Amnesty Hearings

CHAIRPERSON: The next applicant is Captain van Jaarsveld.

MS LOCKHAT: That is correct, and Mr Meintjies appears on behalf of him.

CHAIRPERSON: And Mr Meintjies is appearing on his behalf. Mr Meintjies, I note that it's five to one, will this not be the appropriate time to take an adjournment instead of starting with Captain van Jaarsveld and breaking up after about five minutes of him giving his evidence-in-chief.

MR MEINTJIES: I agree with you, Madam Chair. The evidence-in-chief will be very short and brief, but we have no control about cross-examination.

CHAIRPERSON: Yes. I'm thinking about cross-examination.

MR MEINTJIES: I agree with you, Madam Chair.

CHAIRPERSON: We'll take a lunch adjournment, we'll reconvene at five to two. Is that convenient for all of those who are concerned here? Maybe some people have made other arrangements for lunch, lunch meetings. Is that appropriate, Mr du Plessis, I know you have to take instructions from Mr Ras. Will it be convenient for us to come back at five to two?

MR DU PLESSIS: Yes, it will be.

CHAIRPERSON: We'll reconvene at five to two.

MS LOCKHAT: Please stand.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Ms Lockhat, before we proceed with the cross-examination of Mr Gouws, can you just - Mr van Jaarsveld's evidence, can you just make an indication to us with regard the matters which are set down for tomorrow morning, what is the arrangement?

MS LOCKHAT: Chairperson, preferably we want to attempt with the Jerry Thibedi matter tomorrow. Advocate Roelof du Plessis can later today confirm whether his client will be available tomorrow morning. If not, we will commence with the murder of Kruschev, Marx and Moatshe matter.

CHAIRPERSON: Is that in order with you, Mr Visser?

MR VISSER: Chairperson, yes, Ms Lockhat informed us what she's just told you. We have all the hope that we will be able to start tomorrow if required to do so. There are two, possibly three of our witness who might not be able to make it tomorrow, but we're hopeful that we'll get all of them, if not most then all of them here tomorrow. Yes, we could start tomorrow.

CHAIRPERSON: Are they witnesses or applicants?

MR VISSER: Applicants, applicants.

CHAIRPERSON: Would you be in a position to proceed with those who will be here definitely tomorrow morning?

MR VISSER: Oh yes, and I may add that most of the applicants will be here.

CHAIRPERSON: Can we therefore arrange that we start with Mr Visser's matter in the morning at 10 o'clock, just to make sure that everybody is here.

MS LOCKHAT: That's in order, Chairperson. Then just the other matter, the killing of Richard and Irene Motasi, just to inform the Committee that this matter has been removed from the role, due to the operation that Mr Ras is going to undergo.

CHAIRPERSON: Yes. Will you please make sure that, or Mr van den Berg is here, can you please just explain to the people who are appearing, for whom you are appearing, why the matter has been removed from the role?

MR VAN DEN BERG: I hope, Madam Chair, that I'll be able to intercept them before they leave. I know that they have made arrangements to come and stay over in Pretoria and that they would have left today, so I hope that I will be able to speak to them before they leave Soweto. If not, I'll certainly speak to them this evening in Mamelodi.

CHAIRPERSON: Yes.

MR DU PLESSIS: Chairperson, I'm sorry, may I mention the two other matters in which my deceased client was involved in, the Cele and the Sibaya and Mpho matters. I accept that they've been removed from the roll. May I just enquire from you, I presume that the matters will then, these matters will be dealt with in chambers because of the fact that there may still be civil liability against Mr Crafford's estate and obviously I can't present evidence, so I'll have to rely simply on the evidence in the amnesty application.

CHAIRPERSON: That is so, Mr du Plessis.

MR DU PLESSIS: Thank you.

CHAIRPERSON: That will be done in accordance with the provisions of the Act.

MR DU PLESSIS: Yes, thank you, Madam Chair, I just wanted to make sure, thank you.

CHAIRPERSON: We will then proceed with the ...(intervention)

MS LOCKHAT: Mr van Jaarsveld.

CHAIRPERSON: ... with the cross-examination of Mr van Jaarsveld.

MS LOCKHAT: His evidence-in-chief, Chairperson.

CHAIRPERSON: Oh, we stopped Mr Gouws cross-examination, we are now starting with a new application.

MS LOCKHAT: That is correct, Chairperson.

CHAIRPERSON: You are excused again, Mr Visser, until tomorrow morning.

ADV DE JAGER: Mr Visser, I heard something about 10 o'clock, I don't know whether - could it be nine thirty? We really want to try and finish all the applications this week because we're needed it in Cape Town next week, if possible but if not possible, it's not possible.

MR VISSER: Madam Chair, I wasn't aware of that. I was under the impression we've got next week as well and I thought that there wasn't any pressure, but now that you've told me well now certainly it's going to influence the whole situation, the way we lead the evidence etc., etc. I must now certainly prepare documentation to place it before you, to enable me to go quickly over the evidence and all sorts of things, but you say half past nine tomorrow morning? I'm sure we can start at half past nine tomorrow morning, Mr Chairman - Madam Chair.

CHAIRPERSON: Mr Visser, I was accommodating you because I know that you were expecting the Motasi matter as well as the Thibedi matter to be heard first, and that we had earlier on said we'll accommodate counsel so as not to detain them here and obviously prevent them from making big fees which they would be making whilst they are in their chambers. So I was saying 10 o'clock just to accommodate that particular eventuality.

MR VISSER: It certainly didn't ...(intervention)

CHAIRPERSON: ...(indistinct) client's were not expected to be early in the morning.

MR VISSER: It didn't go unnoticed and we do appreciate your gesture, but by the same token, if there's going to be an urgency that's crept into the issue, then we'll be here tomorrow at half past nine.

CHAIRPERSON: No, I think we can start at 10 o'clock. I appreciate my colleague's problem with regard to a thirty minute delay, but I think let's make sure that we do also accommodate your particular problem.

ADV DE JAGER: Or perhaps we could make it up lunch time tomorrow and sit, half only half an hour adjournment then.

CHAIRPERSON: Yes.

MR VISSER: Madam Chair, again, thank you very much for your consideration that you are showing, but we really can start tomorrow morning at half past nine.

CHAIRPERSON: If you are very sure that all your clients or most of them will be here by that time, I'm really in your hands, but I wouldn't like you to think that we are unreasonable and not accommodating the problems that we know you are likely to experience because you were not expected to be in this matter tomorrow morning.

MR VISSER: Thank you yet again, but I believe that we can be ready to go on at half past nine, thank you.

CHAIRPERSON: We'll then proceed at nine thirty. You are excused, Mr Visser.

MR VISSER: Thank you, Madam Chair.

CHAIRPERSON: Mr Meintjies, are you in a position to proceed?

MR MEINTJIES: Yes, Madam Chair.

ADV DE JAGER: Mr van Jaarsveld, your full names?

JAKOB JAN HENDRIK VAN JAARSVELD: (sworn states)

EXAMINATION BY MR MEINTJIES: Mr van Jaarsveld, the general political situation in the country has been set out by you in your application with regard to the death of Mr Ribeiro and Mrs Ribeiro. This is also of application to this application?

MR VAN JAARSVELD: Yes, that's correct.

MR MEINTJIES: You have heard the evidence of the other witnesses in this specific application and it appears that the specific political motivation is situated therein, that Security Forces wanted to oppose the onslaught of liberation movements.

MR VAN JAARSVELD: That's correct.

MR MEINTJIES: And that it was regarded as a pre-emptive strike.

MR VAN JAARSVELD: That's correct.

MR MEINTJIES: Mr van Jaarsveld, I would then like to take you to the day upon which this incident, known as the KwaNdebele 9 incident, took place.

MR VAN JAARSVELD

"On Monday, 14 Julie 1986, during the day my colleagues, Jacques Hechter, came to me and told me that there was an operation which was to be executed. He wanted to know if I wanted to accompany him and I answered in the affirmative and it was agreed that he would pick me up that evening."

ADV DE JAGER: What was your rank relationship at that stage?

MR VAN JAARSVELD: At that stage both of us were captains.

MR MEINTJIES: Did he give you any further information regarding the operation?

MR VAN JAARSVELD: Yes, Chairperson, he also informed me during our discussion that the operation would take place in KwaNdebele, surrounding youths who had already - let me just establish the point here. They were youths who had already undergone a certain measure of training. They had been identified by Joe Mamasela and they were underway to leave the country for further training by the ANC.

MR MEINTJIES: Did you regard it as your duty as a member of the Security Police to go along?

MR VAN JAARSVELD: Yes.

MR MEINTJIES: Why do you say that?

MR VAN JAARSVELD: The duty emanates from a discussion and a general instruction which had been issued earlier, on the 12th of February 1986, at five thirty that morning when Brigadier Viktor, or in Brigadier Viktor's offices.

MR MEINTJIES: What took place during this meeting?

MR VAN JAARSVELD: During this meeting and the discussion with Brigadier Viktor, as stated in the evidence during the Cronje matter before the Committee, Brigadier Viktor told us that Pretoria was burning and that we had to fight fire with fire.

ADV DE JAGER: Could you please give the date of the meeting once again?

MR VAN JAARSVELD: The meeting took place on the 12th of February 1986, at five thirty a.m.

CHAIRPERSON: Was it a.m. or p.m.?

MR VAN JAARSVELD: It was five thirty a.m.

MR MEINTJIES: Chairperson, perhaps I can refer you to an exhibit in the application of the Cronje five. I don't know what the number of the exhibit was, but it was a document prepared by my client in respect of The National Security Management System, where on page 10, about the last quarter he gives full particulars regarding the meeting with Brigadier Viktor, or General Viktor.

Can you then proceed and tell the Committee what happened and what your participation was?

MR VAN JAARSVELD

"On the same evening, it could be between 10 or 11 that evening, Jacques Hechter, Wouter Mentz and Deon Gouws arrived at my house as we had agreed to pick me up. At that stage I did not want to go with because one of my sons became ill that day with an asthma attack. They left some of their vehicles at my house that evening and would have picked them up later on."

MR MEINTJIES: After this specific evening, did you receive any feedback with regard to the incident?

MR VAN JAARSVELD: Yes, the following morning at the office I asked Jacques how the operation had gone, he then told me that they had shot dead nine youths in a house. He also informed me that Deon Gouws, Joe Mamasela and Andre Oosthuizen had fired shots. He himself had not fired any shots. Wouter Mentz drove the vehicle and he also didn't fire any shots. He then told me that he poured the petrol in the room and that Deon Gouws threw the burning match into the room.

MR MEINTJIES: May I ask you whether you would have held back if you had accompanied the group or would you have participated fully in the incident? What was your purpose in your agreement to accompany them?

MR VAN JAARSVELD: I would have participated fully in the incident.

MR MEINTJIES: I have no further questions.

NO FURTHER QUESTIONS BY MR MEINTJIES

CHAIRPERSON: Thank you, Mr Meintjies. Mr du Plessis, any cross-examination?

MR DU PLESSIS: I have no questions.

NO QUESTIONS BY MR DU PLESSIS

CHAIRPERSON: Mr Polsen, do you have any questions to put to Captain van Jaarsveld?

MR POLSEN: I have no questions, Chairperson.

NO QUESTIONS BY MR POLSEN

CHAIRPERSON: Mr Rossouw?

CROSS-EXAMINATION BY MR ROSSOUW: Thank you, Madam Chair, just a couple of questions.

Mr van Jaarsveld, in the evidence which you have given with regard to the matter of Mr Nutili, I will ask you to redeliver this by and large for the sake of the new member of the Committee. Might I ask you, you were a member of the Security Branch and we have these persons from another unit, this Special Investigative Unit, did you find it strange that they were involved?

MR VAN JAARSVELD: No, not at all.

MR ROSSOUW: Why not, could you elaborate on that?

MR VAN JAARSVELD: The units, as I have given evidence with regard to the Ntuli incident, co-operated with one another and the special operational group which was active with the Northern Transvaal Security Branch consisted of specialists who would have worked in that area. And the agreement between Brigadier Cronje and Suiker Britz, with regard to the members of Murder and Robbery, or at least Brigadier Cronje and Daantjie van Wyk of the Special Investigative Unit meant that members of those units would be active with the Security Branch and fall under the command of the Security Branch.

MR ROSSOUW: Would you say that subordinate officers such as Mr Gouws and Warrant Officer Oosthuizen at that stage were in any position to question the commands or orders of a higher ranking officer?

MR VAN JAARSVELD: No, not at all.

MR ROSSOUW: Would you say that under their circumstances it was expected of them to report back to senior officers regarding their involvement in operations?

MR VAN JAARSVELD: It is very difficult for me to say whether or not that would be expected because it's difficult to say what the relationship of that senior or subordinate officer was with his commander, but because of the circumstances due to the agreements between Cronje and his colleagues on an equal rank level, I don't think it would have been necessary because it would have been accepted that that which took place would remain there as a result of the secrecy.

MR ROSSOUW: Finally, might I ask you the following. When these persons arrived at your house, Mr Gouws says that he cannot remember it at all, however when they arrived at your house, what was your impression, your previous impression and your knowledge of this operation? Did you know or think that these people were going out on a frolic of their own to shoot a couple of people, or was this in your mind a bona fide operation of the Security Forces, with the support of the police? What was your sentiment regarding that?

MR VAN JAARSVELD: Chairperson, it is very difficult to say that policemen operated on frolics of their own and any assumptions or ideas of that nature are, with regard to the circumstances of that time and the context within which orders were given and operations were undertaken, I will once again refer you to the counter-revolutionary strategy of the government, which was established by the National Security Management System in the local JMCs, as well pertinently in the case of Northern Transvaal, the structures which were established and the strategy with regard to the combating of the UDF, these were operations that were not undertaken as frolics, but these were operations that were undertaken as a result of definite orders that were given.

MR ROSSOUW: Thank you, Madam Chair, I have no further questions.

NO FURTHER QUESTIONS BY MR ROSSOUW

CHAIRPERSON: Thank you, Mr Rossouw. Mr van den Berg.

CROSS-EXAMINATION BY MR VAN DEN BERG: Just a few questions, Madam Chair.

You did not receive an order from Hechter to participate in this operation, is that correct?

MR VAN JAARSVELD: Let me ask you, how would you quantify or qualify an order?

MR VAN DEN BERG: If we study your evidence you have said

"He asked whether or not I wanted to accompany them."

Do you agree with that or not?

MR VAN JAARSVELD: That's correct.

MR VAN DEN BERG: The information which Hechter gave you was that he was the person who had poured the petrol and that Gouws had set it alight, is that correct?

MR VAN JAARSVELD: That's correct.

MR VAN DEN BERG: No further questions, Madam Chair.

NO FURTHER QUESTIONS BY MR VAN DEN BERG

CHAIRPERSON: Thank you. Captain van Jaarsveld, you and Captain Hechter were both Captains in the same unit.

MR VAN JAARSVELD: Yes, that's correct.

CHAIRPERSON: Were you in a position to take instructions from Captain Hechter?

MR VAN JAARSVELD: Chairperson it was a question of me being a unit commander for the Special Investigative Unit and at that stage, Brigadier Cronje brought along the unit of which Hechter was in command, and as a result I would have reported back to him in equal rank and as such I also would have received orders from him.

CHAIRPERSON: So what you are basically saying is that you were in a position to take instructions from Hechter?

MR VAN JAARSVELD: That's correct.

CHAIRPERSON: Notwithstanding the fact that you both were Captains in the same unit?

MR VAN JAARSVELD: We were both Captains. I would like to explain to you again that I was the unit commander of a specific investigative unit, Unit B, and Captain Hechter at that stage was the commander of the operational unit.

CHAIRPERSON: Thank you. Mr de Jager, do you have any questions to put to Captain van Jaarsveld?

ADV DE JAGER: With the facts at your disposal, would you yourself have issued any instructions under those circumstances?

MR VAN JAARSVELD: Chairperson, I would probably have questioned Mamasela's information.

ADV DE JAGER: Why would you have done that?

MR VAN JAARSVELD: I beg your pardon, Chairperson. I have a problem with Joe Mamasela and his approach to these youths and the information which he collected regarding them, this is my personal opinion in this matter, and that is that Joe Mamasela acted as an agent provocateur and that he incited these youths to go for the so-called training.

CHAIRPERSON: Is that the opinion that you held of Mr Mamasela?

MR VAN JAARSVELD: Chairperson, that is the opinion which I currently hold over Mamasela. At that stage that was not my opinion of him.

CHAIRPERSON: Are you responding to my colleague's question, not as a fact which you had or an opinion which you held at that time when you were approached by Captain Hechter?

MR VAN JAARSVELD: It is pure opinion which I'm canvassing at the moment after I've heard all these matters. As a student of international politics and specifically strategy, I cannot say that I'm an expert regarding the ANC counter-revolutionary strategy, I would like to say that that is my current opinion.

CHAIRPERSON: Mr Lax?

MR LAX: Thanks, Chairperson. Was this - do you have any knowledge whether this particular operation was authorised through any JMC structures or not?

MR VAN JAARSVELD: No, the operation would not have been approved by any national security management structure per se, but in terms of the existing strategies which reigned at that time, for example the counter-revolutionary strategy as well as the strategy for the combating of the UDF.

MR LAX: You see your earlier evidence was that operations of this nature would have been sanctioned by the local joint management structures. That was your evidence. So I'm asking, and in the light of that, was this one authorised and now you're saying well matters of this nature wouldn't have been authorised, but were part of a general strategy. So I just want you to reconcile the two bits of your evidence. On the one hand you said operations of this nature would have been authorised by local JMC structures and now you're saying something subtly different, that this was just part of a general strategy.

MR VAN JAARSVELD: Chairperson, perhaps I should give you the situation surrounding the National Security Management System and the JMCs as well as the branches. I have submitted such a document ...(intervention)

MR LAX: Sorry, if I can interrupt you. We are very familiar with the structure, that's why I'm asking you these questions. I heard you evidence very clearly and I made a note of it to ask you this question, that's why I'm asking it, because you spoke about local structures as opposed to national structures. You spoke about operations of this kind would have been authorised at local level, that's how you put it. But that's really why I'm asking such a focused question. I'm fully familiar with the whole JMC structure, from State Security Council downwards. I personally made a study of it many years ago, but anyway ...

MR VAN JAARSVELD: I must reiterate it is not a question of I think, this operation would not have enjoyed approval on JMC level, but in terms of the structures such an operation would have been planned within the Security Police or the army or National Intelligence, whoever resided in that structure and that is where the approval for these operations lay, because a person within that structure would have had to seek out the approval for such an operation on a higher level if the senior commanding officer was not capable of the power to approve such an operation.

MR DU PLESSIS: Chairperson, may I be afforded to ask one or two questions flowing from the questions of the Committee?

CHAIRPERSON: Yes. Mr Lax is still busy putting questions to Captain van Jaarsveld.

MR DU PLESSIS: Oh, I thought he was finished, I'm sorry.

MR LAX: Just one other aspect. You've implied, from answers arising from questions that have been asked of you, that Captain Hechter was in essence, you were subordinate to him even though you held the same rank, have I understood you correctly?

MR VAN JAARSVELD: That's correct.

MR LAX: And that in that sense you took instructions from him and in particular with this operation, have I understood you correctly?

MR VAN JAARSVELD: Yes, that's correct.

MR LAX: Now the difficulty I have with that statement is based on the annexure to your application, and I refer you to page 15, the second last paragraph where we begin to talk about this Incident 3, and I'll read you the paragraph so it is clear, the whole context.

"On Monday 14 July 1986, during the day, Jacques Hechter came to me. He said that they had an operation which was to be executed. He asked whether I wanted to accompany, I answered in the affirmative."

Now it's clear from that that he invited you, he asked you if you wanted to come along, he didn't order you to go along, he didn't say you must come with me, this in an order. You could have chosen not to.

MR VAN JAARSVELD: Chairperson, it was as such that between officers there would be a word such as cordiality and officers of the same rank would ask each other things instead of telling each other things. That has always been the custom in military structures and that is exactly what I meant by this. Whether to ask later whether or not I would have taken orders from him, the answer is yes, I would have, but it was done according to this fashion.

MR LAX: Thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Lax. Mr du Plessis, you will now be afforded an opportunity to put a few questions.

CROSS-EXAMINATION BY MR DU PLESSIS: Thank you, Chairperson.

Mr van Jaarsveld, might I ask you the following. These actions are actions where only a limited number of people were involved or would have been involved, is that correct?

MR VAN JAARSVELD: Yes, that's correct.

MR DU PLESSIS: And that would be the reason why it did not go through the usual JMC structure, because not everyone knew about these operations or had to know about these operations.

MR VAN JAARSVELD: Yes, that's true.

MR DU PLESSIS: And can one actually describe it as almost an alternative chain of command or structure of command which existed beyond the usual structures?

MR VAN JAARSVELD: Yes, certainly.

CHAIRPERSON: Mr du Plessis, may I caution you, you are not the witness, Captain van Jaarsveld is the witness. Put your questions pointedly, in such a way that he's the one who is giving evidence and not you.

MR DU PLESSIS: Well Chairperson, I am cross-examining, but I take note of what you say.

Now Captain, I would just like to put to you what Captain Hechter testified regarding his recollection of the order and the operation and his discussion with Joe Mamasela, but before that, might I just ask you whether or not you were involved in any way in this incident in discussions with Mr Mamasela with reference to youths who were leaving the country and so forth?

MR VAN JAARSVELD: Not with regard to this particular incident.

MR DU PLESSIS: So you don't have any knowledge of discussions between Hechter and Joe Mamasela?

MR VAN JAARSVELD: No.

MR DU PLESSIS: So then you would not be able to dispute Hechter's evidence where he says that he gave specific instructions to Mamasela. In the following sentence he testified

"He was not to recruit anybody pertinently. He came to me and said that he had been approached by the comrades element, the activists, to assist them with training abroad."

CHAIRPERSON: What's the reference page, Mr du Plessis?

MR DU PLESSIS: I'm sorry?

CHAIRPERSON: What's the reference page of what you are reading?

MR DU PLESSIS: Page 817, I beg your pardon. Page 817, bundle 2(g).

"Then I asked him what did Mamasela tell you, did they approach him or did he approach them?"

Then Captain Hechter said:

"They approached him. That is what he told me, that he had been approached by an element, by the activists. Since, as I have already testified, he was known as an MK member."

The question is, you didn't have any factual basis upon which you could dispute this evidence?

MR VAN JAARSVELD: No, not at all.

MR DU PLESSIS: And as I understand you, the evidence regarding Mamasela was a perception, which only after this entire incident took place, if I understand you correctly, this perception has only taken roots in the past year or two?

MR VAN JAARSVELD: Yes, that's true, it's a perception that was formed after 1988.

MR DU PLESSIS: Thank you, Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR DU PLESSIS

MS LOCKHAT: Chairperson, I have just one question to ask the witness.

CHAIRPERSON: Before you do that, Ms Lockhat - I want to understand you, Captain van Jaarsveld, I'm getting a little confused from the questions put to you by Mr du Plessis with regard to when you formed an opinion about Mr Mamasela. Did you at the time when you were approached by Captain Hechter, already have this opinion about Mamasela or this is an opinion that was formed two or three years ago?

MR VAN JAARSVELD: It's an opinion which was formed in later years at that stage. As I said earlier it is a post 1988 opinion.

CHAIRPERSON: Yes, because I did not understand your evidence to be to the effect that that was the opinion that was formed only a few years ago, I thought your evidence to a question put by Mr de Jager was that you already had a problem with Mr Mamasela, particularly with the way in which he collected information.

MR VAN JAARSVELD: Chairperson, no, it's possible that there could be a misunderstanding, that is not what I meant. All of us trusted Mamasela at that stage, but during later years it became clear after I had left the force, that one could no longer trust that man, we could not trust him at that stage.

CHAIRPERSON: Thank you, that really clears my confusion. Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Mr van Jaarsveld, I've got one question to ask you, what was your role supposed to be in this operation?

MR VAN JAARSVELD: My role would have been purely logistical, I would have either driven the vehicle or provided external defence.

MS LOCKHAT: What do you mean by external defence?

MR VAN JAARSVELD: In any form of an operation there would be various levels. To protect the operatives there would be people on the outside who would provide defence, they would not participate physically in the incident, but should anybody else arrive on the scene they would act to prevent anybody that was involved in the incident from being discovered.

MS LOCKHAT: Thank you, Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: In essence, you would have participated in the operation in whatever role would have been assigned to you by Captain Hechter?

MR VAN JAARSVELD: That is correct.

CHAIRPERSON: I think this is the end of Captain van Jaarsveld's evidence. Captain van Jaarsveld, you are excused.

MR VAN JAARSVELD: Thank you, Madam Chairperson.

WITNESS EXCUSED

CHAIRPERSON: Ms Lockhat, we are now in your hands.

MS LOCKHAT: Chairperson, we will commence with argument in this matter.

CHAIRPERSON: We will appreciate it greatly if we can do so. Can we do that immediately?

MS LOCKHAT: Yes, Chairperson.

CHAIRPERSON: Thank you.

MR DU PLESSIS: Chairperson, may I be excused?

CHAIRPERSON: You may be excused, Mr du Plessis.

MR DU PLESSIS: Thank you.

CHAIRPERSON: Who is going to commence, is it Mr Rossouw or Mr Polsen?

MACHINE SWITCHED OFF

MR POLSEN: ...(inaudible)

CHAIRPERSON: Yes.

MR POLSEN IN ARGUMENT: ... and therefore I can perhaps deal with it very quickly. After the remarks and the evidence that was given this morning, I considered carefully what remains of the application for amnesty in my instance and I have only a slight concern which I wish to put to you and I wish to leave in the hands of the Committee, in the sense that the Committee can decide whether to refuse perhaps the application, should they feel that there is no substance in this application.

As far as the murder for the KwaNdebele 9, there is no evidence to show that Colonel Kendall was involved actively in the commission of the murder, or that he aided and abetted the commission of that murder in the sense that he's an accessory before the fact or a socius criminis. But what does concern me is that given the fact he is an employee of the state, he is a policeman with a particular area of jurisdiction and KwaNdebele falls within that jurisdiction, he is supposed to know what is happening in his particular area.

Given that against the background of the evidence set forth by Minister Vlok, General van der Merwe, to a certain extent the Mortimer Report, which we have made part of the application, and the findings of the Amnesty Committee in the matters of Cronje and Hechter, we know now that the functions of the police somewhat changed. He knew about the request received from Brigadier Cronje to introduce Mamasela to Shabangu, with regard to the existence or non-existence of a group of youngsters in that particular area.

He then a few days later finds or is requested by Doctor van Niekerk to inspect the number of burnt bodies in the mortuary. Given - or let's postulate normal times, a policeman with that knowledge would I think have a duty to at least inform the investigation team tasked with the investigation of that particular circumstance, of his knowledge for what it's worth.

In the sense that he did not do so, he must have taken a conscious decision not to reveal this information to the investigation team. Insofar as he did that, he may have developed the intention to conceal this information, thereby defeating the ends of justice. But ...(intervention)

CHAIRPERSON: Before you proceed, he would have consoled information in respect of which act?

MR POLSEN: Well it would have been information which may have led to the detection of the perpetrators of a particular crime. Now whether it is this particular act, the commission of a murder, he wasn't aware of the fact that somebody had committed that murder, but after having viewed the bodies he clearly must have suspected that the bodies, well that a murder must have been committed. Now obviously ...(intervention)

ADV DE JAGER: But why should he suspect that the bodies he's seen and which he might have expected there was a murder, why should he expect that those bodies related to the people that's been seen at the Bundu Inn, it's 30 kilometres from there, so it might have been another group. Why should he relate the murdered people to those youngsters that might have been at the Bundu Inn?

MR LAX: Can I add this to the brew and then you can reply to both in a sense. The other thing was that on his evidence before us, the bodies were severely burnt, and what van Niekerk put to him was; this is the Mbogoto, don't you think your Mbogoto has gone too far, and he didn't think any more of it, that is clear from his evidence, he assumed it was them. So in the light of that, how was he to then create the link between the two?

MR POLSEN: Madam Chair, yes, I understand your difficulty. I also have a difficulty in making that paradigm shift. I don't think I can take this matter any further, but I am reluctant to withdraw the application with regard to that particular residue of the application as it were. And it is a matter of being very cautious, one doesn't want this person to be prosecuted for something at a later stage. I don't think I'll take this matter any further, I cannot. I will leave it there.

CHAIRPERSON: You do appreciate though, Mr Polsen, that on the basis of the entire evidence before this Committee, the persons that are now called KwaNdebele 9 could definitely not be the persons that Mr Kendall was requested by Brigadier Cronje to investigate because the information or the evidence, the clear evidence of Captain Hechter is that Brigadier Cronje knew nothing of this operation, that there was no need to do anything in terms of having to identify the whereabouts of the young activists because Mamasela, when he approached him, already knew where the youngsters were. Not only did he know where there youngsters were, he actually knew the address and the house.

So if we are to go on the basis on which you want to persist with your application, it then would present us with problems because your application is based on the fact that Cronje telephoned Mr Kendall in order to establish the whereabouts of the young activists, whereas the person who was in charge and in control and supervised the operation, Captain Hechter, has evinced that Mamasela already knew that kind of information, so this can't be the same incident. This is the problem that we want to make you aware of, and that will be the difficulty in not being able to entertain this kind of an application.

MR POLSEN: Thank you, Madam Chair, for that. I have noted the difficulty that the Committee will have, and if I may have one minute to take a final instruction?

CHAIRPERSON: Yes, you may do so.

MR POLSEN: Thank you. Madam Chair, in the light of our discussion here and the argument, I withdraw the entire application, thank you.

CHAIRPERSON: Thank you, Mr Polsen. Mr Rossouw?

MR ROSSOUW: Thank you, Madam Chair.

ADV DE JAGER: Not the entire application, in relation to this incident?

MR POLSEN: Yes, of course, only with regard to this particular incident, thank you.

CHAIRPERSON: You may proceed, Mr Rossouw.

MR ROSSOUW IN ARGUMENT: Thank you, Madam Chair. Mr Rossouw on behalf of applicants Gouws and Oosthuizen.

Madam Chair, as far as the requirements of the Act are concerned, very briefly I submit that both applicants have complied with the requirements of Section 20(1)(a). Their applications were lodged before the first cut off date, on the 12th of December 1996 ...(intervention)

CHAIRPERSON: You don't have to address us on that. On the procedural requirements we are happy. You may proceed to address us with regard to the requirements of Section 20(2)(b), whether you meet those or not.

MR ROSSOUW: Thank you. Madam Chair, there can be no question that objectively they were members of the, or the were employees of the state, they were Police Force members.

The question whether they acted in the course and scope of their duties, Madam Chair, you're heard the evidence by senior officers at that time, that they would not be in a position to question orders given by senior police officials. Now Madam Chair, in my mind I've also got some questions about this and maybe it's because I was not in the Police Force at any time, I don't know how the structures worked and therefore I would submit that one cannot view this as an armchair critic, one should place yourself in the situation at that time. And that is the reason why both applicants have referred to the evidence as set out in Exhibit G. I ...(intervention)

ADV DE JAGER: Even if they could question it, but decided not to question it because they thought in their minds it was national interest, what would the difference be?

MR ROSSOUW: Madam Chair, maybe, yes, I apologise for saying question it. I would like to say that the evidence is that they were in no position to refuse to carry out such an order. Taking into account - so the fact is that they regarded this as their duty, I specifically led the evidence that where Mr Mentz said that it was still part of his duties to fight the onslaught, the revolutionary onslaught. And that, Madam Chair, I would submit that that is the evidence by these two applicants, they saw it as their duty. I think for somebody with a rank of a Sergeant being involved in this operation with such senior ranking police officials as a Captain, what applicant Gouws said that he regarded this as work, is the essence of how they saw their duties.

I would therefore submit that there can be no question that in the light of the background at that stage, testified by Minister Vlok, that they were police officials on the ground who bona fide believed that they could conduct, they could partake in this operation even though it was an illegal one.

We've heard the evidence of Mr Oosthuizen, that he'd even discussed this with Captain Hechter prior to the operation and he asked them what will happen if we were for instance found out so to speak, because he knew that the army was also employed in that area, in KwaNdebele and the assurance was given to him that it's taken care or.

Now Madam Chair, with respect, if a Captain in the Security Branch tells that to a Warrant Officer, I would submit that the only reasonable deduction that can be made from that is that illegal operations can be carried out by the police, that you will be taken care of by the system, as he has testified, if in the event the army were to discover you at the scene.

CHAIRPERSON: I think the pointed question to me would not be whether they bona fide believed that they could conduct this operation even if this wasn't a legal one, the question is did they bona fide believe that they could carry out instructions from Captain Hechter.

MR ROSSOUW: Thank you, Madam Chair. We've touched on this aspect in the matter of Piet Ntuli as well.

CHAIRPERSON: I would like you to just limit yourself to that question.

MR ROSSOUW: Thank you, Madam Chair.

CHAIRPERSON: And whether subjectively they thought the action would be directed primarily at a political opponent.

MR ROSSOUW: Madam Chair, as far as the question whether they were in a position to bona fide believe that they can take instructions from Captain Hechter at that stage, I would refer you to the evidence that was led. They were not just part of a criminal investigative unit, Murder and Robbery, they actively worked in close relationship with the Security Branch in unrest related areas and politically related offences. That is the testimony before you, it's uncontested, it stands.

Madam Chair, you further heard the testimony by Mr van Jaarsveld, that there was an arrangement between the head of their unit, reference was made to Brigadier van Wyk, who was their superior at that stage, that their unit, the Special Investigative Unit should pro-actively work in close relationship with the Security Branch. So this, Madam Chair, would mean that it's not something that they've dreamt up here to come and tell you, this is something that was testified to by a senior officer in the Security Branch and there is no evidence to suggest that that was not the case.

But it goes much further than that, Madam Chair, this was the whole point of their operation and this is the point that I would like to stress again. This unit was deployed nationally, it would make no sense to say that they as an Investigative Unit, would go into an unrest politically sensitive area where offences were committed and now conduct an investigation without having the opportunity to make use of the information of the Security Branch, which we know made use of informers on the ground.

This is an investigator coming into an area, would know the area and the only way for them to really do their work properly would be to work in the relationship with the Security Branch, share the information, take instructions from members of the Security Branch.

In that regard I would suggest that they - I would not suggest, I would argue, Madam Chair, that it's not merely a subjective factor of whether they believed that they could take orders, the actual situation was that they did take orders because this would be the function of their unit. How else would they be able to operate in the political unrest areas?

Madam Chair, you've also heard that they reported back to members in the Security Branch. The evidence was that Captain Hechter and Brigadier Cronje were their liaison officers, they reported to them. I would submit to you therefore, that they had reasonable ground, as covered in Section 20(2)(f), to believe that they were acting within the course and scope of their duties and that they were taking instructions from people they were indeed authorised, or they could take instructions from them.

CHAIRPERSON: That's Section 20(2)(b), not (f).

MR ROSSOUW: Madam Chair, Section 20(2)(f) refers to people set out or mentioned in 20(2)(b), but who had reasonable grounds, who believed that they were acting in the course and scope. So I would submit that firstly, the factual position was that this was what was happening on the ground, they did take orders from these people.

Now let's take for instance the question whether they shouldn't have considered, but aren't we, isn't this not part of our duty, to take an order from an officer outside our unit. I can imagine, and this is my submission, that we know that there was an arrangement between the senior officials within these units, that there would a close working relationship.

I would submit that if they were working on the ground in KwaNdebele and they took instructions from the senior personnel in the Security Branch, they reported back to them, that if this was something that the commander of their unit, Brigadier van Wyk did not authorise or impliedly, silently did not authorise, he would have said; you are not working with the Security Branch, you can't take instructions from these people.

CHAIRPERSON: Is there evidence that Brigadier van Wyk was at all material times aware of these operations an of the fact that his members were participating in these operations?

MR ROSSOUW: Madam Chair, apart from the Ntuli matter ...(intervention)

CHAIRPERSON: Yes, with regard to this particular matter, the KwaNdebele matter.

MR ROSSOUW: Yes, with regard to this matter there is no evidence that we could lead on that aspect, but apart from what Captain van Jaarsveld testified, that there was an arrangement between them. Now Madam Chair, maybe ...(intervention)

CHAIRPERSON: Captain van Jaarsveld was also taking instructions from Captain Hechter, he himself was a subordinate.

MR ROSSOUW: Indeed so Madam Chair, but that doesn't affect the fact that he stated that was an arrangement between the senior personnel of these two units. Now there's no evidence that we could have led on this aspect to suggest that Brigadier van Wyk knew about this, but you've heard testimony that the investigators in this matter, Mr Gouws and Mr Oosthuizen, that they shared information with the Security Branch. We know while they were deployed in KwaNdebele, Brigadier van Wyk was also at that camp. This was not in this portion of the evidence, but in the Ntuli matter. He was present there.

In that instance the security personnel were present also when they went to conduct the operation, but Madam Chair, the point is, if you have this agreement that there should be co-operation, that information should be shared, because if there is no sharing of information there can be no effective way for this unit to conduct their specific investigations. So ...(intervention)

CHAIRPERSON: Brigadier Cronje was even present in relation to the Ntuli matter.

MR ROSSOUW: Indeed.

CHAIRPERSON: Who is quite a senior officer.

MR ROSSOUW: Indeed. Madam Chair, therefore my submission is that objectively reasonable ground existed why I can state that Brigadier van Wyk would have been aware of the co-operation between the units. And if he held the opinion that juniors in his unit were not to co-operate or take instructions from members in the Security Branch, he should have told them or he should have said no, you can't take instructions from these people, you're not to liaise with them. And this we know did not happen.

I therefore submit that there can be no question that they held the reasonable belief that they could take instructions from members of the Security Force.

ADV DE JAGER: We've got the dates, we've got dates about the Ntuli one, well if it's correct, the 14th, and it seems as though Mr van Jaarsveld had some system of keeping dates because he could give us exact dates, but we haven't got the exact date of the Ntuli one and in the Ntuli one the date should be easily ascertainable, I mean there should be a, we know there was newspaper reports, a minister has been killed, couldn't somebody assist us in getting the exact date there?

MR POLSEN: Madam Chair, perhaps I can be of assistance. If I remember correctly, Colonel Kendall said that the Ntuli matter took place on the 29th of July of 1986.

ADV DE JAGER: So that would have been after the nine activists.

MR POLSEN: KwaNdebele, as I understand from Captain van Jaarsveld, took place on the 14th of July and the Ntuli matter took place on the 29th of July, if I remember the evidence correctly.

CHAIRPERSON: I think if I recall - this really is a problem and this point has to be established in order to either come to the assistance of Mr Rossouw, will probably be against Mr Rossouw. The Ntuli matter happened later, the KwaNdebele matter happened first. That seems to be the suggestion flowing from the evidence that we have heard in these proceedings and the evidence that we have earlier heard in the proceedings involving Cronje and others.

MR ROSSOUW: Madam Chair, I accept that, we've extensively consulted on this and both the applicants were not sure in their own minds, they couldn't recall this. Now we've told you this. Unfortunately I didn't have time to objectively determine this from outside sources, but I said that.

Madam Chair, what I'm trying to say to you is that I'm not using the argument that because there was a Piet Ntuli first, therefore they accepted that they can now also conduct the KwaNdebele 9, I'm speaking to you, I'm submitting to you with regard to the working relationship that existed between these two units, the fact that there was discussion that there should be co-operation with their senior, as testified by Captain van Jaarsveld.

CHAIRPERSON: But then a pattern then developed as a result of that arrangement, that close co-operation arrangement. Shouldn't that come to your assistance as well?

MR ROSSOUW: In the later incidents I will very, very obviously argue that that also subjectively worked on their minds, but I'm sitting with the first incident.

ADV DE JAGER: I think what's not sort of suggested, but we've got a set of what happened there, a set of things being put together in order to execute this incident on the 14th. Now 14 days later what we sorted suspected here is confirmed by van Wyk seeing his soldiers climbing into the car with Cronje and that's the furthest, I don't think you could take it any further.

MR ROSSOUW: Thank you, Madam Chair, I don't think I can make the point more clear than Commissioner de Jager in that instance. I would therefore submit that they fall within the provisions of the Act, Section 20(2)(f). On the basis - if the Committee were to hold that there was in fact no grounds for them to act in this manner, I submit that they had reasonable grounds to believe that they were acting in the course and scope.

But I think, Madam Chair, maybe on second reflection, that they fall within 20(2)(b) because of this working relationship and which was subsequently confirmed, that Brigadier van Wyk didn't take any steps subsequent, or maybe a fortnight later, when the Piet Ntuli incident occurred.

Madam Chair, I have not, or may I also refer you to the amnesty that was granted to Captain Mentz in this instance. Mentz found himself, I would submit, in the same position as my two applicants and amnesty was granted to him. I ...(intervention)

CHAIRPERSON: If not in a worse position.

MR ROSSOUW: He was in a worse position because he was a Captain if I'm not mistaken. That was his rank.

ADV DE JAGER: I'm aware of the decision of Judge Southwood, that we're not acting according the president system, we're not bound by that.

MR ROSSOUW: I'm not suggesting for one minute that the Committee is bound by anything or its own decisions, Madam Chair, I'm merely pointing to you that this is not something that my client has now come up and dreamt of, this is something that has been dealt with in the past, we've dealt with it as far as my clients had the possible knowledge to place the facts before this Committee, they did this. And I would submit that there is no reason that you cannot be satisfied that Warrant Officer Oosthuizen specifically, was not telling the truth about this incident.

In every material aspect the relationship was confirmed by Captain van Jaarsveld. It's unfortunate that we didn't have the opportunity of having Brigadier Cronje and Captain Mentz and Captain Hechter here in order to canvass it with them. But I submit that there's enough in their evidence to support the submissions that I am making to you, in their evidence, not the finding of the Committee.

We know that this is not an unusual thing for units to co-operate, from the evidence of Captain Mentz, that even Murder and Robbery who was purely concerned with criminal investigations had to co-operate with the Security Branch. And I would submit that in this special unit that the two applicants were in, even more so.

Madam Chair, then may I deal with the question of whether this friendship relationship that they had with Captain Hechter led to a situation where they were on a frolic of their own.

Once again, Madam Chair, I cannot take it I think, more pointedly to state the evidence by Mr Gouws who said that he regarded it as work. They specifically confirmed the evidence given by Minister Vlok in this regard, on how junior policemen saw their role in the total onslaught and how the counter-revolutionary operation was implemented. They've told you that in their minds they had no other means but to eliminate these people, to prevent them from receiving training, coming back and committing acts of terrorism. This Madam Chair, are the factors that will reflect on whether they were just with their buddies out on a killing spree that night. There's no evidence to suggest that and I would submit that you can be satisfied that they were acting under the instructions -I mean, Madam Chair, the evidence of Captain Hechter was:

"Not that I asked them and they said 'I'll do it and I'm so happy that I can go and kill these people'."

He said:

"I ordered, I instructed them to eliminate these people."

So Madam Chair, as far as any suggestion is concerned that they were on a frolic of their own, and the work volunteer in that sense would mean that they were on a killing spree and they were quite happy to go with these people, is unfounded, there's ...(intervention)

CHAIRPERSON: I don't think there was any suggestion that the usage of the word "volunteer" is suggestive of what you are putting to us.

MR ROSSOUW: Madam Chair, I might be over cautious, but I take note of your point in this regard, I will not labour it then further.

Unless there are any further aspects that you wish to hear me on - maybe also on this aspect, they testified that they had no personal gain in this matter, they didn't act in any ill feelings towards the victims and that would also reflect on whether they would have been on a frolic of their own.

CHAIRPERSON: Yes.

MR ROSSOUW: Madam Chair, there is no evidence to suggest otherwise, they've told you in all sincerity.

Lastly, Madam Chair, on the question of whether they made a full disclosure, I would submit that there is nothing to suggest that they did not make a full disclosure, they've testified sincerely, they have not distanced themselves from this incident, they told you what they did, in all material aspects they've placed the facts before you.

The one aspect that was canvassed, who threw the petrol and who set the bodies alight, I think there can be no doubt that the testimony by Mr Gouws is correct, that Captain Hechter threw the petrol over these bodies, that's confirmed by, admittedly that's hearsay evidence, that was confirmed by Mr van Jaarsveld and apart from that aspect I can't remind myself that there was any other aspect that could reflect on whether they are trying to hide anything from you. I submit they made a full disclosure and I would request the Amnesty Committee to consider their amnesty applications favourably.

CHAIRPERSON: Thank you, Mr Rossouw.

MR ROSSOUW: Are there perhaps any further aspects that the Committee wishes me to address you on specifically.

CHAIRPERSON: I think where the Committee had its concerns it has already spoken to you and you've responded to their concerns.

MR ROSSOUW: Thank you, Madam Chair.

MR POLSEN: Madam Chair, before we continue, may I be excused please?

CHAIRPERSON: You may be excused, Mr Polsen. I'm sorry, I should have done that a few minutes ago.

MR POLSEN: Thank you very much.

CHAIRPERSON: Mr van den Berg?

MR MEINTJIES: Chairperson ...

CHAIRPERSON: Oh, Mr Meintjies, I'm sorry, that's because you are sitting on the other side.

MR MEINTJIES: You keep on forgetting about me.

CHAIRPERSON: Yes, I'm sorry.

MR MEINTJIES IN ARGUMENT: On behalf of Mr van Jaarsveld, I very briefly want to submit the following to the Committee. In the first place, I submit that ...(intervention)

CHAIRPERSON: Before you make your submission, can you just give us an indication in respect of which acts Mr van Jaarsveld seeks amnesty?

MR MEINTJIES

Conspiracy to murder;

Murder;

Malicious damage to property;

and any other offence directly connected with/or relating to the incident.

CHAIRPERSON: On what basis would he want amnesty for murder?

MR MEINTJIES: The application as far as murder is concerned, is based on the principle of common purpose. Mr van Jaarsveld did testify expressly that he had a purpose, together with the other applicants, to kill the nine activists ...(intervention)

ADV DE JAGER: Even if he had the purpose and he wilfully, for whatever reason, withdraws, says; I can go, my child is ill, so I'm not continuing, then he's still guilty of the conspiracy, but it's hard to see that he ...(inaudible).

MR MEINTJIES: My submission to the Committee is that even after withdrawing, he aids and abets the actions of the other applicants by allowing them to leave their cars at his house and after the fact, to come and pick it up, the cars up at his house.

ADV DE JAGER: And after it's been reported to him he associated himself with it and didn't report it? So it's an accessory after the fact and because of that guilty of murder. That may be.

CHAIRPERSON: Will that be your argument? Will that be the argument that you will be relying upon?

MR MEINTJIES: That is correct, Chairperson.

CHAIRPERSON: You may proceed with your submission.

MR MEINTJIES: My submission is that the applicant made a full disclosure of all material facts that he knew of. It is quite clear that the incident relates to the conflicts of the past, was associated with a political objective, as testified by the applicant. The applicant acted within the scope of his duties as a member of the Security Branch, Northern Transvaal. He acted upon the instructions of Captain Hechter, which he knew was in line with the blanket instructions given to both himself and Captain Hechter by General Viktor.

CHAIRPERSON: That's where I have a problem, Mr Meintjies. Would you say if instructions, general instructions are given to me by Brigadier Viktor to conduct certain operations, if I don't take an initiative and somebody else does, then I would be acting on somebody else's instruction, when in fact the same instructions were also given to me? From the evidence of Captain van Jaarsveld, both he and Mr Hechter were given these general instructions by Brigadier Viktor, so why should he be acting on the instructions of Captain Hechter when he was in the same situation with regard to the issuing of instructions by Brigadier Viktor as Mr Hechter?

MR MEINTJIES: The evidence of Mr van Jaarsveld was that as far as operational situations were concerned within his branch, he was in fact subject to the orders of Captain Hechter and he did not initiate this specific incident.

CHAIRPERSON: So simply because he didn't initiate, he then considered himself to be acting under instructions from Captain Hechter, even though he was similarly given the same instructions by a superior officer and that's Brigadier Viktor. That's your submission?

MR MEINTJIES: That is correct, Chairperson.

ADV DE JAGER: Hechter gave the instructions without, in this instance, consulting Cronje, his line function superior, but Hechter was involved a month earlier in the Nietverdiendt thing where Cronje was involved in the same kind of operation and Cronje not only, well approved of it, in fact he ordered it. So Hechter one could argue, would have been aware that this kind of operation is approved by his superior and then he took the decision on his own to carry out the same sort of operation.

MR MEINTJIES: I agree with that, Chairperson.

ADV DE JAGER: So whether it was again approval in terms of Viktor's general instruction, we had an instruction by Cronje in the same kind of operation a few weeks before, wouldn't that have influenced Hechter, that this kind of operation is in terms of the policies of the day?

MR MEINTJIES: I am in total agreement with that, Chairperson.

CHAIRPERSON: I think there is no dispute about that, that Hechter acted because of the general instructions from Brigadier Viktor and he believed that he could carry out an operation of this nature consequent to those instructions.

My problem was, the same instructions were equally given to Captain van Jaarsveld, why should he then believe that he can take instructions from Captain Hechter when they were both given the same instruction? But you then responded by saying they belonged to different units and in terms of the line of command in respect of those units, it was required of Captain Hechter in an operation of this nature, to take instructions from Captain Hechter.

MR MEINTJIES: In operational matters, Chairperson.

CHAIRPERSON: Yes.

MR LAX: Could I maybe just put it in a subtly different way? What's puzzling me and maybe what is in the back my head is, we're being faced with a proposition where in order to fall within the parameters of the taking instructions sections we're relying on two lines of command here, mutually, and in a sense what occurs to me is they are in a sense mutually exclusive in a sense, you can't have them both at the same time. Either your client acted on Hechter's instructions, in which case he couldn't have acted on a general instruction, although it may have been in the back of his mind, but he can't rely on it for the purpose of this operation, or he's relying on a general instruction, in which case the evidence has got to back up that he acted on a general instruction and not on a specific order. So that's my difficulty that I have.

MR MEINTJIES: I understand that, Chairperson. My submission to the Committee was that the applicant acted on the instructions of Captain Hechter, which he knew was in line with the general instructions of General Viktor, he did not act upon those general instructions and that was never my submission.

CHAIRPERSON: Because he was, those were operational issues and he was not in command of such operational issues, only Captain Hechter was in command of such operational matters.

MR MEINTJIES: That is correct, Chairperson. That is my argument.

MR ROSSOUW: Madam Chair, sorry to interrupt you, my apologies. I have not told the Committee for which specific acts my clients are applying for amnesty, may I do so? And may I also be allowed to mention one aspect that I've neglected to point out to you? - I'm sorry.

CHAIRPERSON: Can we probably allow Mr van den Berg just to make his submission, then we'll come back to you.

MR ROSSOUW: Madam Chair, can I - just one submission in argument, which he might like to respond to, may I make that?

CHAIRPERSON: Okay.

MR ROSSOUW IN FURTHER ARGUMENT: The point that I wish to point out is that as far as the application of Mr Gouws is concerned, that he was the subordinate of Mr Oosthuizen.

CHAIRPERSON: Yes, I think the evidence has borne that out.

MR ROSSOUW: Yes, I'm just pointing that out to you, thank you, Madam Chair.

CHAIRPERSON: Thank you. Mr van den Berg?

MR VAN DEN BERG IN ARGUMENT: Thank you, Madam Chair.

This is an act in some ways similar to the incident of which we've heard evidence in respect of Nietverdiendt. This is an act later in time to Nietverdiendt, but the modus operandi seems to be fairly similar. We have a group of activists who have been infiltrated by a security policeman, whether he solicited, enticed or recruited them we cannot say. Captain van Jaarsveld's evidence this morning, or sorry, after lunch, I found quite instructive. Whether it's an ex post facto observation or whether that was his observation at the time, I am still confused about. But the fact of the matter is that there was a security policeman involved and directly as a result of his involvement this group of nine people were killed.

Gouws and Oosthuizen say that as far as they were concerned, the considerations of; could we get them to change their minds and so on, it was not something that they considered. At the time that they were approached with the operation, a decision had been made to kill these young people. So insofar as 20(3)(d) is concerned, we're left with the difficult question of what does one make of a situation where there's a possible entrapment concerned?

CHAIRPERSON: Are you submitting that when Oosthuizen and Gouws took instructions they couldn't have thought that the targets that had been identified for elimination by Hechter, were activists in manner described in the evidence?

MR VAN DEN BERG: I didn't understand their evidence to be that that was something that they considered, I understood their evidence along the lines that this particular operation had progressed to a certain point and a decision had been made to eliminate them. So what they had been involved in previously, I don't think that they took that into consideration, I don't think that ...(intervention)

CHAIRPERSON: Is the evidence not that Captain Hechter advised them of what the young activists had been involved in and what they further intended to do in terms of undergoing further military training outside the country?

MR VAN DEN BERG: If I understood correctly, what was conveyed to them was that these youngsters were on the point of leaving the country, that they were going to receive military training and it was before they left that they ought to be killed. Now I'm not so sure that this incident is exactly on par with Nietverdiendt, in terms of the police were then facilitating or shamming that they were, shamming the facilitation of their departure. I haven't seen that evidence anywhere, either in this set of applications or in the Cronje applications. But I'm still left with the question of, is this something that these youngsters would have embarked upon without the intervention of a security policeman.

Insofar as the instructions are concerned, I've heard the evidence that because there were lower ranking officers concerned here and the distinction is made between van Jaarsveld and Hechter in terms of operational and logistical and so on, I still remain unconvinced that, and it's my submission, that there was no specific instruction here, that they were approached by Hechter to say; I'm planning this operation, will you assist me. I don't understand to stand in the ...(intervention)

ADV DE JAGER: Isn't that, if you're approached by a senior officer who says; will you assist me, isn't that sort of giving an order? Suppose a General would approach you as a private in the army and say; would you do this? Isn't that an order?

MR VAN DEN BERG: The difficulty one has, and I know that certainly Gouws and Oosthuizen have gone the route of saying there was all of this evidence by former Minister Vlok, there was all this evidence by General van der Merwe as to the milieu in which we operated, but the fact of the matter is that they were requested to participate in an unlawful act. That is my difficulty. And I think that regardless of what they say, it remains an unlawful act and I still believe that they were entitled to refuse that act. No steps would have been taken ...(intervention)

ADV DE JAGER: I've got no problem with that submission, but if they didn't refuse because they themselves had the political motivation that they thought it should be done, apart from the order, receiving the order, I can refuse, apart from what consequences it may have for them if they would refuse, but they themselves are politically motivated, saying; we agree with this kind of operation. Would that disentitle them to amnesty?

MR VAN DEN BERG: In a sense then we're looking at whether they're not so much in terms of Section 20(2)(b), but rather 20(2)(f) and (d), whether this is something with which they associated themselves. And I have difficulty making submissions in that regard. It seems to me that ...(intervention)

ADV DE JAGER: The trouble is, if you've been on either side you're associating with the objectives of the side, whether it was the liberation side or whether it was the government side, to put it like that, and you're prepared to be on that side and to fight for that side if it comes to it.

MR VAN DEN BERG: The evidence has been that, or certainly the evidence from these applicants has been that there was an instruction ...(intervention)

CHAIRPERSON: I think that's pointedly your problem, that there is reliance greatly on instructions having been given by them and that as junior officers they were in no position to question those instructions.

MR VAN DEN BERG: My difficulty is precisely that and also the fact that whatever the instruction was or the request was, it came down to an illegal or an unlawful act, and I'm not sure that one can then clothe it in a form of an instruction, I would have been more comfortable if they had come here and said; we associated ourselves with this particular thing.

CHAIRPERSON: But haven't they relied on both?

MR VAN DEN BERG: Well they've gone to great lengths to say that they were not on a frolic.

ADV DE JAGER: No, but in their applications that have been confirmed I think both of them said; we were brought up like that, we believed in this, we followed the Nationalist Party's instructions and we believed in their policies, and all that. It wasn't oral evidence here, but it's evidence in the papers.

CHAIRPERSON: More importantly the evidence that really comes closer to their reliance on Section 20(2)(f) is the fact that they knew of this close co-operation that existed between the members of the, the various units within the South African Police.

MR VAN DEN BERG: Madam Chair, I really can't take the argument any further than what I have.

CHAIRPERSON: Yes, I think that being so, I think that you ...(intervention)

MR VAN DEN BERG: If I can then just address you on the question of the proportionality of this thing. They associate themselves without questioning whether it would have been possible to confront these youths, to detain them to deal with them in another fashion. I made this submission in respect of Nietverdiendt, that at that time there was an average of approximately I think - just let me have a look at my note ...(intervention)

CHAIRPERSON: You said 8 000 per day, people were detained.

MR VAN DEN BERG: That is correct, my note says

8 000. That was the average number of people in detention on any particular day. And so that it was possible to have taken those kinds of steps. There were also I suppose further possible illegal steps they could have taken in terms of assaults, coercion which could have been exercised on them. And then we're left with the unpleasant facts of the matter, that they were gunned down and then that their bodies were set alight. Those are my submissions. Insofar as there are discrepancies between ...(intervention)

CHAIRPERSON: Mr van den Berg, you obviously have been part of these proceedings.

MR VAN DEN BERG: Correct.

CHAIRPERSON: And you know what the evidence that we have always been confronted with is that where Mamasela was there was no way they could come up with a prosecution because they were scared that Mamasela would be exposed. That has been the problem that this Committee has been sitting with in relation to taking that route of prosecuting any activist where Mr Mamasela ever had an involvement.

MR VAN DEN BERG: There is of course the incident of Scheepers Morudi who was detained and he was exposed to Mamasela, he was in fact handled by Mamasela. But ja, I really can't take it any further than that. Apart from - there are minor discrepancies, factual discrepancies, but I don't think that they go the same route as my submissions in respect of the Ribeiro's and Nietverdiendt, these are things which can be put down to the passage of time. As to whether it was Hechter or Gouws, I don't think that anything particularly turns on that. As the Committee pleases.

CHAIRPERSON: I think the probability is that Mr Hechter might have made a mistake in his evidence.

MR VAN DEN BERG: Well if we'd been arguing Hechter now I would have said that he'd made steps to distance himself from it, but that's not what we're dealing with now.

CHAIRPERSON: It's neither here nor there.

MR VAN DEN BERG: Correct. As you please, Madam Chair.

CHAIRPERSON: Thank you, Mr van den Berg. Ms Lockhat.

MS LOCKHAT IN ARGUMENT: Chairperson, there's just one issue that does bother me and that's the relationship between their commander, that is Gouws and Oosthuizen's commander Mr van Wyk, in relation to the two of them, whether, as Mr van Jaarsveld had said, there was this close relationship between Cronje and van Wyk. And it seems that van Wyk was left out of the chain here and it seems very unlikely, or why did Oosthuizen and Gouws ask Hechter as to you know, if there are any problems will they be safe in that sense and Hechter said; don't worry everything is taken care of. Were they scared that if they had informed van Wyk about this operation, that he would actually report them, or did they believe they didn't have the necessary authority to actually continue with this operation? That's the only issue that also concerns us.

And then they continue to talk about the code of secrecy and therefore they didn't actually inform van Wyk, but as van Wyk was their commander and was supposedly aware of these operation because of the co-operation between the units, it seems that maybe they were not going to get the authority to actually enter into this illegal action.

CHAIRPERSON: Is it your submission that there hasn't been full disclosure? Your concerns, what are they aimed at, as they aimed at indicating to the Committee that there hasn't been a full disclosure?

MS LOCKHAT: That is correct, Chairperson, and that is my submission.

CHAIRPERSON: Thank you.

MR LAX: Sorry, just to pick up on your point, or maybe you can just check this. Doesn't it go back to the very core of Mr Rossouw's argument, which was that - and this was something I raised in questions and I'm still uncomfortable about it, so I'm going to raise it and maybe Mr Rossouw can just address it one last time at the risk of flogging a dead horse.

What you've just raised, the issue of van Wyk and van Wyk not being told about this thing and in fact not knowing about it at all, you see the issue of co-operation is all very fine, yes, of course an investigative unit must co-operate with the Security Branch, one would expect that, but that's qua investigation, not qua murder, not qua eliminating enemies of the state. And I want to separate out the two levels of co-operation, I want to separate out the two kinds of instruction, because for me they're quite different operations.

One would expect Security Branch people and investigators in unrest matters to work together while they investigate matters of an unrest nature. For that co-operation to then move into another milieu, which is one of elimination and murder and counter-information and so on, that's a different issue and that was my difficulty when I asked why van Wyk hadn't been informed, or whether they had explained it to him.

CHAIRPERSON: Mr Rossouw, I also promised that I will come back to you to enable you to indicate to us in respect of which specific acts your client are seeking amnesty. You may respond in the process of doing that, to Mr Lax's question.

MR ROSSOUW IN FURTHER ARGUMENT: Thank you, Madam Chair. May I then firstly deal with that aspect. Madam Chair, that is the reason why we have throughout referred you to the evidence of Minister Vlok, what is contained in Exhibit G. Whether you can now separate a working relationship with regard to investigations and then committing illegal acts it is pointedly important, Madam Chair, to have a look at what is said in that evidence.

I'm going to refer you now specifically to page 76 in the evidence of Minister Vlok. This is not something that will be agreed ...(intervention)

ADV DE JAGER: Bundle?

MR ROSSOUW: Sorry, Madam Chair, this is in the first day hearing in the Khotso House matter, where Minister Vlok testified.

CHAIRPERSON: That's contained in Exhibit G, isn't it?

MS LOCKHAT: No, Exhibit G just refers to all the documentation which they wish to rely on, Chairperson.

MR ROSSOUW: Madam Chair, I'm sorry, I specifically took this out because I'm arguing it, it's in support of my point. You see, whether you can now say you are an investigative unit, you work with the Security Branch, fine, there is no question that you can co-operate with them to commit illegal acts, Madam Chair it must be seen in the light of what happened in the whole area and the struggle that was going on at that stage. And this is important, that's why I've put to you one should not be an armchair critic ...(intervention)

CHAIRPERSON: No, I note that Exhibit G does make page references, which was what I was trying to establish from you.

MR ROSSOUW: Thank you. But specifically, may I read to the Committee what is said on page 76 of that part of Minister Vlok's testimony? He firstly - and if you read it from the pages that I've put out in Exhibit G, you'll see he deals with the onslaught, the counter-revolutionary strategy, which is something that was known throughout the Police Force. I mean these people knew they were fighting a war, they knew there were acts of terrorism being committed, they knew about MK, they knew this. Madam Chair, now I've asked them to confirm this, that they knew about this and that their applications must be read against the background of this testimony.

Then the conclusion that Minister Vlok comes to is this:

"With all these elements in place and the explosive situation which reigned for a long time within this country, the possibility was created for irregular acts by loyal and patriotic members of the Security Forces."

So Madam Chair, this is not a situation where you can simply say two units are co-operating to do an investigation. The Security Branch for instance was never - I mean nobody is going to come and admit that the Security Branch had as part of its duties to commit illegal acts, they were there to gather information on activists and from other sources, but we know that the Security Branch established the thing called Vlakplaas, we know that there were murders committed by the Security Police, why does it follow now that they can make that jump from their investigative function to commit illegal acts? Madam Chair, with respect, one must see it in the light of the war that was being waged.

This Committee has found in the Cronje decision, that there was a bona fide guerrilla warfare continuing in this country. Now how is a patriotic loyal South African policeman going to interpret the statements by a policemen, a senior policeman, by politicians? We know that in the Cronje matter reference was made to Minister, or Prime Minister P W Botha publicly stating that we should fight back against the enemy.

Madam Chair, I would submit therefore that it is what it came down to in Wouter Mentz' testimony. He said yes, - I haven't got the page number with me, I'm sorry, but he said yes, it was my duty at Murder and Robbery to investigate murders and so forth and so forth, but he said, it was also my duty to combat terrorism, ipso facto to the two applicants now. This is what they told. I specifically referred them to that passage and asked them to confirm it.

Madam Chair, Minister Vlok continues:

"They did not need a command, the terrorist in their hands was a member of a well identified enemy which made war against innocent woman and children."

And then on page 77:

"Chairperson, therefore, me as a moral and political leader, I accept responsibility for acts which we did, which happened, and I accept responsibility. We must take moral and political responsibility for what happened."

So Madam Chair, with the greatest of respect, one cannot focus squarely on the relationship between these two people, between these two units, sorry, and the functions that they had and whether it also included a function to now go and eliminate people. One must see it in the light of this testimony. I see that it's a problem for the Committee. I deal with this specifically to tell you that these applicants were taken to this testimony, they were referred to it so as to tell you why they could make that jump from saying; this is our function, but we can also commit an illegal act. And Madam Chair, I can't take it any further than what is said in that testimony by Minister Vlok.

CHAIRPERSON: Would the reference that was made to the evidence led in the Armed Forces Hearing be of any assistance to you?

MR ROSSOUW: Madam Chair, I must confess, I didn't read all of that, I was also not part of the Armed Forces Hearing.

CHAIRPERSON: You haven't gone through the evidence?

MR ROSSOUW: No. Madam Chair, the problem is ...(intervention)

CHAIRPERSON: At least you were here and you were here when Mr Grobler took us through the relevant sections or portions of the evidence tendered by General Geldenhuys with regard to for instance, the Joubert Plan.

MR ROSSOUW: Madam Chair, I'm not sure whether - well let me say, what I can submit in that regard to you is that we know that there was a war waging in this country, we know to such an extent that the function of the South African Police was changed to combat an internal war. This was something that you would expect the military to do when there is a war situation going on. It boiled down to a point where there was such close co-operation between Special Forces and the military and the South African Police, which I submit supports my point.

The reason why we can't argue this on a subjective level is because the two applicants were such junior members of the Security Force, of the police, they didn't know about any Joubert Plan. Objectively, I would submit to you yes, we know that there was a Joubert Plan in respect of other operations, similar to the Nietverdiendt 10, but we know further that after it came to - I don't know if it came to the knowledge of General Geldenhuys, I don't want to implicate anybody here, but we know that there was thereafter a procedure prescribed for this.

Now Madam Chair, to say that if you have a procedure to go and kill people, by top people in the military and the police, to say that two policemen on the ground such as a Warrant Officer and a Sergeant should be denied amnesty because they could never in their lives have figured that they can make this jump from investigating to committing an illegal act would ...(intervention)

CHAIRPERSON: We are now happy, Mr Rossouw, I think. We are satisfied with your submission, you don't need to elaborate further. Can you therefore come back to the issue of which acts you seek amnesty for both Mr Gouws and Mr Oosthuizen?

MR ROSSOUW: Thank you, Madam Chair. The specific acts that we are applying for amnesty is

Murder;

Arson;

Malicious damage to property;

and desecration of the bodies of the deceased.

Madam Chair, I'm not going to ask for conspiracy to commit murder because they received an instruction, they didn't plan this. I am going to ask for conspiracy to commit the other offences, because ...(intervention)

ADV DE JAGER: If there is a conspiracy and once you have committed the offence itself, could there ever be - suppose two people are charged for murder, ordinary criminal things, would you charge them for the conspiracy to murder and also for the murder? Wouldn't that be a splitting of charges?

MR ROSSOUW: Yes, Madam Chair, I would submit that would be the case. You have to ...(intervention)

ADV DE JAGER: Once it's carried out the conspiracy sort of falls away and is included in the act.

MR ROSSOUW: Thank you, Commissioner de Jager, for pointing that out. Those are the acts that we are then applying for.

CHAIRPERSON: Well this brings us to the close of our proceedings in relation to the KwaNdebele matter, does it not, Ms Lockhat?

MS LOCKHAT: That is indeed correct, Chairperson.

CHAIRPERSON: This Committee will adjourn until tomorrow morning at nine thirty.

MR ROSSOUW: Sorry, I'm sorry, may I have the last word?

CHAIRPERSON: The proceedings have closed.

MR ROSSOUW: Thank you, I'm very glad. Madam Chair, I have no further applicants in this matter, may I be excused from tomorrow's proceedings?

CHAIRPERSON: You are excused, Mr Rossouw. We thank you for having assisted us.

MR ROSSOUW: Thank you, Madam Chair.

CHAIRPERSON: May we also express our gratitude to all the legal representatives who were involved in this matter, for the assistance that they've rendered to this Committee. We know lawyers are by virtue of their profession, a pain, but I've always maintained that they are a necessary pain. In this case they really have been a welcomed pain in that they have assisted us and we hope that this will enable us to come to a just and equitable decision when we consider these applications. I thank you all.

May we also express our gratitude through Mr van den Berg to the relatives of the deceased for having attended these hearings. We hope such hearings will go a long way in facilitating the healing that we know they greatly need. Thank you very much.

MS LOCKHAT: Please stand.

COMMITTEE ADJOURNS