46 and Exhibit P47. May I pause there for a moment? Ms Patel has done her homework in this particular application, because having read that as having appeared in Form 1 of the application of Brigadier Schoon, she had the document prepared, and we arrived here, and it was given to the people who hadn’t seen it before. That, Mr Chairman, you will also recall, and I refer back to what Commissioner de Jager has just said a few moments ago, there were applications where the Evidence Leaders hadn’t done that, and where none of us had that evidence before us Mr Chairman, and it was decided, and we have great respect and gratitude for that attitude of the Amnesty Committees, that it cannot be expected from these applicants to bear the costs of producing those numbers of pages every time. And it was accepted on that basis, Mr Chairman, by all concerned. But that is as far as those are concerned.

Then he goes on, Mr Chairman, and says:

"Evidence of former Minister Adriaan Vlok regarding the Khotso and Cosatu House incidents, evidence of General Johannes van der Merwe ..."

... in the same applications.

"... my own evidence before the Amnesty Committee regarding the Cosatu House incident."

MR VISSER: That's another issue again, but it is on record Mr Chairman, presumably falling within the same category although it is his own evidence. And then the evidence he gave on the 19th of November 1996, affidavits which he made in reply to what was stated by Mr Dirk Coetzee, etc., etc. And what, Mr Chairman, how we’ve dealt with this. And then of course the armed forces hearing, etc.

As we’ve dealt with, we have dealt with this, as is stated for example at page 2371, I could have taken any of the others, they’re all the same. This was just the one that came to hand, it's the evidence of Mr J B Taylor and, Mr Chairman, and he says at the bottom of 2372:

"Mr Taylor you have taken note of the contents of certain exhibits which served before this Committee, Exhibits P45, P46, P47, and you wish the contents of those exhibits to be incorporated in your application.

TAYLOR:   I do indeed.

MR VISSER:   You have also been informed of the evidence which was given by Mr Adriaan Johannes Vlok and General Johannes Velde van der Merwe, presented to this Committee, well to the Amnesty Committee at the amnesty hearings regarding Cosatu House, the Khotso House, and Cry Freedom incidents. Is that correct?"

"That is correct."

"And you make common cause with that evidence, and you also asked for the evidence to be incorporated in your evidence here?"

"That is correct."

Now Mr Chairman, our concern is this, and I really have great sympathy for what Mr du Plessis is trying to say. This is a Commission of Inquiry. We don’t work here according to Supreme Court rules. It would just not have been feasible to do so. We all have realised this for two years now. We try to work it on the most pragmatic way in order to get the job done.

Now, Mr Chairman, once you start doing that, it becomes a sui generis situation which is going to depend largely on the co-operation of everybody. And really, if - Mr Chairman we could throw spanners in the works, as we go along, to such an extent that we could grind the whole system to a halt. I’m not saying my learned friend Mr Bizos is doing that, but what we have done here ...(intervention)

CHAIRPERSON: So that again, the passage you have - as I understood it, it is the general sense of what they said, not specific incidents.

MR VISSER: I have an understanding for that, and I have no problem with that. The only point I’m making now, Mr Chairman, is, if you understand Mr Bizos, and Mr Bizos’ objection as affecting the way in which we have been dealing with the situation, then Mr Chairman, we must have a ruling. Because if I ...(intervention)

CHAIRPERSON: I understand it as this, he is being referred to specific passages that he knows nothing about, and hasn’t been informed about, and no evidence has been led about them.

MR VISSER: But if I may just conclude Mr Chairman ...(intervention)

CHAIRPERSON: And as I said earlier Mr Visser, had there been some consultation between counsel, as is normally the practice, it appears to me the whole of this could have been avoided and we could have avoided wasting most of today.

MR VISSER: Mr Chairman, I’m only concerned about one thing, and that is that we want to know whether we’ve been going about this the correct way. It’s as simple as that. And we’ve given you examples and you have come through a number of applications with us, you know how we go about things. Mr de Jager made ...(intervention)

CHAIRPERSON: And we have never, have we, allowed details evidence from other matters to be ...(intervention)

MR VISSER: That is so. That is so Mr Chairman, but we’ve never had an objection either. This is the first one.

CHAIRPERSON: Nobody’s ever done it.

MR VISSER: Yes. Well Mr Chairman that’s my only concern. Is to know that we are still within the limits of what you expect from us, and what you will allow.

MR BIZOS: May I just respond to a rhetorical question by Member of the Committee, Mr de Jager? We do not contend, and we do not put in issue, that there was a violent conflict in the past. There is a legal presumption to that effect, preventing us from doing it. The postscript of the interim constitution and the preamble to the Act under which you are, we are operating, that is not our case Mr de Jager.

CHAIRPERSON: ...(indistinct) go a bit further and admit that a climate was created where the Security Forces believed they could act illegally and no questions were ever asked or reports required of such actions.

MR BIZOS: Yes Mr Chairman, I think that’s what I put to General Coetzee.

CHAIRPERSON: You agree to that?

MR BIZOS: Yes, Mr Chairman.

CHAIRPERSON: That’s paragraph 77. Well that’s what we ...(intervention)

MR BIZOS: But this does not ...(intervention)

CHAIRPERSON: Well that is the point I’ve been trying to make from the beginning, that it seems if Mr du Plessis merely advanced his argument without relying on the references he makes, you would probably agree to most of them.

MR BIZOS: This is why ...(intervention)

CHAIRPERSON: If you don’t you have to argue against them.

MR BIZOS: Yes, Mr Chairman this is why I asked for the admissions of fact to be formulated, which ...(intervention)

CHAIRPERSON: I don’t think they have to be admissions of fact. Is there any reason why Mr du Plessis should not advance the argument set out in these paragraphs?

MR BIZOS: No, and he has sufficient evidence ...(intervention).

CHAIRPERSON: If you want to try to argue later that he hadn’t got any basis for them, you could do so and he can reply to you.

MR BIZOS: Absolutely, Mr Chairman. But I don’t want to be faced, with respect, with specific evidence in relation to authority and how authority was calculated, as deposed to in another case.

CHAIRPERSON: We have said - We made it clear from the beginning, I thought, Mr Bizos, that we were not going to have reference to the other cases. We were not going to quote them as authority. But as I understand, most of this is not disputed. So if Mr du Plessis can merely continue with his argument, without making these references, if you contest them, you can tell us why, and he can then deal with them. And we might then have to consider the question of the necessity of evidence. But it seems to me, most of them you won’t. We all know what was current, what existed at that stage.

MR BIZOS: Mr Chairman you will be able to, you will be able to, judge what the effect of our argument is going to be, and it is not that there were not conflicts in the past, but I think that I’ve made myself clear as to what we can agree to and what we cannot agree to.

MR DU PLESSIS: Thank you Mr Chairman. Mr Chairman, may I perhaps just request, I see it’s one o’clock now in any case, I don’t know if you want to ...(intervention)

CHAIRPERSON: Are you prepared to continue with your argument without referring to these, and if Mr Bizos contest them you can then raise the questions.

MR DU PLESSIS: Yes, but I would still prefer that there’s a ruling on that, Mr Chairman, so that we know exactly where we stand ...(intervention)

CHAIRPERSON: A ruling on what, Mr du Plessis, the admissibility of facts set out in evidence elsewhere, that have not been referred to in evidence?

MR DU PLESSIS: Alright, Mr Chairman, I’m in your hands. I’ll leave it at that.

CHAIRPERSON: We’ll now adjourn for half an hour.

COMMITTEE ADJOURNS

ON RESUMPTION

R U L I N G

CHAIRPERSON: We have been asked to give a ruling on a submission by Mr du Plessis, that having asked his witness, Mr Raven, whether he had read certain evidence, he was thereafter entitled to refer to specific passages in that evidence.

We are of the view that where a witness is asked in general terms whether he has read the evidence given by some other party, at other proceedings, reference can thereafter be made to the general tenor of that evidence and any general submissions that person made in the course of his evidence. We are, however, of the view, that no reference can be made in the sense that it becomes admissible as evidence, of any specific passage contained in that evidence. If it is desired to make use of such passage the evidence should either be made available, and the witness being questions should be referred to that passage, or he should be specifically questioned about the passage and as to whether he agrees with what was said there.

In the present case, that was not done. We are accordingly of the view that the only reference that can be made to the evidence which he said he agreed with, was as to the general tenor of the evidence.

MR DU PLESSIS IN ARGUMENT: (Cont)

As it pleases you Mr Chairman. Mr Chairman, in respect of the Heads of Argument, I will then - I didn’t want to in any event refer you to the specific passages that I refer to in the Heads of Argument, and I will then simply say that where I refer to the Khotso and Cosatu House hearings, to the passages themselves, that that would then obviously, should be regarded as being excluded from my Heads of Argument, but I will still refer, as you have ruled now, to the general tenor of the evidence, which will be contained in the paragraphs where I make the specific statements.

Mr Chairman, if I can refer to paragraph 67, page 40, the evidence was, of Mr Raven, as well as Mr Williamson, and in other hearings, was that the Communist Party and the ANC were involved in a people’s war. May I just remind you, Mr Chairman, what we are busy with, is we are busy with the requirement that an act must have been committed in the course of the conflicts of the past, and I’m continuing from paragraph 67.

Then, Mr Chairman, paragraph 67.1, page 42, is the same tenor, I’m not going to refer to that specifically.

Paragraph 68, the evidence furthermore showed that the National Party and the South African government had to resort to counter-revolutionary and counter-insurgency tactics and strategies, to combat the tide of violence, and to combat the people’s war conducted against the government and the National Party. The fact that the South African government developed a counter-revolutionary strategy was confirmed in the evidence, I beg your pardon, in general terms, as you’ve ruled now, I refer to the evidence of General van der Merwe.

Mr Chairman, then you will see on page 43 in this regard, I also refer to the evidence of Mr Raven. That’s the first record reference there, page 1853 to 1865. And also page 59. I think that’s General Cotzee’s evidence.

Then, Mr Chairman, if we can turn to page 45, I make the point there, although there are not specific references to the evidence, that the strategy was developed in respect of cross-border operations, which were authorised by the State Security Council, I think Minister Botha testified to specific such cross-border operations. And then it was developed by way of the South African police working with the SADF and special forces. And then such cross- ...(intervention)

ADV DE JAGER: You said Mr Botha. Oh, Mr Pik Botha?

MR DU PLESSIS: Yes, Minister Pik Botha. He didn’t testify but made statements during cross-examination to certain authorised operations. Then paragraph 68.3 should be read as a reference to the fact that President P W Botha authorised certain cross-border operations. It was the government that authorised it. And then I make the point in the First, that should be reference to Ruth First, it should have been capital letters, and Schoon incidents, the probabilities are overwhelming that either Mr Botha, that’s our President P W Botha, Mr le Grange, the cabinet, or the State Security Council knew about the actions, and that they were authorised.

ADV DE JAGER: I don’t think it’s very material here, in this instance. It was authorised by President P W Botha. That’s a statement here.

MR DU PLESSIS: Yes Mr Chairman, I have said that that refers to cross-border operations. Yes, it’s not clear.

ADV DE JAGER: ...(indistinct) was representing ...?

MR DU PLESSIS: Mr Penzhorn. Yes, I’m not saying that it was - I’m saying cross-border operations, so you should perhaps, Mr Chairman, just amend that. Mr Chairman, then ...(intervention)

ADV DE JAGER: ...(indistinct)

MR BIZOS: Sorry, I didn’t hear the question.

ADV DE JAGER: Was Mr Penzhorn informed of the argument, that we will start argument on this?

MS PATEL: Mr Penzhorn’s assistant was present at the end of the last hearing, where the decision was taken, but I haven’t given specific further notifications as to argument being heard. But his representative was in fact present at the last hearing when this decision was made.

ADV DE JAGER: Yes, perhaps we should try and find out whether all the representatives are aware, for instance Mr Booyens has submitted argument, and I think he’s made arrangements. But, to find out whether there can’t be any misunderstanding about somebody not being informed.

MS PATEL: I might add that at the end of the last proceedings, I wrote to parties who weren’t present, informing them that the matter would be finalised during these two weeks, and if they so wished, they could tender further Heads of Argument or supplement oral argument here.

MR DU PLESSIS: May I carry on, Mr Chairman? Mr Chairman, in paragraph 68.3 I deal with this question of orders. I will come back to that, because I’m actually dealing here with the conflicts of the past, and I will come back to some of these references again when I deal specifically with Section 20(2)(b). It is, however, just as part of the background, necessary to refer to this.

In paragraph 68.3.1, I say that it’s possible that orders could have come from the Minister directly down to the Security Police, not according to the normal channels. Certain people only were used because they were willing to carry out these orders. These are examples, there are examples of direct orders bypassing certain superiors in the line function, and I refer to Mr Williamson’s evidence in this regard. The Khotso House, Cosatu House, Zero Zero hand grenade, and Pebco Three, that was deal with with Mr Williamson in cross-examination.

Then paragraph 68.3.5, Williamson assumed Goosen had an order or request from somebody higher up. There is a range of possibilities where Goosen’s order came from. As I say, I will come back to that. And then Minister le Grange gave the order in respect of the London bomb incident. In my submission there’s no problem with that line order, how the order came about in that matter.

Then 68.4 refers to the Cronje hearings, please ignore that, and also 68.5, as well as 68.6.

Then Mr Chairman, paragraph 69. The essence of the strategy was that the enemy had to dealt with in the same way as they had acted. This would entail that bombs should be thrown if they throw bombs, they should be killed if they kill people, and they should be intimidated if they intimidate people. This produced a new era of countering the people’s war of the liberation movements.

Then I refer to certain documents, in which, Mr Chairman, which are referred to in the Heads of Argument, and in which documents there is extensive reference to the counter-revolutionary strategy. This is part of the argument and obviously not part of the evidence.

CHAIRPERSON: Paragraph 70?

MR DU PLESSIS: That’s 70, 71, 72, 73 and 74, Mr Chairman. Two articles, Grundley’s article and Davis’ articles. And then paragraph 75, I refer to Trevits. Counter-revolutionary intelligence organisations such a Trevits were created, and Mr Chairman, I’m now dealing with the counter-revolutionary strategy as part of the main heading, Conflicts of the Past. And then most of the

...(gap between tapes)

52, paragraph 75.

CHAIRPERSON: Weren’t there other documents handed in to the TRC about this general submission by the military?

MR DU PLESSIS: About Trevits Mr Chairman?

CHAIRPERSON: Yes.

MR DU PLESSIS: I think there were, Mr Chairman. I’m not hundred percent sure, but I think it’s common knowledge already.

CHAIRPERSON: I think it was. It was fairly widely known.

MR VISSER: And of course there was a whole day of evidence before the TRC, which is of course on the, Human Rights Violations Committee, which is also on record.

MR DU PLESSIS: Thank you Mr Chairman. Then paragraph 76, I submit furthermore acts outside the normal scope of the legal process were therefore authorised and justified by the government. I’m not going to refer to General van der Merwe’s submission, but what I want to do, Mr Chairman, is here refer to specifically the cross-border raids, the Khotso/Cosatu House incident, and one can include here other incidents such as the Zero hand grenade incident. ...(intervention)

MR BIZOS: Mr Chairman could I appeal to my learned friend to give us the numbers, because ...(indistinct) We would like to mark which portions we have to deal with and which we don’t have to, so if you could clearly indicate to us which he contends he is still, by paragraph number, so that we can have a proper record, Mr Chairman.

MR DU PLESSIS: Yes Mr Chairman, I’m at paragraph 76, and in respect of the records, which record references, everywhere where it’s stated the Khotso/Cosatu House hearing, those must come out every time, and where there is reference ...(intervention)

ADV DE JAGER: Here you refer to Cosatu/Khotso House hearing, record so and so.

"This was reluctantly conceded by General Coetzee and supported by Williamson."

So it’s evidence before us. Raven’s evidence.

MR DU PLESSIS: Yes I refer to Raven’s evidence at the bottom of the page, and I can make a statement that it was reluctantly conceded by General Coetzee and supported by Williamson. That is so, Mr Chairman.

ADV DE JAGER: So it must have been put to them at least, do you agree with this, or don’t you agree with this. And that’s not our ruling, that you can’t refer to that kind of thing, where specific reference has been made to it, and the witness is conceding it.

MR DU PLESSIS: Yes, Mr Chairman, I understand what you’re saying, it’s just a bit difficult to distinguish between what you termed in your decision as evidence of a general nature of background incidents, and other evidence, so it’s a bit difficult for me, but thank you for pointing this out. This one obviously should not be excluded, and perhaps I should point out every time where it should be excluded or where not.

ADV DE JAGER: I don’t - I’m of view that I should decide whether it should be excluded or not in the end.

MR DU PLESSIS: As it pleases you then, Mr Chairman, then I won’t refer to it. Then I’ll just ...(intervention)

ADV DE JAGER: You could be helpful in saying that it may be excluded or not, but in the end it’s our responsibility.

MR DU PLESSIS: Obviously, Mr Chairman, yes. Obviously.

I say, Mr Chairman, as a result of these actions, in, I’m still at paragraph 76. As a result of these actions, the evidence of Mr Raven was, and the evidence of Mr Williamson was, and as I refer there to the fact that it was reluctantly conceded by General Coetzee, was that an, a situation was created Mr Chairman, where people started to become used to this idea that in certain instances these kind of operation are authorised. Some of the cross-border raids were authorised by the government from the highest level. Some of these incidents which happened within the country, were authorised from Ministerial level. So the people who were involved in these incidents obviously came to a conclusion that this is the kind of thing that is authorised, an we need not every time obtain such permission, and that this is the general tenor of the counter-revolutionary strategy, and that it requires from us to act outside the scope of the normal legal system, and outside the scope of the normal legal process.

If I can turn to page 54 ...(intervention)

CHAIRPERSON: Wasn’t that one of the great problems that arose in this country at that time? The feeling that it was consented to, but we don’t really have to bother to ask for consent any more. And we have heard in other applications where actions seems to have been taken as a favour to another police officer, without directly enquiring whether he’d consulted his superiors, but it would help him clean up a mess in his part of the world so you went along to help. It was just a general disregard for the normal stands expected of a police force.

MR DU PLESSIS: Yes, Mr Chairman, that is so. And that was fostered by the actions of the political leaders as well as the military leaders. We turn a blind eye, we don’t say anything, we don’t ask questions, because the actions favour us. We do not, and when a problem comes we turn around and we say, well we didn’t know anything about this.

CHAIRPERSON: Nobody ever told me.

MR DU PLESSIS: Yes. I’m totally innocent, Mr Chairman. So, at the end of the day, Mr Chairman, that is the situation the lower ranked persons found themselves in. And the more orders they received to act in this regard, the easier it became, and the more acceptable in their minds it became. Mr Raven testified, on page 54 I refer to that, that he accepted that the targets would have been high profile people. And then I just make the point Mr Chairman, that Gillian Slovo accepted that Mr Raven did not know her, and that was also the case in the evidence of Marius Schoon, of which I haven’t got the reference there. Mr Chairman, so, in this regard, and I’ll come back to this evidence, in this regard a climate was created, as I say in paragraph 77, which was supported by evidence of Mr Vlok, that the Security Forces could act illegally and no questions were ever asked or reports required of illegal actions. And the evidence in the Cosatu Khotso House hearings there was supported by General Coetzee and Mr Williamson.

Then paragraph 78, Mr Chairman. Mr Vlok testified that actions outside the normal scope of the legal process were necessary and inevitably, as leaders and perpetrators could not be detained or prosecuted, no witnesses were available, and attention would have sparked further unrest. Mr Williamson testified that other methods were available, and that was with specific reference to the Schoon and First incidents, but that the other methods were much more risky and difficult, to get to Ruth First and Jeannette Schoon or Marius Schoon.

Now, Mr Chairman, in this regard, the evidence was clear, and I think Mr Williamson gave evidence in this respect, although I don’t have the reference here. The Security Forces were in a position, Mr Chairman, that they simply could not prosecute an activist or a terrorist, or somebody that they wanted to prosecute for actions coupled to the people’s war of the ANC and the liberation movements. No witnesses were available. Witnesses were killed or intimidated. So there was really no way in which the legal system could have helped to deal with this. Evidence was also presented, and I think there is no dispute about that, that if somebody was detained he came out a hero. So that wasn’t an action that was regarded as very effective under the circumstances, although we know that there were lots of detentions and it was used.

In respect of Mr Williamson’s evidence about the letter bombs, Mr Chairman, the evidence was clear in respect of the Schoons, that they were very far away, that there wasn’t really any other alternative to reach them, except to use that method. And the same was testified in respect of Ruth First.

Mr Chairman, then paragraph 79. Reference is made to certain evidence at Brigadier Cronje’s hearing, which I will not refer to. The only point which I can perhaps make, which is of a general nature, is the fact that Brigadier Fichter’s order Brigadier Cronje at the time, was of a very general nature, confirming the counter-revolutionary strategy. If they burn, you burn. If they kill, you kill. That was the order. And then coupled to that, Mr Chairman, I refer to a video that was shown during those hearings, and the only important thing of that video was that President P W Botha in a public speech said specifically, the activists must be eliminated. Now these kind of statements by politicians and leaders simply meant, or contributed, to a belief by the Security Forces that they could act in such a way and that they could eliminate opponents.

CHAIRPERSON: And eliminate had one meaning and one meaning only.

MR DU PLESSIS: Obviously Mr Chairman. I won’t make any submission about that, that eliminate has ten different meanings in different contexts. It can mean only one thing.

Paragraph 80. I make the point there that the actions and orders are corroborated, and I have made that point, Pebco, Goniwe, Khotso House. Furthermore the applicants were congratulated repeatedly on their actions. It was furthermore fortified by no repudiation of any actions of the applicants, congratulations and medals were handed out, reports were discussed and sent to commanding officers which were never repudiated, and President Botha made speeches that terrorists should be eliminated. This all created this atmosphere, Mr Chairman, in the course of this conflict of the past.

Now Mr Chairman, I have said that the ...(intervention)

MR BIZOS: Mr Chairman I’m sorry to interrupt. The submission is not borne out, because all those on paragraph 80 were after the two deaths that we are dealing with here, Mr Chairman.

CHAIRPERSON: But that’s a matter for argument, isn’t it Mr Bizos. Carry on Mr du Plessis.

MR DU PLESSIS: Thank you Mr Chairman. Mr Chairman, if I can perhaps deal with the point Mr Bizos raised. I’m quite surprised about all the interjections. If I can deal with that, Mr Chairman, there was evidence before you about various cross-border raids at that time. I think there was evidence about the raids in Maputo. There was evidence about raids in Botswana. There was evidence about raids in Lesotho at that time. There was evidence presented about the killing of Zweli Nyanda and Keith MacFadden, in Swaziland in, I think, 1982. So there were various other examples of this. The Zero hand grenade incident, as far as I can remember, was the beginning of 1985, perhaps 84, I’m not hundred percent sure, Mr Chairman. And I refer to the cross-border raids. This is really a general picture I’m trying to paint, Mr Chairman. At that time we’ve heard evidence of Dirk Coetzee in matters that he was involved in. There were various other matters, the Kondile matter happened in 1981, I believe. There were various other examples which I can, could refer you to, and which contributed to this kind of action. The counter-revolutionary strategy of the government was already developed in 1979. There is evidence before you, and in the annexures to the Heads of Argument, that’s made very clear. In 1979 it was developed and it had already been introduced in 1982.

Mr Chairman, then paragraph 80, really repetitive of points I’ve already made and I’m not going to refer you specifically to that, except at paragraph 80.4, the evidence of General Coetzee, where he testified that no questions about the London bomb were received from Foreign Affairs or government. And that goes for the First incident and the Schoon incident, Mr Chairman. Nobody asked questions, not Mr Pik Botha, not Mr P W Botha, not any minister, not anybody, asked questions about these operations.

Then paragraphs 81 and 82 I’ll leave out of this, Mr Chairman, and then paragraph 83, the second part of that paragraph, I want to refer to. The First and Schoon, in respect of the First and Schoon operations, Mr Pik Botha never made enquiries. Enquiries were never made by government, Foreign Affairs and superior officers about the First incident, the Schoon incident, or the London bomb incident, according to Mr Williamson, and I give you the reference there, evidence reference there, where that was asked of him in cross-examination. Now, Mr Chairman, then the same point is made in paragraph 84. I’m not going to belabour you with that.

Paragraph 85, the point is made that, apart from the fact that no questions were asked, no action was taken. I refer to Khotso/Cosatu House and then especially to the First and Schoon incidents. Enquiries were never made about government Foreign Affairs about the London bomb, First or Schoon and I give you the references there. No objections were raised, that’s paragraph 86, it’s the same point Mr Chairman, I’m not going to belabour that. I refer to Williamson’s evidence on page 63.

Then paragraph 86.2 Mr Chairman. The only point I make there is that we know that Minister le Grange gave an order to act outside the legal system, illegally, in respect of the Pebco and Goniwe matters. We also know that that happened with the Zero hand grenade incident. And I want to make the submission there, although it’s not stated specifically in that paragraph, Mr Chairman, that there is a possibility that Minister le Grange could have given the orders in respect of the First incident, the Schoon incident, as well.

Then Mr Chairman, paragraph 86.3. We say that there was no repudiation of any orders, or any of these actions. I refer to Williamson’s evidence again. Paragraph 86.4 the applicants were sometimes congratulated and medals were received. I refer there to Raven’s evidence. Paragraph 86.4 and Williamson’s evidence, page 67.

68.4.1 to 4.4 is repetition. I may just mention, Mr Chairman, I didn’t have time to finally go through the last draft of my Heads of Argument, that is why certain of these paragraphs are repeated. I would have taken them out if I had time yesterday.

Then paragraph 86.5, I just make the reference to elimination and the Kannemeyer report that was referred to in Mr Williamson and Mr Raven’s evidence, about the use of the word elimination, which obviously, against the general background and the conflicts of the past created this atmosphere in respect of the Security Force members, that they could act outside the legal system. That point I’m making in paragraph 86.6. And then 86.7.1 I refer again to the fact that Raven testified that the targets would have been high profile people. And that was really the tenor of the evidence, Mr Chairman. It’s not just anybody who would be eliminated, especially in the way it was done in the First and Schoon incidents, and even the London bomb. It wasn’t just anybody. These were high profile people who were targeted.

And then Mr Chairman, I refer to the meaning of eliminate in paragraph 86.9. I’m not going to belabour that. I’ve already made a submission in that regard. I refer against 86.10 to Trevits. 86.11 Mr Williamson didn’t give specific evidence about that, and Mr Raven doesn’t know about that, but I make the point that reports were sent to the State Security Council about incidents and they had to know about it. Now that was, that evidence was dealt with at the Cronje hearings, and the Cosatu Khotso House hearings, and in my submission, Mr Chairman, that’s general tenor and can be accepted by you or taken notice of by you.

Paragraph 86.12, the applicants believed that their acts were justified as part of war. They believed that they were justified in acting illegally. The way orders were given contributed to the acceptance that orders were illegal but acceptable, and in some cases it was unnecessary to give an order as operatives would have acted in any event because they accepted that it was authorised. This was also put to Gillian Slovo in cross-examination. She accepted that, and Mr Williamson confirmed that evidence as well, and I refer to Raven’s evidence in this regard.

Mr Chairman 86.13, you can ignore. Then 86.14, I just refer to the fact that Mr Williamson testified that the Generals knew about their actions. 86.16 is a repetition again. 86.17, you can ignore. 86.18, 19, and 20, Mr Chairman, you can ignore for practical purposes.

Then 87 Mr Chairman. I refer to the fact that there was a low intensity urban guerilla war between the liberation movements on the one hand and the South African government on the other hand. And I refer to paragraphs in the other hearings. I submit that this is of a general nature and that I can place that before you. I make that point against in paragraph 88.

And then from paragraph 89, Mr Chairman, there is quite a lot of reference to a lot of documents, which I have previously presented you with, when I presented the Heads of Argument in the Cronje matters to you. I refer to them and if you want copies of them Mr Chairman, please, I will make them available. I didn’t copy them. As you know, they’re two files. And that goes until paragraph 91.

And that is really the conclusion of this part of the argument, Mr Chairman:

"It is clear from the evidence in the applications of all applicants, as well as the individual evidence, that they perceived the conflicts in which they were involved in as a war, which necessitated and called for counter-revolutionary strategies outside the normal criminal system and legal system.

The conclusion to the abovementioned must inevitably be that a low intensity guerilla war was fought between the liberations movements and the South African government. The actions of the applicants should therefore be perceived in the light of the fact that abnormal circumstances existed. That the people involved in the struggle on both sides were engaged in a war. And that the actions should be understood and regarded in the light of a war situation.

It is submitted that the actions of the applicants cannot be ex post facto regarded in the same category as normal crimes in a peaceful situation."

And that’s an important point I want to stress Mr Chairman. It is very easy for us today to sit here in our armchairs and to evaluate actions of people, and decisions of people, which they have taken, or which they had taken, in circumstances which differ totally from today’s situation. We have to take into account, Mr Chairman, that these were committed people. Committed to their side of the struggle, and that they took decisions in the light of that. I refer you to the decision of Steyn and you can include the decision of Cronje here as well, in respect of the fact that there was a war situation. That finding was specifically made in the Steyn judgment.

Mr Chairman that deals with the, in the course of the conflicts of the past, then I deal with the definition of what is a political offence for purposes of interpretation of the term "in the Act", and to look at the background of the Norgaardt principles. I’m not going to refer you to this now. That goes from page 93, paragraph 93, I beg your pardon, until paragraph 110.

ADV DE JAGER: Isn’t the present Act wider than the previous Acts in describing it as an act associated with a political objective, and not as a political act?

MR DU PLESSIS: Yes, yes that is my submission, Mr Chairman, and I think I’ve made the submission in broad general terms previously, that the application previously was a wide application, and as you say, that it is now stated not to be a political offence, but it should only be associated with a political objective, does make it wider under the circumstances. But one still have to test, obviously, the Act against section 20 Sub-Section 3 and the principles there.

Paragraph 110, Mr Chairman, I refer to the Norgaardt principles, and if you read the preceding paragraphs about the test for a political offence in extradition law, you will see that the argument about the subjective theory and the objective theory, arises every time. And in certain jurisdictions the legal systems have given preference to the objective theory, and in some systems to the subjective theory. Now the point I am making here, Mr Chairman, is that the Norgaardt principles, and the way they were applied in Namibia, clearly gave preference to the subjective theory above the objective theory. And paragraph 111 in the middle of that paragraph, I say that when applying section 20, 3, the Committee should place more emphasis upon the subjective part of the test than the objective part of the test.

Mr Chairman, then paragraph 112, I submit that the wide application of the principles are clear from the application by Professor Norgaardt in Namibia. And then paragraph 114, I submit that when dealing with amnesty issues the widest possible interpretation of the Norgaardt principles should be applicable. Paragraph 114.

And then what is important, Mr Chairman, in the United States, Quinn, which I’ve quoted extensively, said the following pertaining to the political incidents test in the US:

"There is no justification for distinguishing between attacks on military and civilian targets. The incidental to component, like the incidents test as a whole must be applied in an objective, non-judgemental manner. It is for revolutionaries, not the Courts, to determine what tactics may help further their chances of changing the government."

Mr Chairman then Section 20(2). It is the further requirement that it must be an offence or delict as stated in Section 20(2), which I refer to there. And I want to draw your attention to the last part of paragraph 116:

"It is submitted that the applicants at all relevant times acted bona fide in the furtherance of such of the political struggle. This was clear in respect of each and every application of the applicants. A clear distinction was drawn by the applicants between actions simply and purely as employees of the state, and their actions for and on behalf of the National Party of which they were the military wing. Their actions all fell under the latter."

Then I refer to Raven’s evidence and Williamsons’ evidence on page 104. I have incorporated this point under the definition of offence or delict Mr Chairman, because I didn’t know where to put it otherwise. But the point is a very important point in my submission. If an applicant appears before the Commission, and he simply testifies that I did my job as a policeman, he is not going to be able to persuade you that he acted with a political objective. He had to couple the work that he did as a policeman with the political objective, such as the applicants did in this application, by testifying that they supported the National Party, that they supported apartheid, that they acted against the liberation movements, against communism, and that they were not simply doing their job, but that their actions were politically inspired.

Mr Chairman then paragraphs 117 and 118 deal with fairly obvious issues. Section 20(2) is very wide. It can relate to anybody who was involved in any way whatsoever with any action, and I submit nothing turns around that except to make it as wide as possible. Then within or outside the Republic, I’m not going to comment on that question and the whole extradition problem that exists with the amnesty procedure.

ADV DE JAGER: ...(indistinct) to 116, where you say that we should, amnesty should be granted in a wide manner, referring to the specific act or omission in respect of civil liability. If you would get amnesty for the killing of Mr X on the 17th of November 1981 at Newcastle, should you also then say, in the order being given, and for any delict flowing therefrom. Or once you’ve got amnesty in connection or in relation to or in respect of a specific act, identifiable, wouldn’t that include amnesty for a delict flowing from those specific acts?

MR DU PLESSIS: Mr Chairman, from your decisions, which you have already handed down, it was clear to me that that is how you approached the issue, and how you interpreted it. And in my submission, there shouldn’t be any doubt. However, when I read some of your orders or judgments, lately, and I saw that, and I saw that it specifically says amnesty for, and then it lists certain criminal offences, and it doesn’t go further and say, all dealings arising from the facts, one could perhaps be faced with an argument by somebody, that because it wasn’t specifically stated or referred to as with the criminal offences, that it was excluded. So one, I would submit that to make the order hundred percent clear, it could not prejudice anybody by referring specifically to all dealings arising from the facts. But the way the judgments have been formulated previously, in my submission, it is clear, but it would be, it would obviously be safer to refer specifically to all dealings.

Your judgment accords, as I read it, with (7)(a) of section 20, which says that:

"No person who has been granted amnesty in respect of an act shall be criminally or civilly liable."

That is the way you formulated the order, and that should be a hundred percent, Mr Chairman. You would have noted that in all the applications that I have presented you with, I have, to make it completely clear, included delicts arising from the facts. But, I don’t think, Mr Chairman, that anybody who wants to make an argument of that will get anywhere with that. As it pleases you Mr Chairman. Then I haven’t dealt with that, Mr Chairman, because I didn’t regard that as important for the argument now. Mr Chairman then paragraphs 117 and 118 I’ve dealt with. 119 is fairly clear.

Then 120. Mr Chairman I want to deal with Section 20(2)(a), and that is the point I have already alluded to, I just want to give you that in detail now. And that is the question if the actions of my client, Mr Raven, could fall under that Sub-Section. Now I submit, Mr Chairman, that the evidence was clear. The applicants have all stated that they had been supporters of the National Party, which formed the previous government, until 1994. They testified that they had been involved bona fide in the furtherance of the political struggle waged by the National Party, which was the government against the liberation movements. The actions of the applicants were part of the counter-revolutionary strategy of the previous government against liberation movements. They all acted in support of the previous government. All their actions therefore, if you test that against the wording of section 20(2)(a), Mr Chairman, it falls under that. The liberation movements were all publicly known, and the applicants testified that they strived to uphold the apartheid ideology and to fight communism and marxism.

And then I refer, Mr Chairman, to the fact that actions were always taken against members and supporters of the liberation movements, and all the well known ones, namely ANC, PAC, SACP and the UDF. And on page 108 I refer to Mr Raven’s evidence, in this regard. Mr Williamson has given evidence in this regard. And I think the other references here are of such a general nature and it is not something that will be disputed.

The objective was to fight the liberation - that’s spelled wrongly Mr Chairman, I apologise - liberation movements, and it did not matter who the target was. Gillian Slovo could not dispute Mr Raven’s evidence in this regard. The evidence of Mr Raven was, Mr Chairman, that what he did was directed against the liberation movements. It wasn’t directed against somebody specific. You will recall that Mr Raven testified that he didn’t know where the bombs were going, that he didn’t know where the letters were going, he didn’t know the, who the bombs were meant for, and that he accepted they would have been high profile people, they would have been legitimate targets, and that what he did was part of his role in the fight against the liberation movements. That was put to Gillian Slovo in cross-examination and not disputed.

The applicants were the political police for the National Party, paragraph 120.2. So they weren’t just acting in an official capacity as policemen, they acted as the political police for the National Party.

CHAIRPERSON: I take it that occasionally they did do their job as policemen?

MR DU PLESSIS: Yes, it was all intertwined into it, Mr Chairman, but the overriding principle that they were involved in, one must remember that they weren’t policemen on the beat at Brooklyn police station. They were there to act in a political way. They were, their functions were politically orientated, Mr Chairman.

CHAIRPERSON: But wasn’t Mr Raven a technical, a technician?

MR DU PLESSIS: Yes but he was as, he was a part of the Security Police.

CHAIRPERSON: Yes, but he also carried out other duties, technical duties, for the Security Police.

MR DU PLESSIS: Yes. But the general evidence, the overall evidence, Mr Chairman, of Brigadier Cronje for instance, was that the primary function of the Security Police at that time, was to combat the people’s war of the liberation movements, and the actions taken, that we are dealing with here, and the evidence of Mr Raven, was clear that the actions that he took in this regard, and the actions that we’re dealing with here, were directed towards combatting the liberation movements, and that the whole struggle of the National Party, and the fight which was fought on behalf of the National Party, was done by the Security Police. Not just the Security Police obviously, the Security Forces, Mr Chairman. But if we’re talking of the police itself, it was the Security Police.

Mr Chairman, intimidation was aimed at the members of the liberation movements. In these incidents actions was taken against supporters of the liberation movements who supported the liberation movements actively, by way of certain actions. I’ll come to that evidence, Mr Chairman. The objective was to fight the liberation movements, that’s my secretary’s spelling, Mr Chairman. It did not matter who the target was, and I again say that Gillian Slovo did not contradict the evidence of Mr Raven.

Now 120.4, Mr Chairman. Evidence about trade unions involvements in strikes, unrest, intimidation, sabotage and terror acts, were given by Mr Williamson. The Schoons were deeply involved with the ANC and taught terrorists English. Now I make that point, Mr Chairman. Maybe that goes a bit too far and maybe that was not a hundred percent the evidence. You will recall that there was a newspaper article introduced. It was in cross-examination, but it was denied by the witnesses, so that statement is really not correct, Mr Chairman. They taught people who supported the NPLA, Mr Chairman, and in some circles, one, people would argue that, in the light of that, that statement is correct. But in any event, they had a history of supporting the struggle and were in Lubango, the regional command of the ANC, which supported SWAPO and FAPLA. It was the main air base and the headquarters of the Cubans, in that area, Mr Chairman. The headquarters of the Cubans, it should include there, in that area.

Now, Mr Chairman, other evidence which have appeared and which were elicited from witnesses in the past few days, as well as Mr Schoon, ...(intervention)

ADV DE JAGER: In that same paragraph

"They had a history of supporting the struggle and were in Lubango the regional command of the ANC."

MR DU PLESSIS: Yes, sorry Mr Chairman, that’s not a hundred percent correct.

CHAIRPERSON: It’s totally incorrect, isn’t’ it? There were four members of the ANC there.

MR DU PLESSIS: Yes, that was the evidence, Mr Chairman. It wasn’t a command, so you should take that out. Mr Chairman, part of this was drawn last year, and it seems that I didn’t go through it properly now. Mr Chairman, there was evidence about the Schoons that they supported the liberation struggle and the armed struggle, and I’m adding this to paragraph 120.4, Mr Chairman. You heard evidence that they had created an effective communication system in Botswana. That they were sent to Lubango as an act of solidarity.

And then the one further point that I want to raise here, Mr Chairman, is the fact that they were also teaching in Lubango. They were teaching in Botswana while they were doing undercover work. They were teaching in Lubango while they were doing undercover work. And it is obvious, because Lubango is so far away, that their different role which they testified about, was obviously not known to the Security Forces, and according to the evidence of Mr Williamson, they were still involved with, or they thought they were still involved with the same kind of operations they did in Botswana. And the question here is, Mr Chairman, again one had to deal with, now, with the question, how do you deal with this? Do you deal with this objectively or subjectively? Do you look at the situation and say, we accept the definition of Marius Schoon, they were now innocent teachers in Lubango and suddenly they get, they receive a letter bomb from the bad South African Security Police, and here they are these innocent people in Lubango and they’re just teaching NPLA supporters? Or do you look at it from the viewpoint of the Security Forces, and say that, that is what we should look at? And remember Mr Chairman we’re still busy with section 20(2)(a), where one has to determine if we are dealing with a member or supporter of a publicly known political organisation, bona fide in furtherance of a political struggle waged by such organisation against the state or any former state, or another publicly known political organisation.

Now on that basis, Mr Chairman, if one looks at that test, obviously the test has been complied with and it is clear from the evidence that the actions of the Security Forces were against a publicly known political organisation or liberation movement, and that was the evidence of Mr Raven and Mr Williamson. It wasn’t just that Marius Schoon was targeted, it was the ANC. It was the liberation movement that was targeted. And the same goes with the incident pertaining to Ruth First.

Now Mr Chairman, in respect of this point, I have to refer you to the evidence, paragraph 120.4.1:

"The objective was to fight the liberation movements."

And then 120.5:

"Ruth First was always regarded as a freedom fighter and a supporter of the liberation. She was involved with the ANC in Maputo."

CHAIRPERSON: Finished with the Schoons now?

MR DU PLESSIS: Yes Mr Chairman.

CHAIRPERSON: What about their two children?

MR DU PLESSIS: Mr Chairman, I’m coming back to that.

CHAIRPERSON: Well, you said you’d finished with it. You haven’t, you’re coming back?

MR DU PLESSIS: Yes, later, Mr Chairman. I’m dealing now with section 20(2)(a). Now in my submission, Mr Chairman, their children becomes applicable when you deal with the question if the act was associated with political objective, and you test Section 20(3). That is when it becomes applicable, Mr Chairman. In respect of 20(2)(a), the only question is if the action was against a publicly known political organisation. And that was so. The letter bomb sent to the Schoons was directed against such an organisation. And perhaps, Mr Chairman, it is good that you raised this point here, because if I succeed in persuading you, Mr Chairman, that this application falls under section 20(2)(a), the question about the children does not arise. Because if you read 20(2)(a) you have to show that you’re a member or supporter of a publicly known political organisation or liberation movement. In this case it would be Mr Raven on behalf of the National Party.

CHAIRPERSON: What about 20(3)(f)?

MR DU PLESSIS: Yes, yes that is the only ...

GAP BETWEEN TAPES

MR DU PLESSIS: Then find that the Act, when you decide if the act was associated with a political objective, and you test section 20(3) together with 20.2(a). that is the only place where that becomes applicable. However, Mr Chairman, if you apply 20.2(b) it can also become applicable where it is stated that the action need not just have taken place against a liberation movement, but also against a member or supporter of a liberation movement. Now my case is that the action was against members or supporters of the liberation movements. The question is how can a child ever be such a supporter of a liberation movement. However, in Section 20.2(b) I must draw your attention to the use of the word ‘or’ in the third line of that section, Mr Chairman, that Sub-Section.

ADV DE JAGER: Section 20(2) of, 20, yes (2)(a), directed against the movement, wouldn’t that be for instance, the London bomb? If it was directed at any individual. Suppose we find that there was no individual targeted. Then it was directed against the organisation. But at the moment it’s targeted against a person, being a supporter of a party. Can you still say that’s irrelevant, you should deal with it in a category that relates to the organisation?

MR DU PLESSIS: Mr Chairman, it, obviously the London bomb incident is very clear in this regard. In respect of the letter bombs, Mr Chairman, the intention was clearly to hurt the organisation. It was directed to a specific person, that is so. And in Section 20.2(b) it can then fall under either the one or the other, the fact that it was directed against a member, or that it was directed against an organisation, but it can be both, Mr Chairman.

ADV DE JAGER: Would it have been necessary to insert 20.2(b) "the supporter or the person", if everything was considered to be directed against an organisation?

MR DU PLESSIS: Not necessarily, Mr Chairman, but in respect of a letter bomb - May I take an example which makes a difference? Here you have a situation where a letter bomb is sent to a specific person, but it is foreseen, obviously, and one cannot get away from that, that that letter is going to a specific place and that other people who may also be involved with the liberation movements may also be injured in that operation. On the other hand, if you have a situation where a person goes to assassinate a specific person, a specific person, without an intention to, or without the possibility of anybody else to be affected thereby, Mr Chairman, that would be the normal situation where you would say that was directed against a member or a supporter of the liberation movement. But where, here, a letter bomb is sent to a target, which may end up in a different scenario than is foreseen by the person who sends the bomb, Mr Chairman, but it hits a specific place where operations are conducted from, from that liberation movement, it can be, can fall under both.

CHAIRPERSON: Can’t you seek to distinguish yourself through your colleagues here? Can’t Mr Raven be heard to argue, I was acting within what I understood to be the rules, and that these people would not use a letter bomb obtained from me recklessly, or against somebody who was not a proper target.

MR DU PLESSIS: Yes Mr Chairman. You’re formulating the point actually clearer than I could. The point is, from Raven’s objective, he testified that he didn’t know where it was going. It could have gone to anybody inside the country. It could have gone to anybody outside the country. So his action, pertaining to the bomb, was not directed towards a specific person, it was directed against the liberation movements, against the ANC. And he accepted that it was going to a high profile person in these movements.

CHAIRPERSON: And he did not know that there were children involved.

MR DU PLESSIS: Correct. He had no knowledge of that. He didn’t know who was going to be targeted. He did this, and he accepted that that would be the outcome. And he accepted under those circumstances, Mr Chairman, obviously he must have accepted, that it was possible, and he testified that, that somebody may get hurt in the process, which could be a casualty which wasn’t meant to be, but he had no control over that. He was simply in that position. Now that is specifically an example where you can distinguish an action directed against the movement on the one hand, and where you have an action, perhaps in Mr Williamson’s, with Mr Williamson’s case, it is different. Because there it could be argued that his action was not just directed towards the movement but towards a specific person. Now Mr Chairman, in, there are lots of different examples in this regard. One can think of perhaps the Zero hand grenade incident. The people who did those hand grenades, and made those hand grenades, didn’t know who specifically was going to be targeted but it was done for purposes of actions against the ANC and terrorists. So there is a distinction to be made between different actions, and I thank you for the point that you’ve made there, Mr Chairman.

ADV DE JAGER: It is known it’s not directed, if they make a post bomb, it’s not directed against the ANC offices, it’s addressed to somebody and it’s directed towards a person.

MR DU PLESSIS: Well that is another way of looking at it Mr Chairman, to say it would have been directed against a member or supporter. But one can argue it both ways, Mr Chairman, that is so. The important point I want to make, Mr Chairman, is that from Mr Raven’s point of view, what he did was in furtherance of the struggle against the liberation movements. That is what he did. He knew this bomb was going somewhere, somebody was going to be hit by it. Somebody was going to be affected by it, or maybe it was going to blow up somewhere, or something could happen to it where it blew up in some office where it had some intimidatory thing. The point is, if you look at it from his point of view, he didn’t make the bomb to kill somebody. He made the bomb to be used in an operation which would have affected the liberation movements.

Now Mr Chairman, I deal with the evidence about what the Schoons were involved in, and what Ruth First was involved in, and I dealt with that in cross-examination as well, because I submit that it is important that one has regard to this, not simply just for the questions was it directed against a member or supporter of the liberation movements, but also for purposes of applying Section 20(3). And that is why I’m dealing with that, Mr Chairman. Ruth First was always regarded as a freedom fighter. Then I list the evidence very shortly, Mr Chairman. Page 113:

"she would not ..."

That should be:

"she would have been a target"

Mr Chairman.

"She was a potential activist. Her involvement appears from statements in cross-examination. She was a well known speaker. She was a member of the SACP."

Then I make the point on the top paragraph of page 114, Mr Raven did not know who the bomb went to. He did not know it was meant for her. She was a communist. She was a brilliant revolutionary activist. People carried out attacks from Maputo. She supported the armed struggle. She was a devastatingly effective critic of apartheid, argued against apartheid. This struggle was poorer for her death. This is an important point, Mr Chairman, because this evidence clearly indicates that the liberation movements suffered a loss. The ANC suffered a loss because of her death. So the action directed against the ANC was effective eventually. She was well know throughout the world. She mobilised people in the anti-apartheid struggle. The work she was doing was dangerous to the Security Forces. She was therefore a target. She was doing research on Mozambique’s - that’s again my secretary’s spelling Mr Chairman - dependence on South Africa. And at the fiftieth national conference of the ANC she was mentioned ...(indistinct) one of the ANC leaders over a period of fifteen years.

And then last Mr Chairman, I have really already dealt with Jeanette and Marius Schoon. I just gave, give further references there to their involvement. And I make the point against that Raven did not know what they were doing in Angola and he did not know who the bombs were sent to.

That deals with section 20(2)(a), Mr Chairman. And in my submission a proper case has been made out for amnesty on that basis. That would mean that I would not have to persuade you about the whole question of authority, real or implied authority, and everything around that. But obviously I’ll have to deal with Section 20(2)(b), as well.

ADV DE JAGER: Section 20(2), trying to indicate who could be candidates applying for amnesty.

MR DU PLESSIS: Yes.

ADV DE JAGER: Isn’t that the only purpose of 20(2) ....(indistinct)

MR DU PLESSIS: Yes.

NO SOUND

ADV DE JAGER: ... describing categories of people who could be applicants in an application.

MR DU PLESSIS: Yes, Mr Chairman, and as I understand the Act, the Act was written in such a way that the liberation movement members would fall under (a), and the Security Forces would fall under (b). And that was one of the main criticisms of this Act, that (b) made it much for difficult for the Security Force members to get amnesty because there were additional points that they had to prove, such as the question if they acted within the scope of their express or implied authority.

ADV DE JAGER: Whether that may be so or not, there’s the Act, it’s written now. That should be interpreted.

MR DU PLESSIS: Yes.

NO SOUND

ADV DE JAGER: ...(indistinct) of the Security Forces. Can’t anything be done about this thing? I can’t keep on pressing it every minute, please. ...(indistinct) The category of persons who could apply for amnesty. Either people falling within A or B, or being a servant, or being an employee, of the state, and that’s as far as (2) goes.

NO SOUND

ADV DE JAGER: ...(indistinct) dealing with the motive at all.

MR DU PLESSIS: Mr Chairman, the point, some of the points that I’ve made now, I will come back to again when I deal with the motive. I’ve made these points because it is important for purposes of deciding if the applicant falls under A or B. If the applicant falls under A, then the whole question of his authority becomes only applicable for purposes of section 20.3.E and that is a much wider test, because 20.3.E refers not to the course and scope of his duties, but to the approval of his organisation. If he falls under A, Mr Chairman, the whole dispute about where the order came from, who gave the order, how legitimate was the order, did he have reasonable grounds to believe that he could act in that way, falls away. So it makes the test much easier for the applicant if he can prove that the falls under 20.2.A instead of 20.2.B. And that’s the purpose of my trying to persuade you that Mr Raven’s application does fall under 20(2)(a). Because then there is no necessity to go into any detail about his express or implied authority, or did he act within the scope of his duties, or anything in that regard. That’s the reason for that, Mr Chairman.

Now in respect of Section 20(2)(b), Mr Chairman, I make the point that the applicant complies with all the requirements in that section, and I think I have addressed you about that in my submission, properly. The only question remains, as I say in paragraph 123:

"If the applicants acted in the course and scope of their duties, and within the scope of their express or implied orders."

And that is what I’m going to deal with now, Mr Chairman. I must point out, this is now before I deal with 20(3), I will get to 20(3) just now. I make the point in paragraph 124, that in respect of the London bomb, or, sorry, I make the point that Mr Raven’s direct commander was Craig Williamson, and that was the case in respect of all three incidents, Mr Chairman. And in respect of the London bomb the line of the order is clear, and I’m not going to dwell too long on that.

Paragraph 124.1:

"Raven thought that the order in respect of the London bomb would have come from higher up, but obviously he didn’t know. Raven was congratulated afterwards for the First incident, the Schoon incident, and the London bomb incident. He received congratulations for the London bomb by his superiors. Gillian Slovo accepts that Raven acted on orders. Raven testified that he would have acted on orders from another section in the South African police."

This all, these points I make, Mr Chairman, to justify the fact that Mr Raven had reasonable grounds to believe that he was acting within the course and scope of his duties.

CHAIRPERSON: But doesn’t the whole, if one looks at the picture as a whole, eight policemen being transported by air to London, being provided with clothing allowance to wear winter clothes. Being provided with money for accommodation. It’s very difficult to think that anyone could have imagined that was anything other than official.

MR DU PLESSIS: It goes without saying Mr Chairman, really, it - that’s why I don’t want to belabour it too much, and that is why I included the London bomb arguments in these Heads, because I felt it was, it was not nearly as problematic as the others. It is, however, important for the First and Schoon incidents, Mr Chairman, that Mr Raven was congratulated afterwards. And then on page 123

"The evidence that Mr Williamson did not expect Mr Raven to ask questions. He did not expect Mr Raven to look at the envelopes to see who it was intended for. He did nothing about the operations discussed with Mr Raven. He didn’t act, he didn’t do anything apart from giving him the order."

And then, Mr Chairman, if I can turn to page 124. I make the point against that congratulations after certain operations could have led to the belief that they were authorised operations. Mr Chairman, and then I refer in 125 and 126, and I know this is after this incident, but it is important to refer to this to try and persuade you about the probability of the orders in the Schoon and First incidents, page 124, paragraphs 125 and 126, is that when Mr Vlok testified that it was not strange that Mr P W Botha spoke alone to him as it was his style, I make the submission that the deduction can therefore be made that he used informal orders to achieve actions outside the normal legal system. This is also probable with reference to actions of Minister le Grange.

And then I draw a distinction between Cosatu and Khotso House. In Cosatu House Mr Botha didn’t know, not know anything about it, and Mr Vlok gave the order. May I just stop here, Mr Chairman, and just deal shortly with this point? And that is why I belaboured this point a little bit in the cross-examination. Not a little bit, Mr Chairman, but a lot.

The point here is, Mr Chairman, there was a lot made about the formal channels of command, the formal way things were done, the State Security Council, and how decisions were taken there. But isn’t these incidents indicating to us that there was an informal channel of command? Only certain people were chosen to get orders in this command. These commands came down from the top, outside the system, Mr Chairman, outside the system. Minister le Grange gave an order directly to General van der Merwe, and then the order came down, in the Zero hand grenade incident. In the Cosatu/Khotso House incident the same kind of thing happened.

Now, and I’m raising this as an argument, Mr Chairman, on the probabilities. I’m submitting to you that the probabilities are that orders pertaining to illegal actions were dealt with in this way. Either from Minister Botha, President Botha, or from the various Ministers. We have two Ministers who did it. Minister le Grange and Minister Vlok. These orders came down in that way. We do not know how many orders in other incidents came down that way, but isn’t it possible, Mr Chairman, that Brigadier Goosen received an order in respect of the First and Schoon incidents, in such a way?

Isn’t it probable that that was the case? If one looks at how these incidents happened, and how these orders were dealt with, isn’t that probable? And my submission to you is, that on the probabilities with reference to all these other incidents where it happened in such a way, my submission to you is that it is probable, that one cannot exclude the possibility that this is what happened.

Brigadier Goosen is not with us today, and here is Mr Williamson and Mr Raven, and they must try to explain, why didn’t, why did they act in this way, why did they execute this operation, why did they deal with this operation in the way they did? And they do not know. They do not know where the order to Brigadier Goosen came from. So on the basis of that, Mr Chairman, I submit to you that if you have to make a decision here between, on the one hand, was this a frolic of their own, or on the other hand, is there a probability that the order came from above, my submission is that your decision should be that the order came from high up, on the probabilities, Mr Chairman.

Mr Chairman, paragraphs 127, 128 and 129 I’ve really dealt with already.

ADV DE JAGER: So, suppose that order didn’t come from higher up? They’ve made a decision, we’re fighting against the liberation movement, and we think that we should do this? ...(indistinct)

MR DU PLESSIS: Yes but. Mr Chairman perhaps I should have dealt with this. I thought I made it clear, but I didn’t. Obviously, the argument is that if that happened, in the light of the general background, the whole aura that was created, and the whole situation that was created, as I’ve dealt with in extensive detail in respect of the background situation, obviously that would have been an action which would have been justified under the circumstance.

ADV DE JAGER: See the trouble I’ve got with this command, it’s coming from somewhere up top. Now you say, I’ve received a command, so I should get amnesty. The next one would say, oh I received a command, I should get amnesty. Somewhere there wouldn’t be a commander. Would that top person be able to get amnesty, if - suppose for instance everything could be traced back to say, Mr P W Botha. He couldn’t have received a command from somebody above him. Would he not be entitled to amnesty at all?

MR DU PLESSIS: No, Mr Chairman, that is not what I’m submitting. The ...(intervention)

ADV DE JAGER: No, I know you’re not submitting, but I’m putting to you the idea that’s being created that you could only get amnesty if you had received a command from somewhere.

MR DU PLESSIS: Mr Chairman, if I can just bring it back to the Act. In respect - and we’re busy with section 20(2)(b) or (f), (b) you have to prove that you did act within the scope of your express or implied authority. Now if you find on the probabilities, that there was an order from higher up, to Brigadier Goosen, to Major Williamson, and to Mr Raven, then I have proven the point in paragraph B.

However, if you find that there was no probability of such an order, if you look at the facts before you, there was an order from Brigadier Goosen, down to Mr Williamson, down to Mr Raven. The question arises, or let’s say Brigadier Goosen didn’t even give the order. Let’s say it was Mr Williamson that decided to do this, on his own, the question arises then does he fall under 20.2.F? Which says any person referred to in paragraph B, who on reasonable grounds believed that he or she was acting in the course or scope of his or her duties, and within the scope of his or her express or implied authority, and he would have believed that. Mr Raven would have believed that. Mr Williams would have believed that he was authorised to do that because of the whole situation that was created with these unlawful activities, these unlawful actions, cross-border raids, and everything that went with it. Judge Wilson, I don’t know -

CHAIRPERSON: Well the example my colleague gave you, the State President would have believed he had the authority.

MR DU PLESSIS: Yes sir.

CHAIRPERSON: It wasn’t an order. It was within his authority.

MR DU PLESSIS: Yes. Yes. So the point is simply does it fall under B, that it is specifically within his duties because he received an order? Or his express or implied authority because he received an order? Or did he reasonably believe that he could do this? If he acted on his own, and he didn’t receive an order, then he must fall under F, and then the argument is, could he have reasonably believed? Did he have reasonable grounds to believe that he was acting with express or implied authority? And even if only Mr Raven and Mr Williamson acted in this matter, with no order from anywhere, they would still fall under F, Mr Chairman. That is my submission. If one takes into account the general background, the evidence about the whole situation that was created, what was accepted, congratulations about illegal orders, no questions asked. ...(intervention)

ADV DE JAGER: It’s no so relevant in this.

MR DU PLESSIS: As it pleases you. It will become relevant in other matters again, Mr Chairman. So, the point in any event, Mr Chairman, in this matter, from the point of Mr Raven, he succeeds in proving that he falls under both. He did receive and order, and in any case he had reasonable grounds to believe that what he did was authorised.

Mr Chairman then paragraph 130. I deal with the applicability of the Geneva Conventions. I’m not going to deal with that in detail. The important point of this is, Mr Chairman, that if the policemen had thought that this is a war situation, then they would have also accepted that orders given in a war, similar to a war situation, would have been legal orders. And there is nothing in international law that makes an order to kill the enemy illegal. That’s the gist of the point that I make there, Mr Chairman. You will, even paragraph 142, crimes against humanity, for instance, defines an act which is an act committed against the civilian population. And if it isn’t committed against a civilian population but people who were involved in an armed struggle, it’s not a crime against humanity.

Paragraph 144, it’s clear from the evidence of the applicants that they did not direct any actions against any civilians. Their actions were directed totally and solely against activists involved in the, internal is not correct, the war really. Trained terrorists and person who acted in the course of the people’s war of the liberation movements.

Mr Chairman and then paragraph 146, I just make the point, the applicants could therefore never have thought that they were committing any crimes, as they were acting in respect of orders given to them in a war situation, similar to orders which could have been given in a conventional war in a battle situation. Their actions can therefore not be regarded as falling under the applicability of the Geneva Conventions.

MR VISSER: I’m sorry, Mr Chairman, I’m trying to follow. Is my learned friend abandoning paragraphs 130 up to 142 where he is now? I’m not sure.

MR DU PLESSIS: I’m just not referring to them specifically. Unless you want me to take you through all the ...(intervention)

CHAIRPERSON: Mr Visser we’re going on nicely and quickly. I would suggest that you just keep quiet. Carry on Mr du Plessis.

MR DU PLESSIS: I can take you through it Mr Chairman.

MR VISSER: Where are we now?

MR DU PLESSIS: Paragraph 146. Mr Chairman I must just remind you that I’m dealing here with the question that the applicants have reasonable grounds to believe that they acted under authority. That they had legitimate orders. That is what I’m dealing with here, and the reference to the Geneva Conventions, Mr Chairman, is important because it refers back to the question, did, what kind of belief was reasonable under the circumstances applicable to the applicants. And if they thought they were acting in a war situation, Mr Chairman, an ordered to kill somebody, was not strange. It wasn’t strange. That makes it clear that from the point of view of section 20.2.F, they would have had reasonable grounds to have believed that an order to kill somebody who was an opponent in this war situation, was authorised.

CHAIRPERSON: But they would never have applied their minds to the Geneva Convention or anything under it, would they?

MR DU PLESSIS: No.

CHAIRPERSON: They were just ordinary policemen who believed that they were carrying on a war here.

MR DU PLESSIS: No they wouldn’t have, Mr Chairman, in all probability. But the point I’m trying to make here, Mr Chairman, is, one doesn’t know if they had any education pertaining to the situation in a war, Mr Chairman, and what is legal in a war and what is not. And that is where the Geneva Conventions come in. And the simple point I’m trying to make out of all of this, and this is why I’m not referring you to the detailed argument here, is that if they thought they were acting in a war situation, an order to kill is not out of the ordinary. And it makes their belief that they had authority to act in such a way, more reasonable. That is the point I’m trying to make here, Mr Chairman.

Mr Chairman, I go further. Paragraph 156. I jump now a few paragraphs because in those paragraphs I deal with the international law pertaining to anticipatory self-defence. When can a state act in self-defence or not. Now, Mr Chairman, it was well known fact at that stage, that the South African government defended themselves, in respect of their cross-border operations, they defended themselves as having been authorised by section 51, or article 51, of the United Nations Charter, that they had a right, Mr Chairman, to act in self-defence and then to act across the border against opponents who were waging this low intensity war against South Africa. That was the, that’s the argument that Israel has, during the years, ...(intervention)

ADV DE JAGER: Your argument as far as this goes, is only relating Mr, your client Raven, what he believed. You’re not busy now to argue the case of whether the government had a case in self-defence or no self-defence or the international law.

MR DU PLESSIS: No.

NO SOUND

ADV DE JAGER: ...(indistinct) relates to Mr Raven’s mental attitude at that stage.

MR DU PLESSIS: And, Mr Chairman, I’m still busy with 20.2.F. Did they have reasonable grounds to believe that an order to act, and Mr Raven testified that he accepted that this bomb could go overseas, over the borders of the country, that to act in such a way was reasonable at that time, under the circumstances. And to get an order such as that under the circumstances. Everybody knew at that time, Mr Chairman, that the South African government defended themselves and their right to act across the border, and Mr Raven would have known about this. He would have known about the right that the South African government said they had to act across the border. I’m not trying to make the case if the South African government was right or wrong. I’m not making that case. The reference to section 51 is a reference to give you a background to ...(intervention)

ADV DE JAGER: The only reason why I say, I’m actually trying to link onto what the Chairman said. He didn’t think about all those things. We’ve got nothing saying that he thought about the Geneva Conference, and the United Nations Charter. He was an ordinary citizen, hearing we’re involved in a war and the government say we’re entitled to fight across the borders. And that’s, whether the government was entitled to do so or not, is irrelevant.

MR DU PLESSIS: Yes.

ADV DE JAGER: ...(indistinct)

MR DU PLESSIS: Mr Chairman maybe I must read to you the conclusion of all this.

CHAIRPERSON: But isn’t it, before we go on, isn’t it even simpler? He knew that a great many of the people who were attacking us, arranging the attacks, were sitting outside the country. And if you wanted to attack them you had to attack them outside the country.

MR DU PLESSIS: Yes, but Mr Chairman, the point, the only reason why I’m raising this, is to deal with the question of the reasonability of what he thought about his order.

CHAIRPERSON: Well that’s what I’m suggesting to you. That the Geneva Convention, which he probably never heard of, would not have made this thoughts any more reasonable, or the section 51 of the United Nations whatever it was. He has not said he applied his mind to these. He has not said they influenced him in any way whatsoever. So what is the relevance?

MR DU PLESSIS: No, Mr Chairman, let me read to you paragraph 163 and then I will address you to that, because it makes the point relevant. I say there

"In the light of the abovementioned, it is therefore submitted that the applicants could not have questioned the orders given to them, together with the tacit ratification of their actions as having been lawful in an international context.

The evidence was that they regarded their actions as part of war, and as part of the armed conflict in South Africa, which was nothing else than an internal war. Orders therefore to act as they did and to eliminate and kill opponents, could therefore not have been regarded by them as anything else than a legal order in a war situation. It was justified by the South African government’s reliance on article 51 of the United Nations Charter. And the right of the South African government to self defence. And the inclusion of the right of anticipatory self defence which was relied upon by the South African government. This instilled in the applicants a belief that pre-emptive counter-revolutionary acts which were part of the self defence strategy of the South African government. In this regard the applicants could never have thought that any orders to act accordingly could have been unlawful."

CHAIRPERSON: You see what I dispute, Mr du Plessis, is that it instils in the applicants a belief. They have never told us that they heard of article 51. They haven’t said it instilled any belief in them.

MR DU PLESSIS: Mr Chairman, at, I know, as far as I can recall there was no evidence in that regard, but at that time, Mr Chairman, and I think Mr Pik Botha in his cross-examination made it clear, at that time, there was a lot of talk about the South African government acting across the border. There were speeches made by politicians saying, we have the right to do so, and that right we derived from article 51. Now I’m not saying Mr Raven knew article 51, but what I’m saying, Mr Chairman, is that Mr Raven heard what the politicians said. He knew that the South African government was saying, we have the legal right to operate across the border, and ...(intervention)

CHAIRPERSON: ...(indistinct) more, he knew the South African government was operating across the border. Finished. And then when they told him to do it he believed it was part of the same policy.

MR DU PLESSIS: Correct. As it pleases you, Mr Chairman. Mr Chairman if I can then refer you to the evidence about the fact that Mr Raven testified that elimination was necessary as there was no other way to act against activists and terrorists, 163.2. Paragraph 163.3 that cross-border raids and attacks were authorised. And the rest of 163 I’m going to leave.

Then paragraph 165, Mr Chairman. I make the point

"The question to be asked is if any reasonable Security

Policeman in the position of the applicants would have

accepted that the orders referred to in the evidence were

legal and legitimate orders. From the evidence it is clear

that the authorities allowed the Security Police to act in the

way they did, and the existence of a hit list was even

authorised by Trevits, and the preceding organisation,

which was part of the national security system. It can

therefore be accepted that the applicants were always

brought under the impression that any orders given to them

by their superiors formed part of the government’s counter-

revolutionary strategies. The evidence also indicates that

they believed that this was so. This belief was fortified by

similar previous actions."

And then I refer, inter alia to General van der Merwe’s evidence. And then, this is the evidence of a general nature, Mr Chairman, and therefore I rely thereon. And Mr Raven testified that there could have been confusion about the guidelines and circumstances ...(intervention)

CHAIRPERSON: Before we go on. Have any of you got a copy of these submissions of General van der Merwe’s. The submissions.

MR BIZOS: ...(indistinct) bundle four.

CHAIRPERSON: So you have a copy of it Mr Bizos.

MR BIZOS: The reference is to the evidence.

MR DU PLESSIS: The evidence was a repetition of the submissions.

NO SOUND

MR BIZOS: ... I’m sorry that any conversation with my attorney or any gesture that I may have made may have put my learned friend off his stride. We will deal with these matters, Mr Chairman, in due course. I don’t want to interrupt the proceedings.

MR DU PLESSIS: Mr Chairman I was waiting for you to give me an indication.

CHAIRPERSON: Right, carry on.

MR DU PLESSIS: May I carry on Mr Chairman? Thank you. Mr Chairman then, from page 154, I refer to certain evidence, and I’m not going to through that again. It is evidence again confirming all the questions pertaining to congratulations, no questions were asked, reports were sent to superiors, no questions were asked about that. All the facts which could have contributed to Mr Raven having reasonable grounds to believe that what he did was authorised under the circumstances, and I’m not going to refer you to each and every paragraph thereof. I have dealt with that in quite a lot of detail already. The simple fact is they were never rebuked, there were never any questions asked, they were never asked to explain, they were never asked to come back, there were never questions asked to give reports about that, there were never come backs, the Security Police were utilised in a military way. They accepted that they had orders from above. And that was all part of the counter-revolutionary strategy.

Now Mr Chairman, if I can then turn to page, paragraph 168, page 170, I submit it is in any event clear in terms of section 20.2.F, that all the applicants believed on reasonable grounds that they were acting in the course and scope of their duties. This is confirmed by the evidence, the fact that they believed this is on reasonable grounds have been indicated above, with reference to, I will leave that out Mr Chairman because you have pointed out that Mr Raven didn’t know about that. Further grounds are the actions sanctioned by government itself, which went outside the scope of the legal process, the cover up of incidents, tacit or express ratification of the actions of the applicants, and the statements of their superiors, leaders, and politicians. They had reasonable grounds to believe that the order came from government, and that’s supported in general by the evidence of General van der Merwe, Coetzee, Vlok, Leon Wessels and Craig Williamson.

Mr Chairman, then I would like to turn to paragraph 174. It is submitted that the previous government simply never asked questions about the way the Security Police acted, and turned a blind eye

...

GAP BETWEEN TAPES

... as if not having authorised the specific actions. It is submitted that the actions of units of Vlakplaas, Koevoet and other counter-insurgency units were silently if not directly authorised by the government, and were used outside the normal system to form part of the government’s counter-revolutionary action and strategy.

Mr Chairman I am still busy with the section 20.2.F, the question if somebody in the position of Mr Raven would have thought that he had reasonable grounds to act in the way he did. I’m still busy with that. And I’m indicating to you all the factors that contributed to the situation that he found himself in, which he, in which, which indicate that he had reasonable grounds to believe that he was authorised to act as he did.

Paragraph 180, Mr Chairman, 179 actually. I refer to the fact that General van der Merwe and other previous Commissioners of Police accepted moral responsibility for the actions of their men. Paragraph 180. It’s submitted that it should therefore be accepted that the applicants in each instance acted on superior orders, and that the persons in charge of the security system and the politicians in charge of the government of the day should be responsible for the actions of the applicants.

Mr Chairman then I refer to the attitude in international law pertaining to superior orders, and what is the position pertaining to a person in a war situation when he receives an order to act in a war situation in a specific way. I’m not going to into that detail. It is stated there and I refer to inter alia the British Manual of Military Law, the Laws of Land Warfare of the United States, that’s paragraphs 182 and 183.

ADV DE JAGER: That’s in order to see whether he acted legally or not. Here we all accept it’s illegal, he’s applying for an offence he’s committed, he’s accepting it’s wrong, it’s an offence, so whether it was, should be regarded by international law as a lawful order or an unlawful order really doesn’t matter.

MR DU PLESSIS: No Mr Chairman, these incidents all dealt with the question if the order was unlawful and what was the position pertaining to the person who is acting under superior orders, when he is ordered to act unlawfully. But I’m not going to go into that detail. It was dealt with in various tribunals worldwide previously. And I thought it may be relevant at these hearings. It doesn’t seem to be the case and that is why I’m not going to deal with it any further. I submit, however, Mr Chairman, that this is indicative of the situation the applicant found himself in, Mr Raven found himself in, and I thought it necessary to refer to this to give the Committee a little bit of background of how some of these problems were dealt with, pertaining to superior orders, in other jurisdictions. If it is found not to be relevant, Mr Chairman, then you can ignore it. I will then turn to ...(intervention)

ADV DE JAGER: No, the only thing is I think it was irrelevant in the sense whether you are guilty or not guilty, whether you should be punished or not.

MR DU PLESSIS: But Mr ...(intervention)

ADV DE JAGER: ...(indistinct) connection with any amnesty applications.

MR DU PLESSIS: But Mr Chairman then it becomes relevant in terms of Section 20(3)(c), where you have to have regard to the legal and factual nature of the act, ommission or offence. And the fact that such evidence would be regarded in any event as part of the offence in mitigation. Because that would have been an important point in mitigation in the criminal trial, and you have to have regard to the legal and factual nature of the act. But I won’t take the matter any further Mr Chairman.

CHAIRPERSON: ...(indistinct)

MR DU PLESSIS: Pardon Mr Chairman? Can I proceed?

Paragraph 196, Mr Chairman, is just the conclusion to this point about the question that the applicant had reasonable grounds to believe that he was acting in the course and scope of his duties. I may say, Mr Chairman, when I deal with section 20(3)(c), I refer back to all the arguments pertaining to the international question as part of that specific Sub-Section. I will not deal with it again in there.

Then I go over Mr Chairman to deal with section 20(3). The question if an act is associated or was associated with a political objective. Section 20(3)(a), is the first aspect that you have to take into account. The motive of the person who committed the act, ommission or offence. And my submission would be, Mr Chairman, and I set that out later in the Heads of Argument, is that - paragraph 197, page 197.

Mr Chairman my submission would be, that the most important factor in Section 20(3), is 20(3)(a). The motive of the person who committed the act. That was the most important principle as applied by Professor Norgaardt, and in my submission that is the most important principle to apply. Section 20(3)(a), paragraph 197, I submit that the motive is a subjective test, and it means simply that the motive must have been motivated politically.

The evidence of all the applicants was that they supported the National Party, wanted to keep the National Party in power, wanted to uphold apartheid, and wanted to fight communism. That should be taken into account, Mr Chairman, that was their motive. They acted against the liberation movements. They were politically motivated in each and every instance. This is a subjective test, and has to be applied on a subjective basis. And then I refer to the Steyn amnesty application where this principle was the overriding principle when the decision was made. The same goes for the Cronje judgment, Mr Chairman.

What also has to be taken into account under this heading is the fact that the applicants were subjected to severe propaganda in terms of which they believed that they acted to uphold apartheid, acted for the National Party, acted against communism, and had to act against the liberation movements at all costs.

Then 20.3.B is the context against which the acts took place. I’ve already dealt in detail with the evidence in that regard, Mr Chairman. It is just important to refer you again to the interpretation of Mr Justice van Dykhorst in the Rafolo decision, and the wide interpretation he placed upon the context, and especially the reference in 20.3.B that the act was committed in the course of or as part of a political uprising, disturbance or event. His lordship Mr Justice van Dykhorst found that that also included a war situation, or a low intensity war situation as was prevalent in South Africa at the time.

I make the submission right at the bottom of page 200 that the context was therefore clearly political, and then I refer in paragraph 197.2.2 back to the specific paragraphs dealing with the evidence pertaining to conflicts of the past. Then Section 20 ...(intervention)

ADV DE JAGER: ...(indistinct) that it’s not only applicable to an event or uprising at a particular moment, it’s an ongoing event. Ongoing struggle. Not, it wouldn’t only relate to what’s happened this morning at Church Square, or whatever it may be.

MR DU PLESSIS: Yes, Mr Chairman, that was the point, the dispute, the point of dispute in the Rafolo decision, or one of the points, which was dealt with by his lordship Mr Justice van Dykhorst. So you cannot just say you have to relate the act to a political uprising as is stated here, a disturbance or a specific event or, it says, or in reaction thereto. This must be interpreted very widely to also apply to the, as you have correctly stated, the ongoing war situation which was prevalent throughout the mid-1980's, at least in 1982 and 1984, the dates we are talking of in respect of these incidents.

Then section 20.3.C Mr Chairman. It refers to the legal and factual nature of the act, and the gravity thereof. And in that regard, Mr Chairman, I submit that you have to have regard, and I don’t want to belabour this Mr Chairman, it doesn’t seem to be a point that you regard in high esteem, but the international situation pertaining to these actions. It wasn’t an action of murdering somebody in a normal criminal situation. It was an action as part of the South African governments self defence strategy, justified in terms of international law, which was carried out, Mr Chairman. And that is important for purposes of Section 20.3.C. To take that into account.

Mr Chairman Mr Wagner indicates to me that the heading should be section 20(3)(c). I see it’s wrong. I thought it was clear. I don’t know if that’s what Mr de Jager is looking at.

Mr Chairman, then page 203, I just deal with the fact that amnesty is sought for all competent verdicts, all delicts appearing from the facts, I’ve already dealt with that. Then Section 20(3), is again wrong there.

20(3)(d). That is the next point that has to be considered when dealing with if an act was associated with a political objective, and that is the object or objective of the act. And in particular if the act was directed at a political opponent, or state property or personnel, or against private property or individuals. Now Mr Chairman, it is this particular paragraph which caused Professor Norgaardt in South West Africa to come to the conclusion that acts, indiscriminate actions against civilians, should exclude amnesty, and that would be an argument for instance, in respect of the Church Street bomb. That an indiscriminate such act directed against individuals and not necessarily political opponents, would fall under this, or not fall, sorry, not fall under this. The object or objective of the act, Mr Chairman, must be directed at a political opponent.

And here again I want to refer to the Rufolo decision, where his lordship Mr Justice van Dykhorst found that the test, that is in the middle of paragraph 197.4.1, 197.4.1. His Lordship Mr Justice van Dykhorst found that the test in terms of the guideline is not whether the act is lawful, but whether a cause is served, for example the political opponent or his property was targeted, as opposed to private individuals and their property. This was also the way Professor Norgaardt applied the principles in Namibia. Actions against civilians did not fall under this application. The Committee adopted the same approach in the Steyn amnesty application.

And then I submit that the applicants will argue that none of their actions were directed against civilians, and that the objective of their acts was always directed at a political opponent, which included supporters, members, activists, or terrorists, of the liberation movements. This was the evidence of the applicants, it refers there to the five applicants, that was still in the Head of Cronje and I didn’t take that out. The evidence is clear that both orders were given on the basis that civilians should not be injured or killed. Well, I should say all three incidents, Mr Chairman. It is clear, the evidence is clear in the London bomb incident, no civilians should be injured or killed. The same with the Schoon and First incidents. The intention was at all relevant times to safeguard civilians and innocents.

And then Mr Chairman ...(intervention)

CHAIRPERSON: But was it? Sending letter bombs through the post, is that safeguarding civilians and innocents?

MR DU PLESSIS: No, Mr Chairman obviously there can never be a hundred percent safeguard, and that was the evidence, I think of Mr Williamson and Mr Raven. There can never be a hundred percent safeguard. Obviously in all these kind of actions people get caught in the crossfire. In a war situation people get caught in the crossfire, Mr Chairman. It’s simply, it can never be a situation that you can simply exclude that possibility.

CHAIRPERSON: No but what you’re submitting is the intention was to safeguard.

MR DU PLESSIS: Yes, that’s more applicable to the London bomb incident than the other two, Mr Chairman. I would concede that.

And I submit, and I think I made that point during cross-examination as well Mr Chairman, that the time that was decided upon to place the bomb, was a safe time under the circumstances. I don’t want to go as far as to say, it was the safest possible time, because the evidence wasn’t led about that, but it was one of the safer times under the circumstances.

CHAIRPERSON: Isn’t the test the fact that nobody was injured?

MR DU PLESSIS: Yes. Mr Chairman then paragraph 197.4.4. I make the submission that no intention or motive existed against innocent civilians, and the actions were not directed against innocent civilians. And then I say, in any event nobody was seriously injured, that’s applicable to the London bombing.

ADV DE JAGER: If you’re acting so reckless, can you say no intention existed to injure innocent civilians? If you’re totally reckless of whether they can be injured or not.

MR DU PLESSIS: No, perhaps I should concede that there must have been dolus eventualis at least, Mr Chairman. In respect of the letter bombs, yes. In respect of the letter bombs yes, because in respect of the letter bombs, you send the bomb, accept that somebody may be killed, you don’t know who it’s going to be, you don’t know if it’s an innocent person who’s opening Mrs Slovo’s mail or Mr Slovo’s mail, or some innocent clerk opening mail in some place or another. You don’t know. And in any event, Mr Chairman, Mr Raven and Mr Williamson were only involved in the initial stages of the operation. Obviously there must have been people who were involved in sending away the letters, and we don’t know about that.

Mr Chairman then I come to Katryn Schoon. I say, however, where Katryn Schoon is concerned it is submitted that much casualties are sometimes justified in a war situation. The killing of children were considered justified in cross-border raids and by the ANC with reference to the Church Street bomb, and other attacks as reflected in the ANC’s second statement to the TRC, where the deaths of women and children are documented. Reference should furthermore be made to amnesty given to the murderers of Amy Bhiel, the St James massacre, the Heidelberg Tavern, and Brian Mitchell.

In my submission, Mr Chairman, if we look at the case of Brian Mitchell, it is, to a certain extent, similar to this case, because at the end of the day innocent people were killed in that operation, because the wrong place was eventually targeted. The intention of the perpetrators, Captain Mitchell, was a political intention. He wanted to kill certain people, and they went to the wrong place, and they killed the wrong people. However, he received amnesty. Now in this situation, it is more or less the same Mr Chairman. In every kind of operation things can go wrong, people can come in the way, or things can go totally wrong in the sense that civilians may be killed in the process. And this is one of those incidents, Mr Chairman.

CHAIRPERSON: But isn’t there a difference? In fact I’m certain there is a difference, if the people knew there were children in the house. Mitchell did not know. Mitchell thought that the house that was going to be attacked was an ANC stronghold and anybody there was a target.

MR DU PLESSIS: Yes.

CHAIRPERSON: In this case nobody could for a moment have conceived that Katryn Schoon or her young brother were targets. And if anybody, if there’s any indication that people knew, or should have known, that there were children, the Schoons had children, doesn’t that create a different picture?

MR DU PLESSIS: Yes, except, Mr Chairman, one has to take into account that the bomb went off at a time when Katryn and her mother would have been away from the, from where they were living. That was part of the evidence Mr Chairman. So, obviously we don’t know how the parcel came there. I cannot submit to you that that was part of the plan, but at least it indicates that there is a possibility that whoever was responsible for that piece of postage reaching that destination could have planned it in such a way that she and her mother was not affected by the bomb. There was evidence to that effect Mr Chairman.

The other point that I want to make, Mr Chairman, is that is obviously the risk in using a bomb or a, if I can refer to a limpet mine, or a bomb, in a war situation. In a conventional war situation or in any other situation, Mr Chairman, that’s the problem of a bomb. And one can conceive various different situations in this regard, if you turn the scales around. With ANC supporters planting bombs in different places like Wimpy Bars, Amanzimtoti Shopping Centre, etc., etc., Mr Chairman, where this question is going to arise. And the question is, there, let’s take the Amanzimtoti example, Mr Chairman, the question there is going to be, did that person who planted that bomb, what was his object or objective, was it directed at a political opponent. He’s going to say he wanted to cause fear in the hearts of the white people in this country, he wanted to intimidate. And it was directed against the South African government, not a specific person. The same situation applies here, just turn it around Mr Chairman, civilians can get caught in the cross-fire.

Then Section 20(3)(e). I have dealt with this in detail Mr Chairman. The requirement is whether the act was committed in the execution of an order of, or on behalf of, or with the approval, it goes wider than Section 20.2.B Or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member. And Mr Chairman, it is also important to have regard to what Mr Justice van Dykhorst said about this requirement. He said:

"It had nothing to do with the legality of the order."

Paragraph 197.5.2. He said:

"Most orders by the ANC to its cadres for cross-border incursions, will, in the eyes of our law be legal. If legality had been the test the guidelines would have stated that. By implication, the Committee’s reasoning accepts that acts were committed in the execution of an order or with the approval of the ANC. If this assumption is correct they fall squarely",

and I stopped the, for some reason or another it’s not included, the rest of the quotation Mr Chairman. But the essence of that was that he found that (3)(e), does not relate to any legal order. If a person acted with the approval of his organisation that’s enough. That requirement is satisfied.

CHAIRPERSON: ...(indistinct)

MR LEVINE: Mr Chairman, between thirty and thirty five minutes.

CHAIRPERSON: If you would like to leave a little early, and miss the last few minutes of Mr du Plessis, I’m sure we would have no objections.

MR LEVINE: Thank you Mr Chairman.

MACHINE SWITCHED OFF

MR DU PLESSIS: I’m nearly finished Mr Chairman. Section 20.3.F is the last one Mr Chairman, and that’s the one pertaining to proportionality. And again I want to refer you to his lordship Mr Justice van Dykhorst’s decision. He said, page 208, he says

"As regards the relationship of proportionality between the offences and the political objective pursued, the Committee held the view that in no civilised society could or would the killing of a political opponent be accepted or justified to further political ends."

That was the Committee whose decision was taken on review Mr Chairman, over which Mr Justice van Dykhorst had to make a decision. Then his lordship said the following:

"This is correct, but in my respectful view is not a relevant consideration. In our warped world what is frowned upon if done to a single individual becomes the stuff of sagas if in wartime when whole armies are wiped out. For the purposes of this guideline something akin to a war situation has to be envisaged."

So what he’s really saying, Mr Chairman, is that in a war situation the killing of an opponent can be proportional to the objective pursued.

Mr Chairman, then in paragraph 197.6.3, page 209, I submit that a war situation prevailed in South Africa and that the killing of a political opponent in a war situation would be more accepted and justified. Paragraph 197.6.5. There was no other option than to act against certain activists and terrorists before they could commit terror deeds. And then I refer, page 210, Mr Chairman, to the decision of Boy Dijale and Christopher Makgale, and again to the decision of Captain Mitchell, in respect of the proportionality requirement.

Mr Chairman, in respect ...(intervention)

CHAIRPERSON: Is that your spelling or your secretary’s?

MR DU PLESSIS: My secretary’s Mr Chairman. Everywhere there are mistakes it’s my secretary Mr Chairman. You will see that the latter part of the Heads have lots more spelling mistakes than the first part.

ADV DE JAGER: And every correct one is also your secretary’s contribution.

MR DU PLESSIS: Yes. Mr Chairman, I tried to find authority on the question of proportionality, and how that was applied in international law, for what it is worth, Mr Chairman. It doesn’t seem to make a lot of impression. But in any event Mr Chairman, I tried to do that to find a guideline for you, how to deal with the question of proportionality. Mr Chairman I refer to, from page 211 onto page 213, to how proportionality is dealt with in international law pertaining to war and with reference to the just war theory. And perhaps I can just refer you to paragraph 197.6.9

"Proportionality is a flexible principle which takes into account the balance between the military objective on the one hand and the loss of civilian lives therewith on the other hand."

Perhaps one shouldn’t refer to civilian lives, but just in this instance to lives.

"Proportionality is to be regarded as an aspect of self defence which can justify actions taken in self defence against an armed attack. In this regard it is clear that the overriding motive and the targets were the adults as well the liberation movements and members of the liberation movements. It was planned in such a way that civilians and innocents would not be killed, and it turned out that civilians were killed. The overall evil of the act can therefore be balanced by the good it was perceived to have achieved."

So it is really a balancing act that has to be done, Mr Chairman. Now may I just stop there for a moment, Mr Chairman, and just go away from my Heads of Argument a little bit, and come back to Katryn Schoon. Even if you should decide, Mr Chairman, that in respect of Katryn Schoon, the act was not proportional, it doesn’t mean that the whole application of Section 20(3), just falls away. If the applicants have complied with (a) to (e), and they don’t prove F, the question arises in that situation, Mr Chairman, would they then be, can it be found then that they did not act with a political, that the act was not associated with a political objective, even ‘though there was compliance with all the other requirements. And in my submission it cannot be, Mr Chairman. One has to ...(intervention)

CHAIRPERSON: The Act specifically says, you shall have regard to, shall be decided with reference to. Now you say we should ignore one of the criteria because it doesn’t suit you.

MR DU PLESSIS: No, no, I’m saying Mr Chairman, shall be decided with reference to the following criteria, yes. Yes.

CHAIRPERSON: One has reference to all of them and then tries to evaluate them.

MR DU PLESSIS: Yes, but Mr Chairman what I’m saying, what I’m advancing to you, Mr Chairman, is that non-compliance with one of them, with one of them, does not necessarily take the whole act out of the auspices of the definition of what, of an act associated with a political objective.

CHAIRPERSON: ...(indistinct) must have reference to all of them.

MR DU PLESSIS: You have to have reference to all of them Mr Chairman. But if you ...(intervention)

CHAIRPERSON: And then you make a decision.

MR DU PLESSIS: Yes.

CHAIRPERSON: You might not comply with two of them, yet you still decide.

MR DU PLESSIS: Yes, correct. No then we’re in agreement with that Mr Chairman, thank you. I thought you were not in agreement with me on that. Yes, you have to have regard to all of the factors and then make a decision. But the fact that a person is, that the evidence is perhaps clearer in one situation, or in one of these subsections than in another, doesn’t make a difference to the eventual decision you have to make under the circumstances.

Now Mr Chairman, I’m not going to go into detail further on the proportionality question, except to refer you to page 216, where I make the point that in some instances it was unavoidable that civilians would be caught in a crossfire with reference to Katryn Schoon. And Mr Chairman, then paragraph 197.7. Where I refer to the political motivation which was set out in Mr Raven’s evidence, and the fact that bomb attacks, intimidation and disinformation of white voters were dealt with. You remember that general justification advanced in all the applications, Mr Chairman. I’m not going to repeat that. Bomb attacks had usually the purpose of intimidation, etc.

Mr Chairman and then, if I can deal with paragraph 198, that just deals with the question if there was malice, ill will or spite. Mr Raven didn’t know Ruth First, he didn’t know Jeanette School or Marius Schoon, so there can never be any question of this being applicable. And then I refer you to the previous application of the Norgaardt principles, which I’m not going to go into. That goes on, Mr Chairman, to paragraph 218. It is clear that Professor Norgaardt applied the subjective approach in respect of Section 20(3), and that he gave more weight, Mr Chairman, he lent more weight to the subjective parts of the test than the objective parts of the test.

And then the question of full disclosure, Mr Chairman. The question is, was there full disclosure on Mr Raven’s side pertaining to this application. And I make the point there in paragraph 219, Mr Chairman, that there must be full disclosure pertaining to all relevant facts. Now what are all relevant facts, Mr Chairman? Does one have to go and fetch this matter from Cape Town? Where do you start and where do you end with what is relevant and what is not? In my submission, Mr Chairman, I’m nearly finished Mr Chairman, my submission is that relevant facts would be the facta probanda of each and every offence or delict. That is paragraph 219 Mr Chairman. And in this regard there was no evidence to contradict the evidence of the applicants. That’s paragraph 220. No evidence to contradict the evidence of Mr Raven or Mr Williamson, pertaining to this issue. Their evidence didn’t contradict each other, and there was no evidence to show, Mr Chairman, that this whole action, the London bomb, Ruth First, and Jeanette Schoon, in respect of those applications, that it happened in any other way than it did happen. That there may be facts which were not disclosed. There is no evidence of that. Nobody came and said, but they didn’t testify to this or that or the other.

Mr Chairman, paragraph 224 I make the point, it is submitted that the applicants had no reason to lie whatsoever. It should be taken into account that the applicants came forward out of their own free will to participate in this process. And there were no important differences in the versions of Williamson and Raven, notwithstanding days of cross-examination, Mr Chairman. Raven gave a full explanation of the manufacture of the bombs. The important fact, paragraph 228, Mr Chairman, the important fact is that he made the bomb that killed the people. I’m nearly finished Mr Chairman. It makes no difference how he used the envelopes, and did he put his fingers around them, did he use them horizontally or vertically or in whatever way. He accepted that he manufactured the London bomb and the bombs in the First and Schoon incidents. He testified, paragraph 230, he testified what he knew, of the targets in the First and Schoon incidents, about his orders, and he wasn’t contradicted by any other witnesses. His version was corroborated in the London bomb incident by McPherson, Taylor and de Kock.

And Mr Chairman then I set out a list of what he applies for. May I include in paragraph 233.8 also murder, not just attempted murder.

Mr Chairman, lastly, I refer you to law, paragraph 240 and further, why the evidence pertaining to the tape recordings is not admissible. I’m not going to go further than the argument raised there, and the authorities referred to there. My attorney has given an indication that we don’t have a problem, so I am not going to dispute this, and I’m not going to make this a dispute. I simply refer you to the law applicable to that.

And Mr Chairman, at the end of the day, to end my argument Mr Chairman, after this long day, at the end of the day you have to sit back and ask yourself the one simple question, Mr Chairman. Did Mr Raven act with a political motive in respect of the First and Schoon incidents, and the London bomb incident? And in my submission I have shown clearly to you that there can be no doubt whatsoever that he did so. Did he make a full disclosure in these incidents? The simply question there is, Mr Chairman, is there any fact before you saying that he didn’t? Is there any, are there any, were there any major contradictions between the relevant witnesses, called as applicants in this matter? No, there weren’t Mr Chairman. So at the end of the day, Mr Chairman, he acted with a political motive, he made a full disclosure, there is nothing before you that shows that there are facts which he should have disclosed and which he didn’t disclose, and for that reason, and for those reasons, Mr Chairman, Mr Raven should receive amnesty in respect of all there incidents.

I don’t know if there’s anything else you want me to address you on, Mr Chairman.

CHAIRPERSON: You’ll no doubt be back with us on Monday. If there is, we’ll have time to ask you then.

MR SIBANYONI: Mr du Plessis, just one short question. What do you say about his evidence that, I mean your client, the evidence that he worked with the envelope, he saw the address where it went to, he saw the stamp or the logo, but he couldn’t see the name?

MR DU PLESSIS: Yes, he testified, Mr Chairman, that he, that he saw the envelope, but he didn’t see the address. You must remember, with respect, Mr Chairman, that his evidence was that when he received the envelope it was in another envelope.

CHAIRPERSON: There were two envelopes.

MR DU PLESSIS: There were two envelopes. So the addressed envelope, the envelope with the address on, was in a bigger envelope in which it was given to him. And he dealt with it on that basis. He says he never saw the address. He didn’t know where it went to. But in any event, Mr Chairman, let’s say for instance you accept that he saw the address, that he knew where it went to, it doesn’t make any difference to his application. It doesn’t make any difference to his application because he’s before you today, he says, I built the bomb, I made the bomb that killed those people. And that is the important thing Mr Chairman. Even if you decide, even if you decide, that you do not want to believe him on that specific point, that is not enough to deny him amnesty, Mr Chairman. It is not something that, it is not a fact, a relevant fact pertaining to the criminal offence, that he hasn’t disclosed to you. And on that basis, Mr Chairman, he cannot be found to have not made a full disclosure, if there is doubt about perhaps one point of his evidence. But in any case his evidence was clear in that regard, that he never saw the address.

Thank you Mr Chairman.

CHAIRPERSON: We’ll adjourn until what, half past nine? Half past nine suitable? Did Mr Levine go?

COMMITTEE ADJOURNS