ON RESUMPTION
CHAIRMAN: Gentlemen, I have prepared some notes that I had made with regard to our visit to Vlakplaas on Tuesday. I'm just getting a reminder of one of the figures that I have forgotten. I thought I would read it out and then invite you, if you had any comments to make, to make them and I include in this whether Mr de Kock has any comments because I refer to what he told us and showed us. I think this may be helpful for our own recollection, but also, my intention is to make it available to other hearings who might not want to go to see Vlakplaas, but who might want to hear something of what it is.
I shall refer to the property as Vlakplaas, although it became clear on our visit there, that it is merely one of the sub-divisions of the farm Vlakplaas. It lies to the South East of Pretoria in the Erasmia area and is situated in a farming district. To reach Vlakplaas one travels approximately 10 kilometres along a dirt road and arrives at the property which is situated alongside a river. There are hills to three sides of the property, overlooking the property, which is, I am told, some 99 hectares in extent. Part of this Vlakplaas extends over one of the hills.
The property leads off the dirt road through a gate which can be locked and we were informed by Mr de Kock that when the property was in use there was an armed guard at the gate and that the guard now working in the district, the area of the gate was also armed. One travels along the driveway through another gate to reach the old farmhouse which is situated among a number of trees.
We visited the farmhouse. I regret I didn't draw a plan detailing the number of rooms, but there are a number of rooms and a stoep which leads onto the driveway. Mr de Kock pointed out three of the rooms to us which had been fitted out with metal doors, which were used to store arms and ammunition which had been obtained from various sources. We were also informed that there had previously been two metal containers situated across the driveway in front of the house. They had been used for the same purpose. Other rooms in the house were used for office purposes for people carrying out their official duties and there was an end room which, as I recollect, was used as a gymnasium. There must have been some sleeping arrangement in the house, which I don't recollect seeing, in light of the fact that Nofomela said that he slept in the main house when he first arrived there. It may of course mean that some temporary sleeping arrangement was made in one of the rooms used for other purposes. Behind the house there was a large covered braai area and it was obvious from our inspection that it could cater for a great many guests. Adjoining this there was a large room, which we were told by one of the members present, had been used as a bar, but the bar has now been removed as have the counter's shelves behind it, which had been used to stock the bar supplies. There were still a number of comfortable looking easy-chairs and couches in the room and it is clear it must have been a pleasant relaxation area for those people at Vlakplaas.
Outside and away from the old main house there were a number of concrete slabs and we were told that they had been used for the buildings in the past, these buildings being used for various purposes. One, in the same area as the bar room, had been further office space where a great deal of paperwork had been done. In the vicinity of that now non-existent room there was an accommodation building still standing which appeared to comprise five separate rooms, each with their own entrance. Further along there were other slabs which had been used for accommodation purposes with prefab buildings erected on them. There were others which had been the scene of showers and toilet facilities and matters of that nature. Below them and in the vicinity of the showers, there was a large garage which had four doors and this was used for vehicles whose identity was to be kept secret. We were also informed by Mr de Kock that there was further parking behind the garage under the trees where cars would not be seen from the road or from helicopters or aircraft flying overhead.
Mr de Kock pointed out an open area of the ground above the house which he told us had been used as a helicopter landing area, because it had a dummy fence around it to create the impression it was used for sporting facilities, but this fence was pulled down when it was to be used for helicopters. There were further plans underway to build a landing strip higher up on the property, but this has not been done.
Some distance away from the road, on the far side of the old farmhouse, there was a shooting range, which was in the vicinity of a dam situation, there below the hill which I've referred to.
When I left the property on my return to Pretoria, I noticed two other shooting ranges in the vicinity. One of them was a fairly large looking one on the left which appeared to have been used for military purposes. I mention this because it seems to indicate that neighbours would not have been too surprised to hear the sound of shots in the area. Mr de Kock told us that there were complaints made from neighbours, including the neighbour occupying the house overlooking the hill, she was an elderly lady. These complaints were made with reference to noise, drunkenness, pointing of firearms and similar behaviour. We were told that in most cases they were able to cover up the complaint but in some of the cases one or other of the generals had to visit to make peace.
Many people were situated at Vlakplaas and there were sometimes, and here my memory is a little uncertain, more than 150 people there. This does not include casual visitors. It appears that they were all made to feel members of the community. Mr de Kock told us that he caused a vote to be taken as to whether the bar facilities should be made available to the Askaris who were stationed there. This was not approved by a majority vote, so then Mr de Kock decided, as he told me in a somewhat sarcastic manner, to use the democratic method and he gave an order that they should be allowed to.
Mr de Kock pointed out to us the grave of Ngqulunga which was at the top of the hill and explained that he had been buried there to ensure that his body would not be tampered with or burned.
The impression that we got from our visit there and this is an impression some years after Vlakplaas stopped being used for police purposes, was that it must have been a very private and self-contained community. It is not very visible from the road and it is certainly not visible when one is a kilometre or two away, except from the houses situated in the hills above it. Mr de Kock told us that the public was not allowed in, nor were ordinary members of the uniform police force. It appeared that special arrangements had to be made to visit Vlakplaas.
We are certainly satisfied that it gave no impression to an outsider of being a police station. There were no signs and there were none of the normal facilities that one finds at a police station such as a charge office at the entrance, cells and matters of that nature. It was, we were told, not described to members of the community as a police station, but they were told that it was an agricultural project.
We mention all this because we feel that if we have some information as to the background against which these people worked, it will give us a better chance to assess their evidence correctly and to appreciate the manner in which they carried out their duties and what they were expected to do by the people who had established Vlakplaas as an entity.
If any of you have anything you think should be added to that, could you please say so?
MR HATTINGH: Mr Chairman, I would like to place something on record but I would just like to ascertain the correct facts from Mr de Kock if I may. Thank you Mr Chairman. Just one aspect being the room where Mr Nofomela slept in, that was one of the rooms situated on the front stoep. I think you may have observed it from outside but I don't, I'm told, I didn't go into those rooms with you, but I'm told by Mr de Kock that you didn't see it when you went into the house, you didn't go onto the front stoep from inside the house.
CHAIRMAN: What I would also put on record perhaps is that when I went onto the front stoep to look, I went there looking for the other room in which arms and ammunition had been kept.
MR HATTINGH: On the opposite side of that there was another room, yes, Mr Chairman. Then just one further aspect as far as I am concerned Mr Chairman, the one concrete slab near the bar or the recreation facilities, that was put down and there was a prefab building erected on that specifically to investigate the Vula operation. It had nothing to do with the Vlakplaas activities as such, but Vlakplaas was used for that purpose. That building was erected there and it was fitted out with a large number of computers to investigate the Vula operation and later on, I am instructed Mr Chairman, that same room and the facilities in the room were used to investigate certain right-wing activities. Thank you Mr Chairman, that's all from our side.
MR VISSER: Mr Chairman, we have nothing to add, thank you.
MS PATEL: Honourable Chairperson, I'm not sure if you mentioned that Mr de Kock had in fact pointed out the area in which Japie Maponya had been interrogated?
CHAIRMAN: No, I didn't. I think that should perhaps be added, that he pointed out, not directly I think, it was down near the dam, wasn't it?
MR HATTINGH: Correct Mr Chairman, it was at the dam actually.
CHAIRMAN: We were told where he had been interrogated and where that was situated. Right we can now proceed. Does anybody wish to lead any further evidence? I can see Mr Wagener looking anxiously at his watch, he may have something else he wishes to do today. No evidence. Argument?
MS PATEL: Honourable Chairperson, before my learned colleague proceeds, I have been requested by Mr du Plessis on behalf of Cronje to place on record that he has no submissions to make. Thank you.
MR HATTINGH: Subject to your approval, Mr Chairman, we agreed that we would argue in the same sequence as the evidence was led. Mr Visser will go first.
MR VISSER: Yes, Mr Chairman, I was informed on Tuesday that I'm under starting orders by my learned colleagues and I was further instructed to see to it that my argument is such that they don't have to say anything after I'm finished.
CHAIRMAN: I trust you've got it in writing so you can just hand it in and we can all go home.
MR VISSER: Chairperson, in fact I did yesterday draw up a written argument which I finished only this morning at about 5 past 9. I was only able to print out two copies to be in time for the start, commencement of the proceedings here this morning. I would certainly have preferred if we could have all had copies because that would make life much easier. It is 43 pages, Chairperson, much of which I must say immediately, has become rhetoric, as you will appreciate. Chairperson we did not ask Ms Patel whether she would be prepared to make it, the result of that is that we haven't got copies to hand to you. I would therefore have to go through the notes, Chairperson, but what we can do ...(intervention)
CHAIRMAN: How long would it take to make available copies?
MS PATEL: It shouldn't take too long Honourable Chairperson, 10 minutes.
CHAIRMAN: 10 minutes?
MS PATEL: 10 - 15 minutes.
MR VISSER: Well it would save a great deal of time.
CHAIRMAN: Well it will save more than that time and I think we'll take an adjournment and get started with it.
MR VISSER: Thank you Chairperson.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRMAN: On behalf of myself, my colleagues, and I'm sure everybody else here, we would like to thank Mr Visser for having prepared the submissions and those who have just rushed around duplicating them for all of us, thank you.
MR VISSER IN ARGUMENT: Thank you Mr Chairman, that was gracious of you. Chairperson, yes, it will assist greatly in conserving time so that we can all go and look at the cricket.
Chairperson, before I commence with the written argument, may I be allowed to say this? I am on record as appearing for a number of persons that have been implicated in various ways by Mr de Kock. You have heard the evidence of Brig Schoon in regard to the aspects in which he was implicated. We have put statements to Mr de Kock in cross-examination regarding the other persons, Chairperson. We do not intend to argue any further about this, save to say that in line with the ruling which was made in February 1997 by the original Amnesty Committee, it is clear in our submission that this is not the forum where issues of that nature should be investigated in the finest of detail and that is also the reason why the ruling meant, and was intended to mean, that no full cross-examination would be allowed in regard to matters of implication of persons.
We say, Mr Chairman, that we have noted that in line with that ruling, none of the Amnesty Committees have ever made a finding, as far as we are aware, against an implication, save where it was necessary in order to decide the merits of a particular application for it. We say, Mr Chairman, that in regard to those people implicated, a finding on the correctness or the truthfulness of that implication is unnecessary for you to make a finding in the present case.
CHAIRMAN: Well, subject of course to anything anybody has to say, this does not appear to be a case where there is a dispute that this was carried out in consequence of an order. They did what they were told to do and there's no question of having to decide precisely who said what or where. I think that you can rest assured about that.
MR VISSER: Thank you Chairperson and as you say, and we make the submission in the written heads as well, each application obviously has to be dealt with on its own facts and as far as the facts of this particular incident is concerned, there are no disputes of fact before you.
Chairperson, I appear for Brig Schoon. His application is at page 22 to 34 in the Neander Volume, he has also handed up to you his written evidence, which he followed in his evidence given orally before you. He incorporated that which is set out at page 2, Chairperson, and if I may come to paragraph 7, would you allow me just a remark or two in regard to the amnesty decisions handed down by the original Amnesty Committee in the cases of Mr Jack Cronje and others?
Mr Chairman, we know that stare decisis plays no role in a forum such as a commission of inquiry, and nor will I argue that it does, but having regard to the requirement of our Constitution for fair administrative justice, we say Mr Chairman, that even though decisions, particularly decisions of the original Amnesty Committee regarding general background, may not be binding on this committee on the basis of stare decisis. We say, Chairperson, that it would be grossly unreasonable if this Committee would not pay due regard and at least consider those decisions seriously, Chairperson, and although not perhaps of binding effect, then at least of persuasive effect. I mention this, Chairperson, because we have had this issue arise before another committee which was apparently not prepared to accept any form of persuasive effect of the previous decisions. We trust, Chairperson, that you will take a different route. That is also the reason why much of what we have said in the written argument is rhetorical and it really is a repetition of what you have heard time and time again for the past two years and therefore, Chairperson, as I said before, it will help a lot if we can all follow through the written argument because that will allow me to go quicker.
Chairperson, page 3, dealing with the application and subject to what you, Mr Chairman, put to me, these are the possible offences which come up in the present application. Mr Schoon did not go to Swaziland, therefore his application does not contain any application for amnesty in regard to crossing the border illegally and using the illegal weapons, such as they were, etc., but that would clearly apply to the other applicants who in fact did so. Of course, Chairperson, in case one forgets something, we say at page 4, we ask you, the Committee, to consider amnesty to be granted for any offence or delict which may be supported on the facts of this particular case.
Chairperson, going on to the personal background and circumstances. Exhibit A was an attempt to set out the general background in consonance with the findings of the original Amnesty Committee in this decision of Mr Jack Cronje of which you are well aware. We quote, Chairperson, paragraph 11, "almost all policemen giving evidence before the Amnesty Committee referred to their background" and then leaving out some words, " almost all policemen appearing before us, joined the police force after the National Party became the government of South Africa in 1948 and implemented the apartheid policy. They were brought up under this doctrine which was supported by schools and all the Afrikaans churches. There was rarely any voice, in the circles they moved in, condemning the policy. On the contrary, the churches proclaimed the policy to be in accordance with the Scriptures and even acted against preachers like the Rev Beyers Naude who spoke out against it.
As policemen they were indoctrinated to defend the policy and the government of the day, even with their lives, should it be necessary. They accepted the legally enforced environment as the accepted and acceptable social structure of the country." Chairperson that quotation, in our submission, is extremely important because it really deals with issues which arise in section 22(b) and specifically the words, " acted within the course of their duties and/or within the scope of their express or implied authority."
CHAIRMAN: But haven't you got an even stronger case here Mr Visser? Is not the evidence before us that this group was actively engaged in active war in the province of Natal?
MR VISSER: Yes.
CHAIRMAN: This isn't merely political activists nowadays, these are people who, on the evidence led, which has not been contested, were engaged in killings and acts of violence.
MR VISSER: Yes.
CHAIRMAN: Which is a policeman's function to stop.
MR VISSER: Absolutely, Chairperson, the only aspect here is that it was done in Swaziland, but we know why that happened.
Chairperson, as far as the conflict of the past is concerned, I placed it on record at page 5. We referred to the amnesty decision of the original Amnesty Committee in Jack Cronje's case, pages 1 to 4, where it was adequately summed up. We don't need to go through this again Chairperson, we know that what the declared objectives of the ANC SACP were, over to page 6, and that the goal was to involve the entire nation in the struggle.
As the war unfolded, we say in paragraph 20, Chairperson, members of the South African Police in particular, experienced an ever increasing departure from their normal duties of conventional policing. It became expected of policemen and women to act as soldiers in the conventional war situation, without the benefit of martial law, and you will remember in exhibit B 46, Gen. van der Merwe made that point. Chairperson, this we say, is in consonance with the evidence presented to the Gross Violations Committee, Human Rights Committee, and we give you the references to that on page 7 over to page 8.
Chairperson, and what then happened was what we say in paragraph 23. In this situation, what would otherwise clearly be regarded as illegal, acquired a legitimacy and legality in the minds of members of the security forces. In addition, in a few instances which have come and may in future come before the Amnesty Committee, certain members of the security forces looked up to their commanders and leaders for direction and, as it now appears, some of them read instructions or approvals into words and conduct of such commanders and leaders, which were not necessarily intended. We refer to what Mr Vlok said on page 104, Chairman, in the State Security Council Hearings of the Human Rights Violations Committee, " from information which has now been made available, it appears that there are possibly matters in which I became unconsciously involved, or for which I must take co-responsibility indirectly, and I am referring here to the illegal acts committed by certain policemen, who committed certain acts based on certain reasonable presumptions seen from their perspectives, of what I said and did."
We know that one of the goals of the ANC SACP Alliance was to make the country ungovernable, Chairperson. We talk about the identification of what the ANC termed legitimate targets in paragraph 25, the creation of no-go areas, in paragraph 26, and their attacks on government infrastructural targets during the sabotage phase in paragraph 27, which later became directed at persons, Chairperson, paragraphs 28 and 29. Then at page 10, Chairperson, we deal with the perspective of the previous government, whose professed aim was to counter that revolutionary onslaught and that involved the security forces who considered it their duty to fight against such actions, programmes and initiatives which were aimed at achieving the stated objectives and the Amnesty Committee again, Chairperson, gave recognition to that fact in the amnesty decision of Mr Jack Cronje.
Chairperson, something which may slip one's mind from time to time is the importance which the threat of the "Rooigevaar" held for most South Africans, and we deal with that in paragraph 34 and I give you a quotation from Mr Vlok's evidence in the Khotsohuis and Cosatuhuis amnesty application. I don't intend to read it.
Although, Chairperson, it is probably fair to state that during the initial stages of the conflict, the strategy of the South African Government and the security forces was from a point of view of defence, of countering. This later turned, Chairperson, as you are well aware from evidence given before this Committee, to proactive action as well. Very importantly, Chairperson, in judging whether policemen bona fide believed that what they did was within their authority, is at paragraph 36 where we say that from the early 1980's the rhetoric in most newspapers and on television dealt with the revolutionary onslaught and the government's efforts to counter it. The government instituted, expanded and controlled a vast network of security structures, in order to counter the revolutionary onslaught. Operational structures were created and developed, where both overt and covert operations were considered, planned and launched. These operations included intelligence gathering as well as actions aimed at utilising the intelligence concerned. These type of operations sometimes comprised hot pursuit and/or cross border operations and particularly preventative action, which were directed at neutralising the revolutionary onslaught aimed at trained terrorists, their fellow travellers, bases, underground structures, logistical support and material infrastructures as well as training and accommodation facilities.
Chairperson, paragraph 39 speaks for itself. The logical instrument, Chairperson, we say in paragraph 40, for the previous government to have used to counter the revolution, consisted of the defence force and the South African Police and as was recognised in the decision of Mr Jack Cronje by the Amnesty Committee, it is important to note that the S A D F had a restricted role to play because of its very definition of what it is there for. Gen Coetzee gave that evidence in the London Bomb record at page 21. This all boiled down to the police and in particular the security police, bearing the brunt of countering the revolutionary attack and as we say in paragraph 44, the 1912 Police Act became amended to include maintenance of internal security as a function of the police and that brought them foursquare within the area of the political war, where they became the strong arm of the government.
Chairperson, we conclude at page 14 paragraph 47. Policemen and women were consequently firmly under the impression that all action launched against the enemy from within those structures which we referred to, were bona fide of nature justified and properly authorised.
We deal with the general perspective of policemen during the struggle, Chairperson, and we say that the fact that the political struggle also involved the killing and maiming of citizens and the destruction of property, served to inspire the police to do their utmost to curb that violence by hitting at the source thereof, the members and supporters of the liberation movements and that is particularly, we say Chairperson, applicable to the present case, the point which you made earlier. " The resolve of policemen and women to fight the liberation movements could only have been strengthened by the fact that they themselves became legitimate targets." So too was their resolve fortified by incidents such as car bombs, limpet mines and the like, which killed and maimed civilians in public places. We know that it was a war situation, Chairperson, and the police were expected to counter an attack which ranged from a military conflict, in the form of a guerrilla war in Namibia and Zimbabwe, to acts of terror and mass action in the R S A and no better example could be found than Mr de Kock himself. We say, Chairperson, these factors resulted in the necessity, at page 15, for the S A P to adapt their traditional culture in regard to training and work definition, to suite the circumstances of their changed working environment in the political war. Gen. van der Merwe said in exhibit B 46, "members of the South African Police were applied in all terrains and the training and application of the police was amended. This necessarily caused a change in the culture that was formed previously, the basis of training and policing. The principle of minimum violence and that the police action was always aimed at it, to bring the accused to court, had necessarily to be supplemented by the conventions of martial law. As supporters of the National Party and the government of the day, the S A P policemen and women were compelled to execute commands and themselves to issue commands which were directed at the enemy in order to counter and stop the onslaught, to maintain internal security and to preserve the status quo.
Chairperson, certainly low ranking officers often did not know where orders originated from. Due to their complete subservience and because of the need-to-know principle, which was strictly applied, it would also not have occurred to them to ask questions about it. This is a point you made in an earlier application, I remember, Mr Chairman. Their blind allegiance would not have allowed them to question orders. When asked how he considered an order to act illegally, Gen. Marthinus Strydom, in an amnesty application concerning the death of M K George and M K Brown said," I would have swum to Russia to execute the order", which is an indication of how policemen saw their duties. Chairperson, it follows that there was seldom any reporting done to higher ranking officers. This was particularly the case where lower ranking policemen took the initiative themselves because of the conviction that it was expected of them so to act. By giving orders and obeying them, policemen and women did what they believed to be their duty in combating the revolutionary onslaught.
Chairperson, we have gone through the existing security legislation before. Gen. van der Merwe says it was not possible to contain this whole situation through security legislation. On ground roots level, should read grass roots level, the people became aware of the situation and they decided that, against this background, and where these words, that is the use of phrases such as" eliminate" etc., also played a role on other factors, to be able to contain the situation, other methods and actions had to be used and that's why we used hard, harsher actions.
Paragraph 58 speaks for itself, Chairperson.
Then something about pressure being exerted upon members of the police. You have again heard of that during the present hearing. We say, Chairperson, as the revolutionary struggle became more intense, pressure from politicians and commanders became more intense. Policemen were constantly brought under the impression of the seriousness of the situation and were pressured to normalise the situation at all costs. Few of us will easily forget the prolific number of speeches, remarks, news flashes, news reports and the like by politicians pacifying the public with information of successes of the security forces and promises to wipe out terrorists wherever they may be found. The frequent use of expressions such as "eliminate", "take out", "remove from society" and suchlike served to create a war psychosis and an assumption of the legitimacy of action by the security forces, against the liberation movements and their supporters, in the minds of not only the security forces, but we say, indeed, the general public. Special lectures, courses and seminars were held during which policemen were briefed on the extent of the onslaught and on what was expected of them to counter it. All of this, we submit, Chairperson, instilled in the minds of the policemen appearing before you as applicants, and especially those of the security branch, the seriousness of the situation and the need to act. In the process members of the security forces cannot be blamed for believing that their actions and omissions, committed to counter the revolutionary onslaught, were authorised, expected of them and fell within their express or implied authority as policemen. We refer to what the amnesty decision in Brig. Cronje's case says at page 223. "On the other hand the police were pressured to maintain law and order, to deal with terrorists and to guarantee the safety of ordinary citizens against incidents such as the Church Street bomb, the Magoo's Bar bomb, the St James Church Massacre, the murder of farmers and hundreds of other incidents of terrorism and killings. This pressure did not only come from politicians, but also from the business sector, farmers and ordinary citizens. Words such as "eliminate them", "take them out", "pursue them", "pay them back in their own coin", "betaal hulle terug in eie munt", "do to them what they are doing to you", were used, according to the evidence of a number of applicants.
They understood this to be authorisation to use bombs and hand grenades and, in some instances, to eliminate or kill certain people, if I may interject, as you have in the present application before you. The fact that incidents did occur which must have been authorised by officers in higher command or in some instances, were authorised or condoned by politicians, like the bombing of Cosatu House and Khotso House, led to a growing perception that the deeds met with the approval of the government. In certain instances members of the security forces were decorated for their actions in combating the total onslaught. In the end the conflict ended in a vicious circle. A gruesome attack would lead to gruesome counter measures, which would in turn lead to even more gruesome acts of revenge. This, unfortunately, forms part of our history and the conflicts of the past.
Chairperson, this question of being brought under the impression that it was expected of the security police to normalise the situation, we also refer to the evidence of Mr Vlok who said, inter alia, "I also want to talk about pressure. I would like to give you my perception of this. Langenhoven said in his ‘Skaduwees van Nazaret'" and I am only reading the last bit of that "in one way or another you must maintain authority. Rome does not expect explanations from you for we believe it should read, a number of years, we enforced a lot of pressure on the security forces to succeed and to fight the enemy in South Africa. Me, as a responsible minister, and all those who preceded me, the State Security Council, the Cabinet, the head of the country, as well as individual ministers, expected of the security forces to control the security problems within the country and to be successful." Needless to say, the security forces during these years were very efficient and he says that's what brought in voters. He continues to say that is why the whole spirit and atmosphere within the government, the State Security Council, other cabinet committees, as well as the cabinet, were always directed towards success. Everybody was always happy about successes against revolutionaries and terrorists. With respect, Chairperson, that adequately sums up the situation as we ourselves have looked through it during the conflict of the past. In the same vein, Gen. van der Merwe in exhibit B46 paragraph 6 at page 5.
Chairperson, if we may turn the page. We deal furthermore with the issues of pressures and how it developed into a grey area in the minds of policemen and we refer to the Cronje record, page 307, Gen. van der Merwe's observations in that regard. Chairperson, we say, in the circumstances it cannot be argued that policemen and women acted for personal gain or from personal vengeance, they merely acted in the way in which they believe was expected of them. Mr Vlok said in the Cosatu House record, pages 78 to 83, "even if it was misguided, these people" and he refers to the members of the security forces," did it for us", and he refers to the politicians, "and for the country, therefore we cannot now distance ourselves from these people who did everything. Their careers, their families, their friends, they sacrificed all of this for the country. In the execution of certain commands, offences and irregular acts were committed by members of the security forces. With regard to instances we are dealing with now, I want to say, with all respect, that all the members acted in a command sense and they only did what was part of their duties. Chairperson, in their eagerness to stop the plans of the enemy and to protect the government, offences were committed by the security forces. It was not done out of malice, or for own benefit, but it was an honest and genuine attempt to act in the interests of our country and the government and the public.
Chairperson, paragraph 71 speaks for itself, as does paragraph 72. Paragraph 73 is repetitive, as is paragraph 74. If I may come then, Chairperson, with your leave, to page 22 where we deal with the present application. We say, Chairperson, we refer to the evidence of Brig. Schoon where he said that Brig. Cronje spoke to him about the threat posed by the activities of Zweli Nyanda in Swaziland. He proposed that a plan be devised to eliminate him. Schoon agreed with Cronje and they went to confer with Gen. Steenkamp, then the head of the security branch. The latter also agreed to the plan to eliminate Nyanda. The circumstances and facts taken into account were that Nyanda was at the time the commander of the so-called Natal Machinery Urban and we give the reference, Chairperson, that is the ANC Further Submissions of May 1997 page 43. In that capacity, he was at the head of planning and execution of acts of terror affecting the lives and property of the citizens of the country and causing anarchy and ungovernability in the country, that is according to the ANC Further Submissions, page 78 to 80. There reference is made, you will recall, Chairperson, I referred to this, Further Submissions during the evidence, where a list is set out of acts of violence carried out by the ANC during 1980 which is quite a long list. 1983, we say, saw an escalation of violence and terror in the country. This was in tandem with the decision taken by the ANC SACP Alliance. We refer now to the ANC submissions to the TRC dated August 1996 at page 50, where it was stated, "in mid 1983 military headquarters produced a discussion document planning for people's war", we leave out some words," among the conclusions were that the ANC should continue carrying out and even escalating those actions which had played an important role in stimulating political activity, mass resistance and mass organisation, but that there should be more concentration on destroying enemy personnel. The concept of potential future guerrilla zones inside the country was raised." And we refer also to the Further Submissions by the ANC dated May 1997 at pages 64 to 66. Chairperson, why we mention this is that, clearly this forms the backdrop of not only the discussions between Cronje, Schoon and Steenkamp, but also the backdrop to the execution of this whole plan to assassinate Mr Nyanda. We say, Chairperson, serious incidents of violence included the Church Street bomb, that was in May 1983, a few months, but a few months before November 1983, when this incident occurred.
Paragraph 80 Chairperson we say that although, Mr Schoon's testimony is that, although Mr Nyanda was particularly discussed, he says the discussion went wider insofar as it had to be seen against the background of the general situation of violence in the country. Schoon told this Committee that his mind was directed to the wider picture, that of the MK cell in Swaziland which was responsible for the violence. Well, I should have added in Natal. According to Schoon, Steenkamp, Cronje and himself understood and agreed that the operation would be directed against Mr Nyanda in the first place, but equally as much against any other MK member who was part of the revolutionary onslaught. It was for that reason that Cronje was instructed to find out where the house was which was used by Nyanda. The intention was to eliminate the cell. It was known by the security branch at the time, that a certain A G Lawrence was Nyanda's second in command and that one Keith McFadden was also involved in assisting the revolutionary cause. We refer to the ANC Further Submissions, page 43, and the ANC Submissions, page 94, and the evidence of Mr Rorich, Pienaar and Van Zweel, which confirmed this fact. We say at page 24, Chairperson, although Cronje only spoke about Nyanda in his evidence before the original Amnesty Committee as being the target, it is abundantly clear that he conveyed the correct instructions to Mr de Kock, Mr Pienaar, Mr Rorich, van Zweel and van Dyk, judging by their evidence which was to the effect that Nyanda, Lawrence and, in the case of Mr de Kock he also added McFadden, and any other person in the house, were the targets for elimination. It is submitted that if only Nyanda was the target, as the impression is that Mr Cronje's evidence gives, it would have made no sense to insist that the attack be carried out against the house. If only he was targeted, surely he could have been eliminated anyway.
Chairperson, by the by there was information placed before you in regard to an informer. We know that an informer pointed out the particular house.
CHAIRMAN: Mr Visser, I find the evidence totally confusing on this and on Mr Lawrence's possible implication, but trying to consider it, I also consider it to be totally irrelevant.
MR VISSER: I was going submit exactly that to you, Chairperson, it takes the matter really no further. The fact is they went there and they killed these two people and that's really what's relevant. We can then skip that whole paragraph Chairperson and turn to page 25, where I make the submissions in regard to Mr Schoon and, clearly, it would apply also to the other applicants, that the operation was, as you pointed out before this morning, was carried out strictly in terms of the order which had been given by Gen. Steenkamp, by all concerned who apply now before you. It is further submitted that the act was clearly associated with a political objective insofar as it was directed at members or supporters of a liberation movement, executed during the conflict of the past, with a view of countering the revolutionary onslaught. The applicants all bona fide believed that what they did was in the execution of their duties, and fell within their express or implied authority, as envisaged by Section 20 sub 2 sub f. No evidence, or even a suggestion, presents itself to the effect that personal gain or malice or reward played any part in the execution of the act. Although, Chairperson, Mr Mohlaba appears for the family of Mr Nyanda, no grounds for any objection to the application of the applicants have been forwarded by him, or made.
CHAIRMAN: I think one can go further than that, can't one, Mr Visser? My recollection, and I could be wrong in this, is that I saw a statement in the press of an extremely statesmanlike nature made by Mr Nyanda's brother in this regard.
MR VISSER: May we join in with you in your description, Chairperson, by adding that it was also very dignified. It struck me as a very dignified statement which he made, from which the inference could clearly be drawn that it was not his intention for this application to be opposed, and in fact he said that he and his brother were both targets and it could have been either him or his brother and he accepted that fact in the news report, which also struck a chord, Mr Chairman.
Chairperson, you will be pleased to hear that I am not going to take you through the rest of the written submissions. We deal with certain aspects which, from time to time, do crop up, Chairperson. The question of armchair approach, the dangers of an armchair approach to actions taken in a war situation, the issue of innocent bystanders, and this is specifically included in regard to the lady Fikile, although there are clear indications that she was also a member of the ANC, in fact a courier. I am not certain whether your attention has been drawn to this fact before, but if we can refer to, I'm not sure whether the leaflet, the extract from the Further Submissions of the ANC has been given an exhibit number, Chairperson, but in that document there is reference at page 121, on the left hand side in the left column under the heading "The Raid", it starts off, this is again that confession Chairperson, "on that particular evening myself and Keith McFadden were busy trying to phone Maputo to make sure that we were picked up from Lomahasha" and then follows the following words, "Zweli had gone earlier in the night to pick up Fikile, whom we were to send to Durban as a courier". There is some indication that she wasn't a mere innocent bystander and we mention this from the point of view that Ms Patel put to one of the witnesses, I believe it might have been after recalling Mr de Kock, that she was, no, I'm sorry, it was Mr Mohalba, that she was, according to his information, wounded in the leg. If that is so ...(intervention)
ADV SANDI: In the thigh, she was wounded in the thigh.
MR VISSER: Alright, in the thigh. If that is so, certainly none of the applicants know about this, certainly none of the applicants can rule that out completely as a possibility and we would ask you then to add any assault or attempted murder on Fikile to our applications Chairperson, as part and parcel of the same incident in any event. So that deals with innocent bystanders.
At page 29 we deal with the background created by the Interim Constitution. We deal briefly with matters arising from the act, which you have heard before, and I am quite certain, Chairperson, with respect, you don't want to hear from me again this morning.
We deal at page 32 with the legal requirements, Chairperson, at page 33 with the act associated with a political objective. Then at page 34 we deal with section 20 sub 4 of the Promotion of National Unity and Reconciliation Act which provides, in applying the criteria contemplated in subsection 3, that is of the TRC Act, the committee shall take into account the criteria applied in the Acts repealed by section 48. Those Acts we list in paragraph 121 and 122 and the point of this, Chairperson, is that in the Further Indemnity Act, the definition provided in this Act, unless the context otherwise indicates, an Act with a political objective means any act or omission which has been advised, directed, commanded, ordered or promoted with a view to the achievement of a political objective. In chapter 1, Chairperson, where it deals with the release of certain prisoners serving life, it is provided that the State President may release certain prisoners unconditionally, or on conditions seen fit by him, if he is of the opinion that (i) the offence in respect of which that prisoner was convicted or sentenced to imprisonment, was advised, directed, commanded, ordered, or performed with a political object.
The point which we make, Chairperson, in the following paragraphs, is simply this, that the TRC Act has laid down a lesser test insofar as the act only has to be associated with a political objective. Certainly in subsection 3 of section 20, there are elements of subjective intention. One, for example, talks about the motive etc., but by and large, the TRC Act deals with objective fact, Chairperson, and that is less onerous than what the previous Indemnity Acts stipulated in order to receive indemnity, amnesty or immunity.
Chairperson, we say that the applicants do fall in terms of the provisions of section 22 b in the present case, if however you feel that that is not so, then quite clearly and indisputably, they do fall within the provisions of subsection 2 f of section 20, in that they believed that what they did, fell within the course and scope of their duties and within the scope of their express or implied authority, as we say in paragraph 128 and further, Chairperson.
An issue which may exercise the minds of the members of the Committee is addressed at page 38, execution of illegal orders. We have before and we rely again on the dictum of Justice van Dijkhorst in Rafolo’s case. We have given you an extract from that decision Chairperson, which speaks for itself and the relevant words are in the middle. This reasoning, in my respectful view, misses the point. Guideline 7 cannot be read as if it referred to lawful orders only. The guidelines, Chairperson, you will recall, were guidelines by the council or committee, set up of three judges, set up at the time to advise the State President on whether to grant amnesty etc. to persons.
At page 39 we deal with the issue of competence of amnesty orders and I will merely, Chairperson, refer you to paragraph 142 where we conclude that we would submit that the proper approach would be for the Amnesty Committee to grant amnesty as has been applied for by an applicant, for the entire act, omission or offence, without concerning itself with the legal effect, which it might or might not have in a foreign country where the offence, or part of the offence was completed, as we have in the present case. We say, Chairperson, that in all these circumstances you have before you an application which is, if I may use the words, a good application by comparison to other applications, where the applicants all acted under orders, where they did not transgress any part of that order, none of the applicants transgressed any part of that order and where it was clearly an act ordered and carried out against military personnel of Umkhonto weSizwe in order to stop the attack, or to counter the attack and to save lives and property in the country. We would ask you , Chairperson, to grant Brig. Willem Schoon amnesty, as prayed for.
Thank you Chairperson, that went very quickly. Thank you for allowing this to be copied because otherwise we would have been here a little longer, I suppose.
CHAIRMAN: Who is next?
MR HATTINGH IN ARGUMENT: I think I will be next, Mr Chairman, with your approval.
We are indebted to our learned friend, Mr Visser, for his argument that he presented to you. We associated ourselves with all the submissions contained therein. We have very little to add, Mr Chairman. We submit that Mr de Kock has also complied with all the requirements of the TRC Act and that he should also be granted amnesty.
In this particular instance, for a change, he was a foot soldier. He carried out commands.
CHAIRMAN: There's no doubt here he was given an order, which he carried out.
MR HATTINGH: Certainly, yes, Mr Chairman. Mr Chairman, there were some questions directed to the issue as to whether the presence of Mr McFadden in the house at the time, was discussed during the planning of the operation. I submit that very little turns on that question. Mr de Kock knew of Mr McFadden's involvement in the struggle, before the operation was planned. It's an objective fact that Mr McFadden was indeed killed in the house.
CHAIRMAN: Wasn't the instruction to kill everybody who was there?
MR HATTINGH: Precisely, precisely, yes, Mr Chairman. The incident was also fully discussed in the car on the way to Durban and probably with the Durban Security Branch. What probably happened was, Mr Chairman, that Mr de Kock probably made a mistake, but he says that's how he recalls it. Bear in mind, Mr Chairman, that if you look at his affidavit, you will see that he hasn't committed himself to that particular fact, namely that the presence of Mr McFadden was discussed at the planning of the operation. Bear in mind too, Mr Chairman, that he had access to the applications of all the other applicants and he could therefore easily have adapted his version to fit in with theirs, but he told you, that is my recollection and he stuck to it. Perhaps he's right, perhaps he's wrong, it matters little, in our submission. Mr Chairman, we must never forget that we are dealing with an incident which occurred some 16 years ago. We submit, therefore, Mr Chairman, that Mr de Kock made a full and complete disclosure of his involvement in this particular incident and that he should, with respect, be granted Amnesty. Thank you Mr Chairman.
MR PRINSLOO: Thank you, Chairperson. Chairperson, I have set out the application, which is based on the application of Pienaar and van Zweel and what they ask amnesty for. May I hand it up to the Honourable Committee?
Chairperson, I am indebted to my learned friend, Mr Visser, for what he has handed up to you. I won't add anything to that, except to say that I mentioned the conspiracy to commit murder. It is only elaborated thereon that the conspiracy includes that of Lawrence, as well as the person in the house and, of course, Mr Zweli Nyanda. Further application is handed up for amnesty for murder of Mr Nyanda as well as Mr McFadden, malicious damage to property, defeating the ends of justice and any other acts which might emanate from the facts, and any other unlawful act. What is not indicated there in writing, Mr Chairperson, as it will seem from the argument of Mr Visser, is that Ms Fikile was also a part thereof, but the evidence was that she was not seen in the house and that the possibility had to be foreseen. I would ask that, with regard to her, conspiracy to murder be included. Furthermore, both applicants have made a full disclosure to what the facts were and I request that amnesty be granted to both applicants van Zweel and Pienaar. Thank you, Chairperson.
MS VAN DER WALT: Chairperson, I have also set out the offences as you have requested yesterday, for which I ask that Mr van Dyk and Mr Pienaar be granted amnesty. I ask that it be handed up to you. I support Mr Visser's complete argument and I request that you find that they comply with the requirements of the Act. Thank you.
MR MOHLABA: Chairperson, I've got no submission with regard to the merits of the matter. However, I just want to make a brief statement on behalf of the family of the deceased, Mr Nyanda. Chairperson, the next of kin of the deceased bear no grudges against the killers of their loved one and the applicants have been forgiven, or are being forgiven, by the family and the rest will be left to the capable hands of the Committee. Thank you.
CHAIRMAN: Thank you. Before you go though, in the event of us making any findings, are there any persons you should find to have been victims, to refer them to the Committee.
MS PATEL: Yes, Mr McFadden has a daughter, the late Mr McFadden had a daughter, Honourable Chairperson. I'll get the details from his sister, who is present, and submit it as part of my report.
MR MOHLABA: There are at least two daughters of the deceased, Zweli Nyanda.
MS PATEL: Thank you, Honourable Chairperson. I would like you to see what I have to say on the basis of comments, rather than submissions, in respect of this application, Honourable Chairperson.
Regarding the question of political motivation, there can be no question or no doubt in our minds, Honourable Chairperson, that the conduct of all the applicants was indeed politically motivated and that they have crossed that hurdle as set out in the Act. Regarding the question of full disclosure, I have a couple of comments to make. Firstly, to deal with the preliminary issues, that of the applicant van Zweel. I will ask you to take into consideration that his version of his participation in this operation is substantially different to Mr de Kock's recollection of his involvement in this operation. Honourable Chairperson, I will also ask you to take into consideration that Mr de Kock has stated that his recollection of Mr van Zweel's participation in this matter was very clear and that there could be no question in his mind that he is correct when he had testified on this particular aspect. Then the other question is that of the targets. Honourable Chairperson, in as much as Brig. Schoon has told us that he had in his mind the broader picture, that not only Mr Nyanda was a target, but that whoever else was in the house was also seen as a target, on the other hand, I would ask you to take into consideration the question of Mr McFadden. Firstly, to accept as a fact that he wasn't involved in acts of terror, as a case has been made out in respect of Mr Nyanda. It is, however, conceded that he did play a subsidiary role. It is not my intention, nor is it the intention of the family who is present here, to minimise Mr McFadden's contribution to the liberation movement in this country whatsoever, Honourable Chairperson. However, I will ask you to take into consideration the contradictions between the versions that have been placed before you in respect of Mr McFadden. Mr Cronje stated that he didn't know Mr McFadden, that he didn't have information about him prior to the operation taking place and that his motivation in the murder of Mr McFadden was that it was an operational decision, it was either Mr McFadden or him. He wasn't going to wait to see whether he was going to be shot first, or not. My submission in respect of Mr McFadden's involvement, as part of involvement in the liberation movement as a motivation by the applicants, is in fact an ex post facto motivation. So there's a distinction between somebody who was foreseen as a legitimate target and somebody who is caught in the crossfire. My submissions in respect of the woman Fikile, who was injured in the house, is indeed the same. In respect of her, Honourable Chairperson, I will ask you to take into consideration Brig. Cronje's clear testimony to us regarding the policy of women at Vlakplaas at the time. He said that, he stated very clearly, that it was our policy that, where possible, we did not wage war against women and children.
CHAIRMAN: What was the precise evidence about her presence and her being wounded?
MS PATEL IN ARGUMENT: He stated, if my memory serves me correctly, that she was found in a cupboard, or in a wardrobe, and that there was a decision taken not to kill her. He did not make mention of her being found in the bathroom or in fact of her being injured at all, Honourable Chairperson. In fact, that information only came to our knowledge after a discussion was had between my learned colleague here, Mr Mohlaba and the said Fikile.
So my request then, Honourable Chairperson, is when it is considered whether the applicants are going to be granted amnesty in respect of the assault on her, I will ask you to take into consideration Brig. Cronje's stated policy to us in this regard.
CHAIRMAN: But what assault on her? That's what I asked you. You say that the only evidence is that she was hiding in a cupboard somewhere.
MS PATEL: No, the information from Mr Mohlaba was in fact that she was also shot.
CHAIRMAN: Nobody gave evidence to that effect before us.
MS PATEL: No, there is no independent evidence in that regard, Honourable Chairperson.
Then just to place on record my client's concern, that is Ms McFadden's concern about the role of the Swaziland police in this incident. Honourable Chairperson, there is still no clarity as to exactly what the nature of the co-operation was between the Swaziland police and the security branch members and who, in fact, in the Swaziland police was responsible for giving the information through to them. It is indeed unfortunate that this information has not been given to us. It is something that is of serious concern to Ms McFadden, especially in light of the fact that the family was in fact harassed by the Swaziland police at different stages. It is important to them to know exactly who was responsible for that.
Those are then my submissions, or my comments, Honourable Chairperson.
MR VISSER ADDRESSES: Mr Chairman, not by way of reply, but perhaps in order to attempt to assist, the passages where reference is made by Cronje to the lady, I'm not sure what the page numbers are because I took this off the internet, Chairperson, but on my page 313 he says
"There was a man wrapped in a blanket, he jumped up and ran down the passage. Immediately I went after him and I kicked open the door of the bedroom he had fled into. The light was on and I started shooting at the man. I killed him. There was a woman hiding in the wardrobe. We left her there and did not injure her. Thereafter I went out..." etc.etc.
Then at page 350, Chairperson,
"Du Plessis: Was there a woman in the house?
Brig. Cronje: Yes, there was a woman there, but it was our policy so that, where possible, we did not wage war against women and children, or at least, I should say, innocent women and children."
Then at page 316,
"Judge Wilson: Brigadier you used the word innocent there. She was an innocent woman, was she, although she was in the same house and in the same room as McFadden?
Brig. Cronje: I didn't know her at all, Mr Chairman, and I had to assume that she was innocent at the time because I'd never heard of her before.
Where was she Brigadier?
She was hiding in a wardrobe."
Then it goes on to McFadden.
Chairperson, I just want to make a brief submission and that is, this Committee can't be bound by what Cronje stated, not being cross-examined etc. If an issue arises, then he's got to come and give evidence so that we can cross-examine him, otherwise, we submit that you will accept the evidence, unless the evidence given before you is so inherently improbable that it calls for other evidence to be called.
CHAIRMAN: Accept what evidence?
MR VISSER: The evidence of the applicant, given before you.
CHAIRMAN: But none of them saw a woman there. I think that's what has just been conceded. On Cronje's evidence, even if there was a woman there, she was not assaulted or injured in any way. No offence was committed.
MR VISSER: That is correct, Chairperson.
CHAIRMAN: We will take time to consider our verdict in this, as with the other matters, and that, I think, concludes for the week. I'd like to thank you all for your assistance. Perhaps I can ask you for a bit more argument, Mr Visser, two minutes or three minutes?
Can one take into account, do you think, the conditions under which the Vlakplaas unit lived, now that we have been to Vlakplaas and seen it? They lived as a close community, with the members of the South African Police Force and the askaris. Can one assume that the askaris would have told their new colleagues what training they had had in the past and what they had intended to do? These Vlakplaas police, because you mentioned in your argument the pressures police worked under and the conditions, it seems to me that the Vlakplaas police would have had an even greater knowledge of what was being planned in the total onslaught against them, than the other police.
MR VISSER: Yes, Chairperson, we certainly agree in principle with what you're saying. One can possibly commence one's thoughts about this with reference to what various people said about Vlakplaas. Mr de Kock described Vlakplaas, or the people who were there, as the operational arm of the police. In a sense, yes, if one has to take the golden midway between, on the one hand, the assertion that Vlakplaas was merely there to trace and identify and arrest terrorists and to try to confiscate illegal firearms and, on the other hand, the evidence that Vlakplaas was actually the operational arm, and if one says that it had to be somewhere in between, it was probably a situation where, yes, they were doing what they were supposed to do, but occasions did arise where they did other things, as we know.
CHAIRMAN: But they were subject to continual pressures there which the others might not have been?
MR VISSER: Yes, I was just going to say, in that sense, there does seem to be truth in what Mr de Kock told you, that when people really had a problem, they called on Vlakplaas. That would have exerted the kind of pressure, I think, which you are putting to me, Chairperson. Yes, certainly. Of course there's another factor to this and that is that being in the close-knit society which we heard about, when one person commits an offence it is one thing, but when you have a shared responsibility with others acting with you in concert, it somehow becomes easier and from that point of view it may be that, because they were in a group, because they were acting and conducting themselves in a certain way, yes, certainly, and because they knew they could be called upon to help all over the country with problems that arose, certainly that, if you don't want to call it a pressure, it would certainly have been an instigation.
CHAIRMAN: Well the footsoldiers must surely have believed, we can't argue with them, that this funny unit who lived by itself, stuck away like that, had been set up for a special purpose. When they were told to go and do something, that was the special purpose.
MR VISSER: Yes, yes. Indeed, Chairperson, in essence we can't agree with your view on the matter. We don't disagree with it. What did I say? I'm sorry. We can't not agree. We can't but agree.
CHAIRMAN: We've already selected 10 o'clock. One other matter before we part, those of you who are coming back on Monday, I understand the transcript has been sent to you directly, the transcript of the earlier evidence. If you haven't received it, you had better start making enquiries. It's not coming through here. We received ours this morning, but we were told that your copies would have gone direct to your offices. 10 o'clock on Monday morning.
COMMITTEE ADJOURNS
