Amnesty Hearings

CHAIRPERSON: Yes, Mr Cornelius?

MR CORNELIUS: I call Mr N J Vermeulen Mr Chairperson.

CHAIRPERSON: Give your full names for the record please.

MR VERMEULEN: Nicolaas Johannes Vermeulen.

NICOLAAS JOHANNES VERMEULEN: (sworn states)

CHAIRPERSON: Thank you, please be seated. Mr Cornelius?

EXAMINATION BY MR CORNELIUS: Thank you Mr Chairman. Mr Vermeulen, you have made an application and handed it in in Cape Town and you gave your full co-operation to the Investigative Team of the TRC.

MR VERMEULEN: That is correct.

MR CORNELIUS: You were an employee of the South African Police as defined in Section 20(2)(a) and (f) of the same Act?

MR VERMEULEN: That is correct.

MR CORNELIUS: During that period when Tiso Leballo died, and this is the only incident you were involved in, you were not involved at Nelspruit?

MR VERMEULEN: No Mr Chairman.

MR CORNELIUS: You were then working at Vlakplaas under the command of Eugene de Kock?

MR VERMEULEN: That is correct.

MR CORNELIUS: What was your rank?

MR VERMEULEN: Warrant Officer.

MR CORNELIUS: And I understand that you are also an Explosives' Expert?

MR VERMEULEN: That is correct. I was Inspector of Explosive Devices.

MR CORNELIUS: At all times you followed the instructions of Col Eugene de Kock?

MR VERMEULEN: That is correct.

MR CORNELIUS: And you acted within the limits of your duties?

MR VERMEULEN: That is correct.

MR CORNELIUS: Let us go back to the incident, your statement is found on page 200. There was a bus involved in this incident at Nelspruit, in that you were involved. Can you tell the Committee how you knew about this little bus?

MR VERMEULEN: Mr Chairman, Col de Kock came to me on a certain day and asked me to go with him to Benoni to the Riebeeck Hotel. There he gave me a key and told me this is for a little bus, I had to remove from the parking area. He gave the key to me and he took me to the bus, I got into the bus, I switched it on and drove to my own home. There I parked the bus for about one or two weeks.

MR CORNELIUS: Did you lock up the bus in the garage?

MR VERMEULEN: Yes, I locked it up in the garage.

MR CORNELIUS: Did you hide it away there?

MR VERMEULEN: Yes, I hid it away.

MR CORNELIUS: And then?

MR VERMEULEN: Then on a certain day, I cannot remember the exact day, Mr de Kock told me that the bus had to go to the Grasdak. I did exactly that and I never saw that bus again.

MR CORNELIUS: This bus, you took to the premises in Waterkloof known as Grasdak?

MR VERMEULEN: That is correct.

MR CORNELIUS: In your application you said you cannot remember whether you got the key from Mannie or de Kock?

MR VERMEULEN: I got this key from de Kock, Mannie’s name, this happened at Mannie’s hotel.

MR CORNELIUS: I see. How did you get involved with Tiso Leballo? Did you get a telephone call?

MR VERMEULEN: Nortje called me one morning and said that I had to accompany, I had to meet Gevers at the Ultra City and I would get further instructions.

MR CORNELIUS: Did he tell you what to take with?

MR VERMEULEN: He said I had to take some rope with.

MR CORNELIUS: And your application says wire and rope? What did that mean?

MR VERMEULEN: If it referred to rope it meant cortex, it looked like a rope, it is a yellow type of rope and wire could have been for security purposes.

MR CORNELIUS: So you understood from Nortje's call that you had to take explosives with?

MR VERMEULEN: Yes, that is correct.

MR CORNELIUS: Then it is common cause that you and Britz travelled to Shell Ultra City in Middelburg. What happened then?

MR VERMEULEN: We met Gevers and them there and Gevers told me that there had been a problem at the Nelspruit operation, that they have a person with them who had to participate in this operation but later on he was caught out to be a member of the ANC and he would participate in the robbery and that he had to be eliminated and his body had to be burnt with explosives.

MR CORNELIUS: What did he tell you more about the political affiliation of the person in the boot?

MR VERMEULEN: All that I can remember was that he was a member of the ANC and that he participated in this robbery to obtain funds for the ANC.

MR CORNELIUS: You then returned to Pretoria to get more explosives?

MR VERMEULEN: That is correct.

MR CORNELIUS: What did you get then?

MR VERMEULEN: I got 25 kilograms of military explosives and also commercial explosives, but I can't remember how much, about the same amount, 20 kilograms more or less.

MR CORNELIUS: It is common cause that you then went to Penge Mine. Were you there when Tiso was questioned?

MR VERMEULEN: No.

MR CORNELIUS: You went into the mine to prepare the scene, is that correct?

MR VERMEULEN: That is correct yes.

MR CORNELIUS: What happened later on?

MR VERMEULEN: After I had finished with the preparation of the explosives, I went back to the ruins where I told Gevers and them that I was ready as soon as they were ready.

MR CORNELIUS: They went into the open mine shaft?

MR VERMEULEN: That is correct.

MR CORNELIUS: Was it dark at that stage?

MR VERMEULEN: Yes, it was dark.

MR CORNELIUS: What happened then, did you use lights? Did you use torches?

MR VERMEULEN: No, I cannot remember about torches, it was light enough, you could still see what you were doing.

MR CORNELIUS: What happened then?

MR VERMEULEN: I was already on the scene where the explosives were, Gevers and I only heard this later on after the shooting, he shot Tiso. His clothes were taken off, we took him down to the whole, we bound the explosives to him and we tied it to him and I detonated it and destroyed the body.

MR CORNELIUS: And you paid no attention to the shooting and Tiso's death?

MR VERMEULEN: No, that was not part of my duties.

MR CORNELIUS: Very well. The body was destroyed and the next morning Mr Britz said that all the remains were gathered and there was another explosion?

MR VERMEULEN: That is correct, we went back to the scene, we found parts of the body, put it in the hole again and destroyed it again with explosives.

MR CORNELIUS: Did you receive any compensation for the work you had done?

MR VERMEULEN: I have received compensation afterwards.

MR CORNELIUS: How much?

MR VERMEULEN: I am not sure, I think it was R600. I lodged a false claim to obtain this.

MR CORNELIUS: You did not commit these deeds to be compensated for it?

MR VERMEULEN: No.

MR CORNELIUS: Did you have malice against Tiso?

MR VERMEULEN: No.

MR CORNELIUS: And you have give us all the facts, you disclosed all the facts regarding this specific incident?

MR VERMEULEN: That is correct.

MR CORNELIUS: And you are applying for amnesty for the murder of Tiso Leballo, the destruction of the body and then also the illegal possession of explosives or the contravention of the Act of Explosives?

MR VERMEULEN: That is correct.

MR CORNELIUS: You never made a false statement in this regard?

MR VERMEULEN: No Mr Chairman.

MR CORNELIUS: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR CORNELIUS

CHAIRPERSON: Thank you Mr Cornelius. Mr Hattingh?

MR HATTINGH: I have no questions, thank you.

NO CROSS-EXAMINATION BY MR HATTINGH

CHAIRPERSON: Mr Lamey?

CROSS-EXAMINATION BY MR LAMEY: Thank you Mr Chairman. Mr Vermeulen, previously you and Mr Britz were involved in the Mabotha incident that went the same as this incident?

MR VERMEULEN: That is correct yes.

MR LAMEY: Were you still half asleep when Mr Nortje phoned you?

MR VERMEULEN: That is correct, yes.

MR LAMEY: In your statement you say that you were not sure what he meant and you asked him and he said that you would know, did you realise what you had to do at that stage?

MR VERMEULEN: No.

MR LAMEY: Did you only find that out at Ultra City?

MR VERMEULEN: Yes.

MR LAMEY: When you found that out at Ultra City, those people had not been at Penge Mine before, like for example Gevers. Gevers hadn't been to Penge Mine?

MR VERMEULEN: No Mr Chairperson.

MR LAMEY: And Swart?

MR VERMEULEN: No, I don't think he had been there?

MR LAMEY: And Chait?

MR VERMEULEN: Not.

MR LAMEY: Did you know this had to be done at Penge Mine, that was the indicated place?

MR VERMEULEN: That was the instruction from Gevers, yes.

MR LAMEY: Could you have possibly thought that yourself?

MR VERMEULEN: Yes, I could deter that.

MR LAMEY: That was the place, to be done? I don't think Mr Gevers said that specifically, because he hadn't been there and he hadn't been involved with such an incident and his evidence was not that when he left Nelspruit, that he knew exactly where they were going to? Could it possibly be because you were involved in the Mabotha incident and you have a problem with a person now and you had to get the explosives, that you had to go to Middelburg, did you understand that that was the best place to do that, that was at Penge Mine?

MR VERMEULEN: That is correct yes.

MR LAMEY: Did you understand that this instruction had come from de Kock?

MR VERMEULEN: That is correct Mr Chairperson.

MR LAMEY: Regarding the bus, de Kock just gave you a key for the bus, it fitted and you took the bus from the parking area. It was near the Riebeeck Hotel, this parking area?

MR VERMEULEN: That is correct Mr Chairperson.

MR LAMEY: Did you talk to Mannie that day when you took the bus?

MR VERMEULEN: I am not sure.

MR LAMEY: Do you know whether Mr de Kock went into the hotel to talk to Mannie?

MR VERMEULEN: Yes, we were in the hotel. I myself, did not know anything about Mannie. If he was there, I perhaps saw him, but I didn't speak to him.

MR LAMEY: But you all went into the hotel?

MR VERMEULEN: Yes, that is correct.

MR LAMEY: Thank you Mr Chairman, no further questions.

NO FURTHER QUESTIONS BY MR LAMEY

CHAIRPERSON: Thank you Mr Lamey. Mr van den Berg?

CROSS-EXAMINATION BY MR VAN DEN BERG: Thank you Mr Chairperson. Mr Vermeulen, if we look at your application in the Bundle, from page 168, etc, do you have it in front of you?

MR VERMEULEN: That is correct yes.

MR VAN DEN BERG: Is this your handwriting?

MR VERMEULEN: No, it is not my handwriting.

MR VAN DEN BERG: Whose handwriting is that?

MR VERMEULEN: I think it is my learned friend's.

MR VAN DEN BERG: Mr Cornelius' handwriting?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: You refer in various questions to "See Annexure", do you see that?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: If you look at page 200 and 201 where you pertinently refer to Nelspruit and Tsitetso Leballo, are those the annexures you are referring to?

MR VERMEULEN: That is correct, yes.

MR VAN DEN BERG: You also mention in reaction to the question " state the political objective sought to be achieved" and then you say

"... see annexure."

If we look at this extract from the annexure, page 200 and 201, there is no mention made of any political motivation.

MR CORNELIUS: Mr Chairman, may I just assist my colleague here. If you look at the acts and omissions, you will see from page - me being the author of this unfortunate document, from page 171, there is a full explanation given as to the political objectives and the acts itself. The reason why it was done in this fashion, was due to the voluminous application I had to draw for Mr Vermeulen as you will notice from page 171, there is all the various actions of the act.

CHAIRPERSON: So does 200 and 201 only deal with setting out the circumstances of the particular matter?

MR CORNELIUS: That is correct, it is only very short merits of each incident.

CHAIRPERSON: Very well.

MR CORNELIUS: But I will fully address the Committee at the appropriate time on that.

MR VAN DEN BERG: Do I understand it correctly that the documentation starting on page 171 "Compliance with the Requirements of Promotion of National Unity and Reconciliation Act", this is the annexure being referred to and this includes the description of Nelspruit, Motherwell, etc?

MR VERMEULEN: That is correct Mr Chairman.

MR VAN DEN BERG: And then if we look at page 179, there is a heading "Application in terms of Section 20 of the Promotion ..." and then it says the applicant, Nicolaas Johannes Vermeulen, that is all one document, is that correct?

MR VERMEULEN: Yes, that is correct.

MR VAN DEN BERG: What information was provided to you regarding Tsitetso Leballo? May I just take it step by step? The morning when Nortje phoned you, was any information given to you regarding Tiso?

MR VERMEULEN: No, nothing about Leballo. He only said there was a problem and I had to meet Gevers and his people at Middelburg, Ultra City.

MR VAN DEN BERG: And what information was then given to you by Gevers?

MR VERMEULEN: There Gevers told me that there was a person in the boot, he was part of the operation at Nelspruit, that he was a trained person who was involved with the robberies there and we had to shoot him and his body had to be destroyed with explosives.

MR VAN DEN BERG: Was any mention made of the name of Mrs Winnie Mandela?

MR VERMEULEN: I can't remember that.

MR VAN DEN BERG: You can't remember that? Because the link between Leballo and Mrs Mandela was for other applicants very important?

MR VERMEULEN: It could have been very important for them, but for me, it was not important. I had already received my instructions, and therefore I did not expand on this any further. Later on I heard that he was Mrs Mandela's driver.

MR VAN DEN BERG: For a period you were stationed in Soweto, is that correct?

MR VERMEULEN: No Mr Chairman.

MR VAN DEN BERG: I have a note to this effect. You say this is not correct?

MR VERMEULEN: No.

MR VAN DEN BERG: Mr Chairperson, I will check my notes and if it appears that I am incorrect, then I will correct that. If I might be afforded an opportunity to deal with that at a later stage. You were not present when Leballo was interrogated?

MR VERMEULEN: No.

MR VAN DEN BERG: Was this interrogation later, did you discuss it later that evening, you as a group of people who were involved?

MR VERMEULEN: I cannot remember Mr Chairman, usually we do not do it in that way.

MR VAN DEN BERG: There was no analysis of what information he conveyed, or not?

MR VERMEULEN: No Mr Chairperson.

MR VAN DEN BERG: You did not discuss this operation at all?

MR VERMEULEN: No Mr Chairman.

MR VAN DEN BERG: Mr Chairperson, subject to the one issue that I maybe incorrect on, I don't have any further questions.

NO FURTHER QUESTIONS BY MR VAN DEN BERG

CHAIRPERSON: Yes, that is in order, thank you Mr van den Berg. Mr Francis?

CROSS-EXAMINATION BY MR FRANCIS: Thank you Mr Chairperson. Was it policy of Vlakplaas to steal vehicles from the public?

MR VERMEULEN: I don't know Mr Chairman.

MR FRANCIS: But you were working at Vlakplaas, is that not so?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: So why don't you know?

MR VERMEULEN: Because that was the first vehicle that I was told to steal Mr Chairman.

MR FRANCIS: Do you know why this vehicle had to be stolen?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: Did you know afterwards why it was stolen?

MR VERMEULEN: Afterwards, yes, Mr Chairman.

MR FRANCIS: Was it to benefit Mr de Kock's friend, Aragio?

MR VERMEULEN: That is what I - the vague - yes.

MR FRANCIS: Was it policy to kill people and to blow them up, was it Vlakplaas policy to kill people and blow them up without knowing what their links were?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: If I understand you correctly, you just got an instruction that there is a problem and that you went ahead to blow up Tiso without knowing what his links were?

MR VERMEULEN: I knew he was a trained MK and he was part of the persons that were busy at Nelspruit, trying to rob the bank for the ANC, that I heard afterwards.

MR FRANCIS: No but let's deal with what you heard before. Did you know that he was an ANC member before you blew him up?

MR VERMEULEN: Yes, I knew that Mr Chairman.

MR FRANCIS: But I think you were asked by Mr van den Berg, I think he put it to you that there was no reference to Tiso having any links with the ANC and you confirmed that?

MR VERMEULEN: I did not confirm that, I said Mr Gevers gave me instructions at Middelburg that he was a trained person, MK man and that he was part of the robbery at Nelspruit Mr Chairman.

MR CORNELIUS: That is correct.

MR FRANCIS: You only heard after he was killed that he was the driver of Winnie Mandela?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: Before he was blown up, I take it that you must have gone back to where Gevers and the other persons were who were interrogating Tiso, is that correct?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: And I take it too that you then took them to where the open mine was, is that correct?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: You must have walked alongside them, is that correct?

MR VERMEULEN: I don't think so, I think I walked in front, Mr Chairman.

MR FRANCIS: Was there any discussion that took place whilst you were walking to the open mine?

MR VERMEULEN: I didn't discuss anything with him.

MR FRANCIS: Didn't I think one of the applicants said that you told him that you wanted to show him something of interest at the mine, and that is why he went together?

MR VERMEULEN: What I told Gevers when I was finished preparing the explosives, I went back and I told them I was ready.

MR FRANCIS: And then Gevers took Tiso and they left?

MR VERMEULEN: And they left in the kombi. I took them down to the open shaft mine.

MR FRANCIS: So you all travelled in the kombi together, to the open mine?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: Where was Tiso in the vehicle?

MR VERMEULEN: He must have sat in the back Mr Chairman.

MR FRANCIS: Who drove the kombi?

MR VERMEULEN: I did Mr Chairman.

MR FRANCIS: And Tiso didn't ask where he was taken to?

MR VERMEULEN: I can't recall that Mr Chairman.

MR FRANCIS: I take it I mean that you must have stopped the kombi at some time, and then walked towards the open mine, is that correct?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: At what stage was it decided that Tiso would have to be shot? Do you know?

MR VERMEULEN: I was not there when that was discussed, but he would have been shot - I took it on myself that he would have been shot there where the explosives were.

MR FRANCIS: Do you know where this weapon came from?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: Do you know whether or not Mr Swart had a 38 revolver on him?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: What weapons did you have when you went to the mine, except for the explosives?

MR VERMEULEN: I think I only had my own personal 9mm.

MR FRANCIS: Because Gevers I think in his affidavit said that Klopper, not Klopper, I am becoming confused, but that he got I think the firearm from, he got the firearm from Britz?

MR VERMEULEN: I don't know about that, it couldn't have been because Britz was the whole time with me, Mr Chairman.

MR FRANCIS: But Britz took part in the interrogation?

MR VERMEULEN: Yes, that is correct Mr Chairman.

MR FRANCIS: So you don't know if there was a discussion that Gevers will do the killing?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: Was there no struggle that took place before you got to the open mine?

MR VERMEULEN: Not as far as I can recall, Mr Chairman.

MR FRANCIS: You heard no gunshots going off?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: You heard nobody saying "skiet, skiet" or words to that effect?

MR VERMEULEN: I can't recall that Mr Chairman.

MR FRANCIS: But you were ahead of them?

MR VERMEULEN: I was ahead of them and my work is to do the explosive part, and I just did that. I didn't listen or if it could have come to my mind, I cannot recall that Mr Chairman.

MR FRANCIS: You don't know what happened to Tiso's shoes?

MR VERMEULEN: Afterwards yes, I heard from Mr Britz that he took the shoes.

MR FRANCIS: Did he tell you why he had taken the shoes?

MR VERMEULEN: He was scared that if he burnt it with the clothes, the buckles wouldn't burn away completely Mr Chairperson.

MR FRANCIS: You recall the buckles?

MR VERMEULEN: Say again?

MR FRANCIS: You recall the buckles?

MR VERMEULEN: That is what he told me Mr Chairman.

MR FRANCIS: Is it not that he basically took the shoes for himself because he liked the shoes?

MR VERMEULEN: No Mr Chairperson.

MR FRANCIS: Who took his clothes off?

MR VERMEULEN: It is difficult for me to say, but all the people that was involved there, took the clothes off Mr Chairman.

MR FRANCIS: Were you involved in it?

MR VERMEULEN: Yes, I think so yes, Mr Chairman.

MR FRANCIS: You had no, are you telling this Commission that you heard no gunshots going off?

MR VERMEULEN: I don't understand what do you mean by gunshot sir?

MR FRANCIS: Did you hear any shots after Tiso was shot ... (no interpretation)

MR VERMEULEN: I heard the shots yes, when Tiso was fired at, there were no other shots.

MR FRANCIS: How many shots did you hear?

MR VERMEULEN: I heard three shots.

MR FRANCIS: There was no struggle?

MR VERMEULEN: Not as far as I know.

MR FRANCIS: There was no mention that Tiso had to be arrested?

MR VERMEULEN: No Mr Chairperson.

MR FRANCIS: You did not see that Britz was holding him by his arm?

MR VERMEULEN: No, I only heard that afterwards. But at that stage, I was busy, I was not busy with Tiso, I was busy with my explosives.

MR FRANCIS: Gevers testified to the effect that you had polony rolls?

MR VERMEULEN: That is correct yes.

MR FRANCIS: And I think at a stage Mr Lamey told him that you will give evidence that it was not only polony rolls, but also something else, cortex?

MR VERMEULEN: Yes, I just want to inform you Mr Chairman, cortex is used to detonate the main explosive. Commercial explosives has a low charge, because you need something to charge the commercial explosives, for that reason we use cortex to do that.

MR FRANCIS: How far from the open mine was Tiso shot?

MR VERMEULEN: I would estimate about between 5 and 10 metres.

MR FRANCIS: How did he get into the open shaft?

MR VERMEULEN: I drove with the kombi near to the embankment, we climbed down, it wasn't very steep and he was they shot him very close to the explosives.

MR FRANCIS: How did he get there, did you carry him?

MR VERMEULEN: After he had been shot, we carried him to the explosives.

MR FRANCIS: You helped carrying him there?

MR VERMEULEN: Yes, that is correct. It could have been Britz, Swart, Gevers and myself, yes, I would say the four of us carried his body down.

MR FRANCIS: Who assisted you with the destroying of the body be explosives?

MR VERMEULEN: Mr Britz assisted me.

MR FRANCIS: What was his role?

MR VERMEULEN: He had to assist me to keep the body upright, so that we could tie the cortex around the body.

MR FRANCIS: Do you have any first-aid knowledge?

MR VERMEULEN: Yes.

MR FRANCIS: Do you know if Tiso at that stage was dead or alive?

MR VERMEULEN: It seemed to me that he was dead.

MR FRANCIS: Is it a fact or did you just think he was dead?

MR VERMEULEN: I wouldn't be able to say.

MR FRANCIS: Were any steps taken to ensure that he was really dead?

MR VERMEULEN: No Mr Chairperson.

MR FRANCIS: Why not?

MR VERMEULEN: Because we believed that he was dead already.

MR FRANCIS: I am not referring to us, I am referring to you.

MR VERMEULEN: I believed that he was dead.

MR FRANCIS: Without investigating whether there was any signs of life?

MR VERMEULEN: After he had been shot, it took a while to take of his clothes, we carried him to the explosives. That took about five minutes and during that time, he showed no signs of life which we could physically see, Mr Chairperson.

MR FRANCIS: Apart from you being an Explosives' Expert, what else did you do at Vlakplaas?

MR VERMEULEN: At that stage they used me as an Instructor, Mr Chairman.

MR FRANCIS: What did that entail?

MR VERMEULEN: All the members at Vlakplaas were trained by me in shooting, house penetrations, etc, parachute jumping, etc.

MR FRANCIS: When did you join Vlakplaas?

MR VERMEULEN: 1985 in October.

MR FRANCIS: How did you feel when the ANC was unbanned?

MR VERMEULEN: I don't know, I had no feeling because I was not politically orientated.

MR FRANCIS: For you it did not matter?

MR VERMEULEN: No, everything remained the same then.

MR FRANCIS: But you had no problem with that, with the unbanning?

MR VERMEULEN: No Mr Chairperson.

MR FRANCIS: So you never at a stage regarded the ANC as enemies?

MR VERMEULEN: They have always been my enemies, my whole life long.

MR FRANCIS: You have just said you had no feeling about them being unbanned?

MR VERMEULEN: At that stage, while I was in the police, I was fighting against the ANC because they have always been my enemy, I would be lying.

MR FRANCIS: How did you feel when they were unbanned?

MR VERMEULEN: There was no difference Mr Chairman, nothing different happened. Whether they were banned or unbanned, everything remained the same.

MR FRANCIS: What do you mean by that? What do you mean by that?

MR VERMEULEN: Exactly, there was no difference in attitude. After they were unbanned, the so-called war never stopped, it just carried on.

MR FRANCIS: Is it correct to say that in on a certain stage Engelbrecht addressed you about the new role of Vlakplaas?

MR VERMEULEN: That is correct.

MR FRANCIS: Was there any objection regarding the new role of Vlakplaas?

MR VERMEULEN: Never.

MR FRANCIS: Is it correct to say that Engelbrecht always also arranged that you had to undergo certain training courses, there were certain courses presented at Vlakplaas regarding Vlakplaas' new role?

MR VERMEULEN: I don't know about that Mr Chairman.

MR FRANCIS: But you had to assist all the other units of the police?

MR VERMEULEN: At that stage I did not go out a lot, I was used as an Instructor and I worked on the basis of Vlakplaas.

MR FRANCIS: You did not co-operate in any Vlakplaas operations?

MR VERMEULEN: No.

MR FRANCIS: When did you stop participating in the operations, Vlakplaas operations?

MR VERMEULEN: I don't know, I think it was round about 1992.

MR FRANCIS: When in 1992?

MR VERMEULEN: I am not able to say.

MR FRANCIS: Are you sure it was in 1992, couldn't it have been in 1991?

MR VERMEULEN: I don't know Mr Chairman.

MR FRANCIS: You mention or you say that it could have been 1992, can you tell us what kind of operation that was?

MR VERMEULEN: Right at the beginning I went out with the teams, we worked in Soweto, in Durban, in the Eastern Cape, Western Transvaal, everywhere, to trace persons.

MR FRANCIS: Was it to kill the persons or to arrest them?

MR VERMEULEN: To kill them or arrest them, depending on the circumstances.

MR FRANCIS: And the circumstances or the situation depended on the circumstances?

MR VERMEULEN: That is correct.

MR FRANCIS: Say for instance the person fired at you, you had the right to defend yourselves?

MR VERMEULEN: That is correct yes.

MR FRANCIS: In cases where there was no resistance against arrest, you arrested the persons?

MR VERMEULEN: That is correct yes.

MR FRANCIS: And that was the new role of Vlakplaas?

MR VERMEULEN: That is correct yes.

MR FRANCIS: How did it happen then that you became involved in the murder or the blowing up of Tiso, taking the new role of Vlakplaas into consideration? He did not resist arrest, he was arrested, he did co-operate, why then was it necessary to blow him up?

MR VERMEULEN: That was not my instruction Mr Chairman.

MR FRANCIS: Do you want to tell the Committee then that if you received an instruction, it does not matter what the contents are, you would act according to the instruction?

MR VERMEULEN: That is correct Mr Chairman.

MR FRANCIS: Although the instruction may be illegal, although it has not been approved by seniors, you would still carry it out?

MR VERMEULEN: As long as the instruction came from my Commanding Officers, I would execute it.

MR FRANCIS: From whom did you receive the instruction?

MR VERMEULEN: I received it from Mr Rolf Gevers.

MR FRANCIS: From whom did Gevers receive this instruction?

MR VERMEULEN: I assume he received it from Col Eugene de Kock.

MR FRANCIS: You are not sure about that?

MR VERMEULEN: I am sure about that.

MR FRANCIS: Why do you say that you assume?

MR VERMEULEN: Because I was not there, I was not at Nelspruit when Gevers came from there.

MR FRANCIS: Was it normal that Gevers would give you instructions?

MR VERMEULEN: No Mr Chairman.

MR FRANCIS: From whom did you get your direct instructions in the past?

MR VERMEULEN: From Col de Kock.

MR FRANCIS: I put it to you that it was unnecessary to kill Tiso?

MR VERMEULEN: I can't comment on that Mr Chairman.

MR FRANCIS: And you couldn't have believed that you were acting within the scope of your duties?

MR VERMEULEN: I did that Mr Chairman.

MR FRANCIS: It was such a ridiculous instruction in contradiction to the new role of Vlakplaas?

MR VERMEULEN: I wouldn't say that, on grassroots level everything still happened in the same way, there was no difference.

MR FRANCIS: So, what Engelbrecht told you and told the other members, you never took that to heart and just carried on as before?

MR VERMEULEN: These instructions came from the Commanding Officer.

MR FRANCIS: I have no further questions.

NO FURTHER QUESTIONS BY MR FRANCIS

CHAIRPERSON: Thank you Mr Francis. Ms Patel, any questions?

MS PATEL: No, thank you Honourable Chairperson.

NO CROSS-EXAMINATION BY MS PATEL

CHAIRPERSON: Panel?

MR SIBANYONI: Mr Vermeulen, when the body was blown up, was Tiso in a laying or sitting position?

MR VERMEULEN: He was in a sitting position, Mr Chairman.

MR SIBANYONI: Is that the reason why you used the term that he was buddah'ed, he was buddah'ed?

MR VERMEULEN: Yes, some people called it, he was buddah'ed, that is the same position, yes, Mr Chairman.

MR SIBANYONI: Thank you Mr Chairman, no further questions.

CHAIRPERSON: Thank you. Mr Cornelius, any re-examination?

MR CORNELIUS: I have no re-examination Mr Chairperson.

NO RE-EXAMINATION BY MR CORNELIUS

MR VAN DEN BERG: Mr Chairperson, before Mr Cornelius completes his re-examination ...

CHAIRPERSON: Yes, of course, I forgot.

FURTHER CROSS-EXAMINATION BY MR VAN DEN BERG: I asked you previously whether you were stationed at Soweto, do you remember that?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: It is so that you were not stationed there, but you worked there?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: You say that you were transferred to the C-Section in 1985?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: And you confirmed that it was in October?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: And then you say at page 181 of the Bundle, paragraph 6 of your statement

"... I mostly worked in Soweto."

Do you see that?

MR VERMEULEN: That is correct.

MR VAN DEN BERG: Were you aware of the activities of Mrs Mandela?

MR VERMEULEN: That is correct, yes.

MR VAN DEN BERG: I don't have any further questions, Mr Chairperson.

NO FURTHER QUESTIONS BY MR VAN DEN BERG

CHAIRPERSON: Yes, thank you Mr van den Berg. Mr Cornelius, let's try again?

MR CORNELIUS: No further re-examination Mr Chairperson.

NO FURTHER QUESTIONS BY MR CORNELIUS

CHAIRPERSON: Thank you. Mr Vermeulen, thank you very much, you are excused.

MR VERMEULEN: Thank you Mr Chairperson.

WITNESS EXCUSED

MR CORNELIUS: This concludes the case for the applicants, Mr Chairperson.

CHAIRPERSON: Thank you Mr Cornelius. Mr Hattingh, do you want to ...

MR FRANCIS: Mr Chairman, I am not so sure, I needed to take instructions from my client, if she wanted to testify.

CHAIRPERSON: Oh, yes, thank you, would you like to clarify that?

MR FRANCIS: Yes please.

CHAIRPERSON: I wonder if we should not - would it create a logistical difficulty if we were to take the - yes, I think we are going to take the lunch adjournment at this stage for 30 minutes, you can deal with that and in the meantime you can prepare yourselves and we will deal with whatever is forthcoming after that, including the addresses. We will reconvene at half past one.

COMMITTEE ADJOURNS

CHAIRPERSON: Yes, Mr Francis?

MR FRANCIS: I have taken instructions, my client does not want to testify.

CHAIRPERSON: Very well. In that event, we will ...

MR VAN DEN BERG: Mr Chairperson, sorry to intervene before Mr Hattingh commences, I have been requested by my clients to place one item, not so much before yourselves because I don't think that you are particularly in a position to assist, but to direct more towards the applicants Gevers, Swart, Britz and Vermeulen, in respect of the family of Tiso Leballo. It is of crucial importance for the family that whilst they accept that they will never find the body of the deceased, because of what happened, it is important for them to go to the place where the deceased died and that, in that way they would be able to lay his remains, his soul to rest. They direct a request to those applicants to facilitate and to assist them in that process. That is what I have been asked to place on record, Mr Chairperson.

CHAIRPERSON: Yes. Mr van den Berg ...

MR LAMEY: Chairperson, in that regard, I don't foresee any problem. What I suggest is that Mr van den Berg liaise with me as soon as the family are ready to do it, and I will then contact Mr Gevers, I think he is the only person that I represent among those names, so that we can facilitate that.

CHAIRPERSON: Yes, we are glad to note that, in fact we want to encourage the parties to follow up on that and to do that. It is often from the perspective of the next of kin, one of the most important elements of the process. If you could, Mr Lamey, between yourself and Mr van den Berg do that and then we will actually quite encourage that. I know that if it is necessary, Ms Patel and the resources of the Committee are always available to assist, thank you. Mr Hattingh, have you got any submissions on behalf of Mr de Kock?

MR HATTINGH IN ARGUMENT: Mr Chairperson and members of the Committee, we have agreed amongst each other and Mr Cornelius and Ms Patel has indicated that they will be needing less time, after myself and Mr Lamey and Mr Francis and I think Mr van den Berg has also indicated that he does not need as much time, but that the three of us would take about three quarters of an hour and that we would each have three quarters of an hour and I would try to restrict myself to this time. For this reason Mr Chairperson, I will not completely address you about the legal aspects that can be applied here.

I have had insight into the Heads of argument that Mr Visser has set up and we have always agreed with the legal aspects, and in one of the aspects that I can specifically remember that I had seen, was a submission that he had made before you and Mr de Jager and I also know that on another occasion, he had also made a submission and this followed more or less the same trend, and Mr Sibanyoni was also present there, and I would then say that the legal aspects that are applicable here, the interpretation of the specific sections, had already been crystalled out to a large degree and that it is well known and that it is not necessary for me to brief you on this completely. With this in mind, I would request you to please allow me to look at possibly the most cardinal but also the most basic principle and to put this to the fore because it is so well known, one is probably inclined not to judge it to its value and in this case, as we all know, it is the case that this Act had been drawn up set against the background of the Interim Constitution, Act 200 of 1993 and that the aim of the Act was to achieve unity and reconciliation between the people of South Africa, where in the past it would be known by conflict, unknown suffering and it is also the aim of the Act to determine the truth relating to events of the past and motives and circumstances where violations of gross human rights, took place ... (no interpretation)

Then Mr Chairperson, in this regard, it is important to take into consideration that the then constitution determined that there a need existed for understanding and not a thirst for revenge ... (no interpretation); and also a need not to victimise anyone, but for human treatment. I am surprised every time when I appear at incidents, to see how much understanding there is amongst the victims or the families of the victims. I often ask myself the question, if it had been me sitting at the back there and had to hear how my brother or my father had been killed in such a gruesome way, what would my reaction have been, and I in all honesty have to tell you that I don't think that I would have been able to react in the way they reacted. This is what we all have to strive for. Reconciliation concerning the conflicts of the past, and in this regard we would also propose Mr Chairperson, that it is clear that the giving of amnesty is a clear link to be able to reach the aim of reconciliation and reconstructing if such offences can be placed into regard of the aims of the specific Act.

I respectfully submit Mr Chairperson that if one looks at the reasons of the Act and the aim of the Act in the Interim Constitution, one should not be set on giving a limiting layout regarding the applicants' applications. In connection with this, I also once again want to refer you to a judgement that has been held to you repeatedly and it is probably well known to you and this is the judgement in the case of AZAPO & Others v Presidents of the Republic of South Africa, 1996 (4) 671 at 698. There Judge Mohammed who according to me at that stage, was then being described as DP, I am not sure if this is Deputy President and he gives a judgement and he says - I am not going to quote, it is a very insightful judgement that he gives, which gives very good guidelines as to how the question of amnesty has to be approached, but amongst others he says Mr Chairperson that - "... in the result I am satisfied that the epilogue to the constitution authorised and contemplated an amnesty in its most comprehensive and generous meanings, so as to harmonise and optimise the prospects of facilitating the constitutional aims."

Chairperson, in a nutshell, what I am trying to tell you is that one must not look too critically at the evidence that has been given before you, in the sense that one must then look for reasons why amnesty cannot be given. This Mr Chairperson, is my impression and my impression would then be that this is the way that the legal representatives of the victims go about doing their work, that no evidence is presented by them, that would say or which might indicate that there is no political aim, that complete disclosure had not been made, that it was done for compensation or for personal gain or malice or any of these factors that would then lead to it that the applicants cannot apply for amnesty. No positive evidence is presented. The only thing that is done is that by means of cross-examination an attempt is made to gain evidence that would possibly point to one or two of these factors.

Our submission is Mr Chairperson, that you will not look too critically at the evidence. You must always bear in mind that we are talking here about events in this case that happened about seven and a half years ago. We are talking about events, if one gets to the scene itself, which happened in a very short time and during which apparently according to the evidence, chaos had reigned. It had to be a complete deafening noise, one can only think of the noise that one weapon makes, imagine how much noise ten automatically firing weapons must make. This noise must have been deafening and then of course also the explosion of the handgrenades.

And then we have to do here with people Mr Chairperson, not all people see the events in the same light, not all people have access to the same perception abilities, not all people have the same ability to be able to recall things in their minds, these are all factors that you have to take into account when you consider the evidence that has been given before you. It would have been wonderful if all these witnesses could have appeared before you and said exactly what he saw and what he remembers, and that everyone's version would then agree with the other persons'. This would on the other hand rather have led that one would be able to say that these versions have been discussed beforehand and an agreement had been reached about them.

Justice Nicholas who was known as a person who knew the law, he wrote in a DeReibus(?) a very insightful article about evidence and specifically about evidence that had been given by specific witnesses about the same event. In this he emphasised these factors that I have just put to you and one must expect that there would be differences and that some people would remember something different to what other people remember and then the question arises "who is talking the truth". I think I speak under correction, but I think that in this article Justice Nicholas mentions the question of "whose truth", the person who is giving evidence swears that he is telling the truth and he gives his evidence to the best of his ability as he can call the events to his mind. As far as he is concerned, he is giving evidence as he remembers it. He would then be giving evidence to the truth. Objectively, it might appear that he is completely wrong about a certain aspect and then objectively speaking, what he is saying would then not be correct, and in other words, not true, but this does not mean that he is not speaking the truth as he sees it. If it is then about speaking the truth and this is one of the aims of the Act, then one has to take into account Mr Chairperson, that it is not only about the truth about everything that had been said, but it is about the question of whether he is speaking the truth concerning the relevant facts. Facts relevant to the incident being treated at that time.

It is said that a man can always test a principle against an absurd example. If hypothetically speaking, Mr de Kock had been asked "did you in 1980 when you were driving with Klopper, did you drive over a stop street and were you then guilty of a traffic contravention" and he says "no" and then Klopper later comes and he says "yes, de Kock did drive over a robot and then he did give payment of admittance of guilt", then de Kock can be lying about this, but is this relevant? Can you say because he lied about a question that he drove over a red robot ten years ago, that has nothing to do with this incident, that for this reason he cannot receive amnesty? My submission is Mr Chairperson, and the Act is clear on this, that it is here a question of whether there is a full disclosure of all the relevant facts.

I will probably expand on this a little bit. And then Mr Chairperson, you have to be satisfied if you look at the stipulations of Section 20 of the Act, subsection (1)(f) -

"... if the Committee, after considering an application for amnesty, is satisfied ..."

these are the words that are used "is satisfied", and this is the only burden that rests on the applicants. What does satisfied means? In the determination of the Suid-Afrikaanse Pers Bpk v Nesser 1948 (2) SALR (295) and specifically on page 297 the learned Judge says the following -

"... Mr van Zyl for the plaintiff, has in argument given me a number of grounds which tend to show that the strong possibility is against the defendant's contention. In Rule 22(4) it is for the defendant to satisfy the Court that he has made a bona fide defence in the action. It is true, the authority show that this is not a heavy onus to satisfy. Satisfy does not mean proof. I take satisfied to mean therefore that the Court must feel that there is a fair probability that the defendant's defence is a good one. At any rate, that it is bona fide."

This is all that the applicants have to do here and this is specifically about setting out the rules, but specifically if one reads this judgement along with the judgement of Justice Mohammed that says the "widest possible interpretation has to be given", then we would submit that there is strong authority that the proof that is looked for is not a heavy proof and for this reason I would submit Mr Chairperson, that one has to guard against as it is called, to take a couch attitude and then in the calm atmosphere of this Committee room and with the advantage of having looked back at events that took place and then to be too critical about the question of whether the witnesses are telling the truth and if they are doing a full disclosure. It is against this background Mr Chairperson, that we are requesting you to judge the evidence given to you and to find if Mr de Kock has satisfied these prerequisites.

Mr Chairperson, a further aspect in general in judging the question if Mr de Kock had committed this offence bona fide, as meant in Section 20(2)(f) and also as it is spoken of about bona fide in Section 20(2)(b), I would submit Mr Chairperson, that the question, if he had done that bona fide to be able to overcome the political struggle, attention must be given to his subjective approach to the question of whether the offence was committed to be able to combat the political struggle. I would submit that such a subjective attitude would have to be judged against the facts as given in the written application and also the evidence that had been given orally before you.

We are aware of it and we have said it several times, this Commission, the Amnesty Commission, is not bound to previous judgements, but at the same time, we would submit Mr Chairperson, that while the constitution expects that everyone is equal before the law, that at attempt be made to achieve - I am looking for the word - to achieve a degree of equitable treatment. It would appear to me Mr Chairperson, if I read through the judgements of the Committee in the past, that the Committee do indeed try to apply the same principles consequently. For this reason Mr Chairperson, one finds in many judgements of the Amnesty Committee I can refer you to the St James Church attack where the judgement said -

"... they perceived (I would like to emphasise that) every white South African as a pillar of apartheid, protecting white South Africa from the black danger."

It can never be said that every white person in South Africa is a pillar of apartheid, or was a pillar of apartheid, but that is not the test, that is not the question. The question is how did these applicants see this case. What were their perceptions? In the judgement of Dhladla and Ndlovu, I can give you the numbers if you require them Mr Chairperson, it is said -

"... the applicants say that they carried out this attack with the intention of killing its occupants whom they believed to be members of the ANC."

Not who were members of the ANC, but who they believed were members of the ANC. In the Joseph Nkuna judgement, it is said -

"... the applicant conceded that his belief at the time that Tshabangu was an agent of the police, was based on a false perception created by the police themselves in order to cause division within the ranks of the ANC. At the time of the attack though, he bona fide believed that he acted in the furtherance of the political struggle of the ANC."

Once again, what did that person believe his aims to be? In the judgement of Smuts and Maree in August of 1996, the position is set out as follows -

"... it has already been handled, the motives of the applicants, subjectively seen, their motives were political of nature, whatever the objective judgement concerning this would be."

And then there is also a judgement of Motaung Sibiso Sithole Dlamini where the following is said -

"... it is clear from the evidence that they gave and from the evidence of the third applicant, that they believed the deceased what has come to be known as a warlord. This was their belief."

I believe that something has been left out here, but it concerns the words "this was their belief." Also in the Cronje judgement Mr Chairperson, which is a more recent one, which were set to us previously before it was delivered, that we could use it as an example of the Committee's approach regarding members of the Security Forces' application to amnesty, it is said that perceptions had been created by certain actions of Commanding Officers and Ministers and so forth as Min Vlok, the then Min Vlok and also Gen van der Merwe had also given evidence to and then on page 4 of the judgement it is said -

"... 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."

And then again on page 6 -

"... the Committee is of the opinion after hearing all the evidence about the total onslaught, the words used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended, that the ordinary lower rank policeman bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the government in power."

That was the approach of the Committee in the past, and I believe that if I went to look at the judgement in the meantime, that one could find many examples like this, and against this background, I ask you to judge these events.

Mr Chairperson, this would then bring me ...

CHAIRPERSON: Just before you close this Mr Hattingh, would your submission then be that the test is totally a subjective test, in other words it is only the belief in the actions that the person who executes the actions, has?

MR HATTINGH: No Mr Chairperson, I would hold to what Mr Visser said in his submission. In his argument he set it out very well, and I would then agree totally with this. It is not a totally subjective test, but the subjective state of mind of the applicant does play a very important role with the judgement of the fact that he acted bona fide in struggling against what he saw as an enemy struggle against the then government.

CHAIRPERSON: That is one of the elements?

MR VERMEULEN: Yes, that is correct Mr Chairperson. Mr Chairperson, then I just want to make the submission that naturally you would then approach the question if de Kock has satisfied these questions, you would then see the evidence not at the background of possible other inferences that could be made and to demonstrate this practically, I will handle this in its completion later on. If there were witnesses like Klopper who said that there had been policy in the past to pay the informer's money out only partially and then to pay out the rest to other people, then it is a possible inference that can be made, but then the question has to be asked where is the evidence that it happened in this case? This is what I mean with this? Your judgement must rest on evidence and not possibilities that has been discovered during cross-examination.

I would submit Mr Chairperson, that Mr de Kock acted as a member of the then South African Police and that he had reasonable grounds for his belief that he was acting within the scope of his duty and that his actions were within the scope of his express or possibly more important, implied authority. It does not have to be express authority, it could also be implied authority. His action was aimed against the ANC, who according to him was also busy, still busy with the struggle against the then government and I will submit that he acted bona fide with the aim of going against such a struggle. I would then also submit that tacit authorisation can be found in Exhibit C from page 60 where it is looked at actions by Vlakplaas members at own initiative and discretion.

CHAIRPERSON: Your case would then be that in this case there had been no express authority for Mr de Kock and Mr de Kock had acted on own initiative?

MR HATTINGH: Yes, he acted on own initiative and he had tacit authorisation. I will point out to you why I make the submission Mr Chairperson. In the first place, he was then already for more than seven years the Commanding Officer of Vlakplaas, who was under the command of other people involved in cross-border raids where other people were killed and under the command of other people, had blown up buildings in South Africa and after this, as Commanding Officer with authorisation from the Commanding Officers, were involved in several incidents where actions were taken outside the limits of the law where people were killed and property was damaged.

This happened right through his career with monotonous regularity. And now after seven years, he is a reasonably senior officer, indeed he is about two ranks away from the rank of General and seen in the light of what he had been ordered to do in the past, and in the past where he had not had specific instructions, where it had been condoned, that he could with all justification accept that he had the tacit authority to execute this operation.

CHAIRPERSON: Mr Hattingh, is it important that the time frame within which this event happened, in other words in 1992 at a stage when Vlakplaas had received a new role?

MR HATTINGH: Yes, I will brief you about that Chairperson.

CHAIRPERSON: So your submission regarding what happened and the instructions that he had and the deeds that he executed, is this submission aimed at the old Vlakplaas?

MR HATTINGH: No Mr Chairperson, this would then be regarding the authority that he had to take decisions himself, being under the old regime or the new regime. He did not have to go for authority with his Commanding Officer with every deed. This is done, this is explained in Exhibit C. This is the only submission that I want to make in this regard. He also had the authority to authorise such an act himself. Even though he did not have express authority for this, he certainly had tacit authority for this.

With the change of the political set up, I will specifically address this later on Chairperson. I have just arrived at the point where I want to look at the grounds for his belief that he was acting against the enemy as he had done in the past. Mr Chairperson, I have already referred to 20(2)(f) of the Act. 20(2) says -

"... in this Act, unless the context otherwise indicates, act associated with a political objective means any act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective ..."

may I just interrupt myself here by saying Mr Visser was here handling about the meaning of the words "associate, etc"

"... political objective and which was advised, planned, directed, commanded, ordered, committed within or outside the Republic during the period 1 March 1960 to the cut off date by ..."

and then it is said further the different categories. One of the categories is (b) -

"... any employee of the State or any former State or any member of the Security Forces of the State or any former State in the cause and scope of his or her duties and within the scope of his or her express or implied authority directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former State or against any members or supporters of such organisation or movement, and which was committed bona fide and with the object of countering or otherwise resisting the said struggle."

This is what (b) determines, but then it is important to look at (f), because (f) qualifies amongst others (b), because (f) says -

"... any person referred to in (b) who on reasonable grounds believe that he or she was acting in the cause and scope of his or her duties, and within the scope of his or her express or implied authority."

This would then also point my submission on the question of whether he was still authorised to act against the ANC irrespective of the question of whether the ANC had now been officially unbanned.

CHAIRPERSON: Would this not be a further category of people, is this not an extension of the circumstances in (b) where in a case where the person has no express authority or tacit authority, where he can then turn around and say "well, irrespective of this, I believed on reasonable grounds that this would be the case", in other words, it is a type of extension of the possibilities existing under (b)?

MR HATTINGH: But it is a very important extension and it could be read and I would suggest that it has to be read that if he based on reasonable grounds, believed that he was acting within the scope of his employment and within the scope of his duties, being express or tacit, then he would qualify and this would then also point to the question of whether he believed bona fide and based on reasonable grounds that "I was acting against an enemy of the State."

CHAIRPERSON: Yes, that is one aspect of this. What would your submission be, what is the category under which Mr de Kock would then fall in this case, would it be (b) or (f)?

MR HATTINGH: I would argue it in the alternative Mr Chairperson, I would say if not both, then definitely under one of them and then I would like to shortly address you on the grounds of the belief that he was acting against the enemy and it is as follows. I would refer you once again, I will not handle completely with you, under the heading "Vlakplaas - After the Unbanning of the ANC and other Political Organisation", on page 72. He looks completely at and he gives you a complete example of how this political struggle after the unbanning of the ANC had still continued.

He also gave evidence to this effect and he gave you examples. There were examples and examples that stand out is the Vula Operation that came to the light. Gen Nyanda's evidence that yes, they had continued with their planning and they would still continue with it if they were not caught out; the evidence that Mr Shabalala and Ndaba who had been arrested and whose arrests had led to uncovering Vula. I accept that they had been killed, I take it that it is currently being handled in Durban and this was our information that they had been killed by the Durban Security Police and that Goodwill Sikhakane had knowledge of this and that he had threatened to expose this operation. Now Mr de Kock receives instructions from Gen Engelbrecht, this is his evidence, "go and help Col Taylor" and he goes and he helps Col Taylor with regards to someone, because the killing of Mr Ndaba and Shabalala is counter to the specific minutes that had already been taken down. I do not want to admit at all that this contravention of the actions, contrary to the minutes that had been taken down, only came from one side, it also came from the government's side and this is an example of it, "we kill people involved with operations, even if that organisation that they are acting for, has been unbanned and now that our actions would possibly be exposed, then we kill the person who could possibly expose our actions". This is authorised from the top, from Gen Engelbrecht. There are numerous examples and a lack of time, does not allow me to go more into this. Mention is made of this in Exhibit C and I ask you to please take note of this.

Over and above this, he gave evidence that the political violence had continued, we all know about this and that if anything else, there had been an increase in political violence after the unbanning of the organisations as the parties now started arguing with each other about who will now take over, attacks on the police had drastically increased. We know that the Panel of this Committee has already investigated the murder of the house that had been used as a safehouse for the PAC, so that the PAC freedom fighters could enter the country and this was the evidence of Gen van Rensburg and Gen Engelbrecht and they had said "go and kill the people", long after the unbanning of the ANC. Brian Ngqulunga when he threatened at the Harms Commission to expose these actions, were killed and this was on the instructions of Gen Engelbrecht and Gen van Rensburg. All these things that I am saying is not me saying it, it is in Exhibit C, Mr Chairperson. I will just mention this as typical examples and under these circumstances Chairperson, I would respectfully submit that it was totally reasonable that all reasonable grounds had existed for Mr de Kock to believe on a bona fide basis that it was still the government's policy to act against activists of the ANC and other political organisations and under the circumstances, I would ask you that the fact that there had been an unbanning, is not so important and what is of even less importance, is the objective fact that these members, these people that had taken part in the attack, were possibly not members of the ANC. I am prepared to accept those who said that they weren't members, were not, but the fact of the matter is that information had been given that convinced Mr de Kock that they were activists and that they were acting on behalf of the ANC and that they were robbing on behalf of the ANC.

My submission is that this evidence is so overwhelming, it was said by van Zyl, Holtzhausen said that is was told to me and I conveyed it, all the other people had knowledge of this and there is no evidence to the contrary and there is no witness that came here and said that it was not said.

CHAIRPERSON: Mr Hattingh, is your submission regarding subsection (f) the reasonable grounds, that this can then also reflect on the belief of your victim?

MR HATTINGH: I would propose this Mr Chairperson, if one looks at the amnesty judgements that I have read to you and it has repeatedly been said that the people believed that every white person is a pillar of apartheid.

CHAIRPERSON: Yes, I heard the submission, I don't want to take up too much of your time, I just want to make sure that I understand your submission correctly.

MR HATTINGH: I have already used three quarters of my time almost, grounds for his belief that here he acted against the ANC, Holtzhausen informed him, van Zyl confirms that, all the others confirmed that. I have already made the submission, it was not whether they were really members, it was about the information and their subjective attitude.

I think I have already made these submissions. The following question I want to pose is that I suggest that Mr de Kock achieved in proving that he had a political motive in this regard, and I ask you to make this finding. Then we come to full disclosure. In my introduction I have already said about the relevance and the facts. What are the relevant facts in this regard?

The question is who killed these people, how were they killed and who were involved? The question of how they were killed, is of not so much importance, the question of those people who were responsible, were responsible for their deaths, it is in my submission not important to determine whether he was shot in the head or in the chest, the fact is that he was shot dead. It is not important to find did de Kock give instructions that that person had to be shot dead or not. In the end, this person was not shot, he was killed during this incident, because of the activities of Vlakplaas. Those are the relevant facts Mr Chairman.

I want to submit that he made full disclosure regarding those involved in this incident.

ADV DE JAGER: Is the only relevance not why they were murdered?

MR HATTINGH: With respect, this is the most important aspect, why were they murdered? There is no evidence which contradicts the motive except for the suggestion made that they did it for personal gain. There is no evidence which contradicts this, about what happened on the scene. There are various contradictions, but one could expect these, these are not substantial contradictions. In the broad sense these applicants support one another's testimonies, and we have an idea what happened in Nelspruit, we have an idea what happened at Penge Mine and we know who were involved.

Then I come to the question, and I submit that Mr de Kock made a full disclosure of all the relevant facts. The bus matter is relevant to this full disclosure and also about personal gain or additional motives. I want to submit if I can just refer back to the bus, this incident at Nelspruit was not planned to provide an excuse for Mr Aragio that he can institute a claim for the loss of his bus. The Nelspruit action was planned because according to Mr de Kock, his bus would have been used in any case for an action in Transkei and it would have been destroyed during that action. This little bus was just a way to achieve a goal. This bus, I want to ... (tape ends) ... even if you would find that Mr de Kock thought that "well, here is an opportunity to assist my friend", then that was not his motive for the action, that was an additional motive.

ADV DE JAGER: He is also not asking amnesty for that?

MR HATTINGH: He was accused of fraud, he was convicted of fraud, he is serving his sentence for that and he is not asking for amnesty for that. That is a separate fraud that he committed, should you find that his version is not true. The action was planned and only then it was decided that they would use the bus. They did not look for a reason to get rid of the bus and therefore the action was planned. This bus, according to my submission is just a red herring, it is not really relevant.

The question whether there was personal gain, according to my submission, there was no direct evidence that Mr de Kock gained financially or otherwise from this action. The contrary actually was proven, that he did not get any benefit from this action. He said "I was not compensated" and other people who were involved in the Nelspruit incident, they all testified that they received no compensation. If Mr de Kock agreed or acknowledged that he paid compensation for the people at Penge, why would he lie about compensation for the others. Before other Committees he acknowledged that he made certain payments to other members and he said in this case, it did not happen, there was no compensation. The only evidence was Klopper's who said that it was modus operandi. He said that after I had cross-examined him and I did not think it worth the while and even now, I don't think it is worth while to pay too much attention to that aspect because of the following reasons: Mr van Zyl testified that in various instances, the receipt signed by him for moneys received, was shown by members of the Investigative Unit to him, in other words the State had access to these receipts. No other receipt was shown to him, which was relevant to the same incident, there was only one receipt for the informer, regarding that specific incident, and that was the official one which they had in their possession. Mr van Zyl said the amounts reflected on those receipts, "I did receive that." At various opportunities Mr van Zyl did receive the full amount which was approved for compensation. This goes against the evidence of Mr Klopper that there was such a modus operandi. I refer you to Exhibit C once again Mr Chairman, under the heading Vlakplaas - Finances. That is on page 56 and there Mr de Kock fully describes the way they operated. Sometimes a claim was lodged for a false cash where R80 000 was paid out and R10 000 was given to Klopper and he said that the biggest part went to de Kock and if you read C, you would see that the gain there was used to pay for heart operations and to replace damaged vehicles and for various other reasons. That is what the money was used for. In Exhibit C he also said "at a later stage, I started stealing money for myself by means of false claims. Because of those activities, I have already been convicted, I am serving a sentence and I am not asking for amnesty for that." You should not be led by that evidence by Klopper.

I have also stated that it is the first time during his evidence, that such kind of evidence where a real informer provided information which bona fide authorised him to obtain compensation, that that was withheld. The evidence in the past was when you obtained money in a false way, you lodged a false claim under a fictitious informer, that happened repeatedly, that happened often and why would it not happen in this regard? Important also is not one of the persons who were at Penge Mine said that they received cash. If Mr Klopper is correct to say that R20 000 was paid out, R7 000 to van Zyl and R13 000 remained, one would expect that while Mr de Kock compensated those members, he would pay them from that amount, but he did not do that, he told them to lodge false claims and they were compensated in that way. In other words, there is no evidence to find that Mr de Kock received compensation for that action at Nelspruit.

I want to address you about van Zyl's evidence and the question of whether they really obtained R20 000, you heard my cross-examination where he first said "I can't remember how much I received" and in once instance he received R12 000, he only thought it was R6 0000, how he did not bank everything, how he crooked the Receiver of Revenue and all the factors pointing to the fact that he did not, could not remember what he had received. He could not remember that he had received R17 000 in cash and also his evidence that he did not receive R20 000, should be viewed with circumspection.

I am not saying that he is lying purposefully, but it is possible that he really believes that he did not receive R20 000 although he did. He did give a counterfeit signature, fraudulent signature and under the circumstances, he cannot say with any certainty that he did not receive that amount. But my main submission is that there is no evidence that Mr de Kock did not receive any compensation. This brings me to the further question and that is whether it can be said that Mr de Kock acted out of personal malice, ill-will or spite. The only possibly evidence in this regard is the Witbank incident. Here it was corroborated by Mr Swart who said that he and another member together with a few askaris were sent to investigate that incident. It was possible that he had the wrong perception, that he thought that it was the same people and perhaps some of the other members thought that themselves. Mr de Kock said that those were not the same robbers, Mr van Zyl does not say that he had information that these people were involved in the Witbank incident, Mr Holtzhausen said that that information was conveyed to him and that he had conveyed that to de Kock, so that there is no evidence that those were the same people and that was what was conveyed to de Kock on the basis of which he used those words about which Mr Klopper testified. You must remember although Mr Klopper said he had no malice against Mr de Kock and I must say there is no love lost between the two of them. During the trial, he went out of his way to incriminate Mr de Kock and now he is bound by the evidence he gave there, and he cannot deviate from that. Now, in his evidence before Justice van der Merwe, he committed perjury and therefore one should not give too much attention to his evidence. My submission is that Mr de Kock's version is supported by van Zyl and Holtzhausen, they had not this type of information and consequently there is no reason why Mr de Kock's reason in this regard, cannot be, should not be accepted.

And lastly Mr Chairman, much has been made of Gen Engelbrecht's evidence. I think I can shortly refer to this and state that he did not come to testify. He made, presented an affidavit which could not be cross-examined. In one amnesty application, Judge Wilson, when an affidavit was handed in and he insisted that this person had to be subpoenaed to come and testify and he did this on the basis that they could not reject Mr de Kock's version on the basis of an untested affidavit, not tested by cross-examination. Engelbrecht, where his name is mentioned, hands in an affidavit, he never had the courage to come and testify here. Every applicant who testify incriminated him in covering up and my submission is if you have to choose between those two versions, there really is no choice.

The version which should be accepted is Mr de Kock's version and under these circumstances, I want to conclude. I have exceeded my time with about 10 minutes, but my submission is that Mr de Kock complies with all the requirements for amnesty and I request then for amnesty on five counts of murder, conspiracy is not relevant here now and Mr Chairman, for practical purposes if he gets amnesty on five counts of murder, this is all he requires.

ADV DE JAGER: What about the lodging of false claims as compensation for what they did? Would this be something that could qualify for amnesty?

MR HATTINGH: Yes, it could qualify for amnesty, but Mr de Kock and this was number 9, he got four or five years, incarcerated for four or five years, he has already served his sentence.

ADV DE JAGER: He is not requesting amnesty for that?

MR VERMEULEN: He is not asking for that, that will have no practical advantage for him.

CHAIRPERSON: Mr Hattingh, is this offence proportional?

MR HATTINGH: My submission is Mr Chairman, if a person accepts that Mr de Kock really believed that he had to do with trained cadres, ANC cadres who committed armed robberies for the coffers of the ANC, my submission is that this action is proportional. Many other cases served before the Commission where the actions were much more severe than this one, the possible, there is no evidence that there was evidence that these people could be prosecuted for. The evidence indicates a lack of such evidence, the objective fact of the matter is that these people really wanted to commit a robbery, they did not go to Nelspruit for the pleasure. They went, they were at Coin, they asked for weapons, they would probably have not hesitated to use these weapons to commit the robbery and under the circumstances Mr Chairman, I submit that this action was proportional.

CHAIRPERSON: If I understand your evidence correctly, most of the people who were asked, said that they could have been arrested. They decided they had to be killed. They could have been arrested?

MR HATTINGH: Many of the people who got amnesty said that they could have arrested people, they could have arrested people, but they killed them. You know about the cases and in those cases they rather killed people with a political motive and my submission is that this action was proportional in its results.

CHAIRPERSON: Any other submissions?

MR HATTINGH: No thank you, and then I ask for amnesty on five counts of murder.

CHAIRPERSON: Thank you Mr Hattingh. Mr Cornelius?

MR CORNELIUS IN ARGUMENT: Thank you Mr Chairman. I have been allotted 15 minutes, so I will be brief.

Mr Chairman, if you look at the Act, it can be divided into Section 20(1) which is the basic requirements of the Act, Section 20(2) which is the persons or candidates that can apply and Section 20(3) which is the political objectives and Section 20(4) gain or personal malice.

First of all I would like to submit to the Committee that all four my applicants who I represent, obviously as far as Nelspruit is concerned, Swart and Hanekom and as far as Penge Mine, the two Explosives' Experts, Britz and Vermeulen, they have all complied with the formal requirements of the Act laid down in Section 20. They testified to that effect and there was no attack made in that respect either from the persons and legal representatives opposing the application. I think it can be found and I submit that we do confirm to all requirements.

Section 20(2), as far as the candidates are concerned, I agree with Mr Hattingh, we resort under Section 20(2)(b) and possibly Section 20(2)(f) as far as the implied authority is concerned. If you look at Section 20(2)(b) which I submit my footsoldiers, if I can call them that, resort under, we find cause and scope, authority, political struggle and bona fide intentions which need to be satisfied. As far as the cause and scope of duties are concerned, I humbly submit and refer you to the judgement of the Amnesty Committee which was given in the Khotso House and COSATU House incident where all the necessary references to the legal precedents are referred to as far as cause and scope is concerned. I have studied these and I submit that my applicants do fall under the cause and scope of their duties.

As far as the authority is concerned, it is clear that they did receive instructions from Rolf Gevers and also from Eugene de Kock and at all times, they acted in terms of the instructions they received. If you look at the political struggle issue, as far as Section 20(2)(b) is concerned, there can be no doubt that they felt that they were acting against the ANC and that they were prohibiting a robbery of a premises and also that the money could then not be used to further the political struggles of the ANC.

There can be no doubt that they acted at all times bona fide. We don't have any indication that they acted out of malice and they carried out their instructions to the stringiest details.

As far as implied authority is concerned, it must be remembered that most of the applicants were severely indoctrinated and brainwashed by previous actions in Vlakplaas, they received various decorations and SOE awards, they were further assisted by Gen Krappies Engelbrecht as my learned colleague, Mr Hattingh, said in covering up and drawing false statements, so they very much felt that any action that they would carry out, would most definitely be either ratified or be granted implied authority to act as they did.

As far as the proximity is concerned, we must keep in mind that there was already a previous attempt to rob the first Coin operation, and that was a support for the members of Vlakplaas and also for Murder and Robbery that they would definitely carry out their threats. They also expected that they should be heavily armed and I think it was fair of them to consider an ambush at that time, to reach the end that they in fact did reach.

As far as the evaluation for the action is concerned, we must remember that this is not a clear frolic of C10 on their own. We find that a discretion was passed by the Commanding Officers of C10 and also by the Commanding Officers of Murder and Robbery. Both units felt that it was necessary to follow the action that they in fact did and to set up the ambush to kill the people. We must keep in mind as far as their subjective reasoning is concerned, that they were briefed by Holtzhausen and by Chris Geldenhuys of the Murder and Robbery Squad and that both of them made it clear that they were acting against ANC activists who had a specific intention of robbery to fill the coffers of the ANC.

There was no reason whatsoever for my applicants in any way to doubt the information they received from Holtzhausen and from Chris Geldenhuys. Furthermore they obviously worked on a need to know basis, so it would have been not expected of them to query any of these instructions given to them.

It is my humble submission that in the opposition to the applications, there was only an attack made on the credibility of the witnesses, it is my respectful submission that my clients in their applications have not been broken as far as their credibility is concerned, or that they did not have political objectives, or that they did not make a full disclosure. I therefore submit that the Committee should in fact accept that they did make a full disclosure, that they had a political objective and that they were credible, truthful witnesses.

Furthermore I would like to refer the Committee to the fact, as far as instructions are concerned, to the evidence of Gen van der Merwe in the COSATU House incident, where he said he would expect that if an order was not carried out by anyone of the policemen, their lives in the Police Service would most definitely have been uncomfortable, that is recorded in the minutes, and I wish the Committee, draw the Committee's attention, that should be valid in coming to a conclusion. They did not act with personal gain in mind, they at the time when they received the instructions to carry out the procedures they did, they did not expect that they would be reimbursed and they did not have that personal gain as an objective in mind.

As far as malice is concerned, ill-will or spite, they all four testified that that was not their objective. As far as Vermeulen and Britz are concerned, with the desecration of the body and the killing of Tiso Leballo, it is my submission that they also came, prior to the killing, to the conclusion that there was a political objective to kill him. They did not just purely carry out the order and kill him, they were satisfied in their own subjective minds prior to that. I therefore ask that amnesty be granted to Vermeulen and Hanekom as far as the four murders - I withdraw this. Amnesty be granted to Swart for five murders, also as far as he is concerned, for the illegal possession of explosives and possible contraventions of the Act thereunder and then as far as his evidence is concerned that he in fact prohibited the proper course of justice, there should be amnesty granted for that, as well as Hanekom.

CHAIRPERSON: As your clients said in their testimony?

MR CORNELIUS: That is correct.

CHAIRPERSON: You led them on what you are asking for?

MR CORNELIUS: Yes, I led all four clients completely on what they are requesting.

CHAIRPERSON: You confirm that that is what they ask for?

MR CORNELIUS: I apply for that, thank you Mr Chairman.

CHAIRPERSON: Mr Lamey?

MR LAMEY IN ARGUMENT: Thank you Mr Chairman. Mr Chairperson, my learned friend Mr Hattingh, referred in his argument very shortly with reference to the role of Vlakplaas in the 1990's after the ANC was unbanned. Mr Chairman, the Committee and everybody representing applicants had the advantage of the judgement of the Jack Cronje matter, in which I want to refer you to the relevant passage. That is where referred to the conflict

"... it escalated into a full scale war although never a declared war, the fact that it was not a declared war, against an external enemy, caused the government to involve the Police Force to act against their co-citizens. The Police Act was amended and in terms of Section 5 thereof, the police was responsible for the internal security. Their functions were extended beyond the primary police function of combating crime. A Security Branch was created with the ultimate task of keeping the government in power. Keeping the government in power to enable them to work out a political solution if and when they could see succeed in doing so."

If we listen to Mr de Kock's evidence that a war was still raging for them, I want to make the submission that -

"... the ultimate task of keeping the government in power, to enable them to work out a political solution",

by 1992 on the date when this incident took place, it cannot be said that at that stage, a political solution had already been found. We all know that mention was made of the miracle which had taken place after the elections in 1994. If we look at what this Act intended and this Act foresaw a conflict, which went on until 1994, this was the period during which people were invited to apply for amnesty and a presupposition is entailed in this Act apart from Mr de Kock's evidence, and that is at that stage the war was still raging.

CHAIRPERSON: Mr Lamey, that Cronje matter, is that relevant to anything which happened after 1990? When did that happen, when were those deeds committed?

MR LAMEY: I am not sure Mr Chairman, what the time was, what the period involved was. This is about the function of the police and I want to return to the functions of the police pertaining to Vlakplaas after 1990 and after the ANC was unbanned.

CHAIRPERSON: You are not sure whether the Cronje judgement refers to the situation after 1990?

MR LAMEY: I cannot say that, but the point is, it is accepted as a fact that this was the objective of the Security Police to keep the government in place.

CHAIRPERSON: But does this refer to specific incidents?

MR LAMEY: My impression of this judgement is Mr Chairman, that here general things were found and I understood it that the applicant also testified that they should not lead evidence in this regard, certain submissions were made in this regard and findings were made regarding this position between the State, the Security Police on the one hand, and on the other hand the liberation movement.

ADV DE JAGER: Mr Lamey, it can only be pertaining to the period in which incidents happened, no evidence was led about what happened in 1995 or 1994, if this refers to a matter which happened in 1985?

MR LAMEY: It is so Mr Chairman, but my submission has not been completed. I will bring you back to what Mr de Kock said and how does this link with this part - if we accept that this judgement bears relevance to deeds before 1990.

CHAIRPERSON: You can go ahead with your submission, I am just asking you what the factual state is. We will look at that judgement again.

MR LAMEY: What I actually want to add is the following

"... policemen were sent to Zimbabwe and Namibia where they were engaged in battles. They did the work of soldiers, became involved in killing contrary to the normal police function of keeping the peace and combating crime, in accordance with the ordinary and customary laws applicable to the Police Forces generally."

Reference has been made and I think during my cross-examination of Mr de Kock, I don't want to repeat that, it is on page 27 where the appendix of Gen van der Merwe is there, referring to C10, the counter-insurgence training these people had and they were the only Operational Unit of the Security Police. People in command of that unit in the 1990's, this operational war experience was part of his whole being. Other operators formed part of this operation.

Then there is the evidence that there was no re-orientation and re-training of these people after the ANC was unbanned. I think it is against this background that these applicants as individuals and regarding their subjective beliefs, have to be evaluated. They were not in the position of the political analyst who could make a detailed analysis of the situation in the 1990's after the unbanning of the ANC. You have to accept that in their training, and they also say that in their applications, they were indoctrinated. There is no evidence which contradicts this, that regarding this, they were re-orientated. Even after they had become involved in investigating crimes, we ask ourselves why these arsenal of weapons were kept at Vlakplaas, why was this unit not disbanded earlier, why were the members not sent to become members of ordinary investigative units? This brings one back to what Mr de Kock says the situation on ground level was, "as far as we were concerned, the war was not over, there was still a war raging."

CHAIRPERSON: Is the problem not that they did not think it fit to even with Mr Engelbrecht, discuss the matter, then there would have been no problem to by deduction argue, that because there were weapons, because Vlakplaas was still there, they could still do as they thought they could do in the past? Is this not the real problem here?

MR LAMEY: Chairperson, then we do not have any evidence that after 1990, after the unbanning of the ANC, with the Chand house incident, definitive orders were given that was related to the combating of the political struggle ... (no interpretation). As far as they were concerned, their roles did not shift from what they were doing in the past in totality to investigate offences. Another component was added, regarding investigating crimes.

CHAIRPERSON: Did anyone say you can continue as previously but you also have to investigate crimes? I understood that nobody told them that, that is what I understood from their evidence, those were all deductions or inferences they drew.

MR LAMEY: If that was the intention of the people in control of Vlakplaas and the people higher up, and even the government, it there was really a serious intention to re-orientate and re-train these people, who they must have foresaw could cause problems, and all the wise people were sitting up there, they were the people who had to analyse the situation, they knew their people. If there was really this serious intention to move this unit away from the political terrain, one would expect that they had to give deliberate instructions from the top and that on grassroots level, things should happen to establish this.

We get the impression Mr Chairman, if you listen to Mr de Kock that even after the unbanning of the ANC, as regarding Vlakplaas, it was the Security Police although this judgement only relates to incidents before 1990, Vlakplaas was still the arm of the government to strengthen his hands until the final political solution was reached. It couldn't be otherwise, the government would have been made if at that stage, before there was a new constitution or before consensus was reached and before the trust at the negotiation table was established, that they wanted to take away the powers from the Security Police.

CHAIRPERSON: This is a submission that Mr Hattingh had also made. I just think and you don't necessarily have to concentrate on this, why if Mr Engelbrecht was the man who came to say that you now have to move over to crime, why was this thing not cleared up with him, such a drastic step in 1992, what would the problem have been?

MR LAMEY: Mr Chairperson, my submission is if one goes to look at the embarrassment that had already been created in Vlakplaas at that point and I think with respect and we also concluded from what Mr de Kock says, we are not just grabbing this out of the fresh air, I want to use this proverb that has also been used "the involvement of Vlakplaas in crime investigation, was probably more apparent than real". It is so, they did get involved in investigations, but I think it was only done in such a way that if the questioning had arisen again about Vlakplaas' role, then we can say, no these people are no longer C1, but it is now C10. They now resolve under the Crime Information arm and they are now doing investigations relating to crime. Here is the proof concerning what these people had done when it comes to normal investigation of crime. I think that to a large degree, this was a very well thought out plan to keep them with their one leg in the safety aspect and this is why the instructions did still come from 1990.

CHAIRPERSON: The so-called credible deniability? Would you then say that this is created for these people who are involved?

MR LAMEY: This is my submission, yes.

MR HATTINGH: Pardon for interrupting Mr Chairperson, but while my learned friend is on this point, could you please just bear in mind that on page 72 of Exhibit C Mr de Kock indeed did give evidence that he had suggested to Gen Engelbrecht that the unit be dissolved and that he said no, we will still keep you in readiness for in case the negotiations failed?

MR LAMEY: Yes, indeed. I also had that somewhere at the back of my head, but I could not place it in the statement of Mr de Kock. And then we also see that Gen Engelbrecht's involvement itself after this incident Mr Chairperson, if indeed he really was an independent court investigator, uncontaminated and with an open mind, then he regarding this action Mr Chairperson, would definitely have been able to have a reasonable doubt concerning Vlakplaas, even if we do ignore Mr de Kock's evidence in this case. He would have taken a lot more immediate steps to, if not fire these people, but to have them locked up. But it goes further, and it also handles, the information session in 1991 where Vlakplaas in its capacity as C10 was asked to give help to the Crime Unit and we also heard the evidence of Mr Gouws and Mr de Kock that at this information session, mention was also made of the elements within the freedom movements that committed these kinds of crime, like robbery. The submission that I have just made concerning the training of the members beforehand and also the context in 1991 to 1992, my submission revolves around what their subjective beliefs had been influenced by.

It also relates to the question of judgement and the element of proportionality. Another person, I would want to submit that another person possibly your pure court orientated investigator, would probably have approached this case in a different way. I would like to say that this factor is something that we must not approach from an arm's length approach, or an armchair approach, we must bear in mind the background against which de Kock and them were trained and then their attitude towards the fighting or combating of actions committed by people, connected to the liberation movements and especially trained members.

Together with this, the information that had been available that this action or this act went further than just members who were committing the robbery for their own personal gain, but indeed also for the funding of the ANC. Mr Chairperson, the submissions that Mr Hattingh had made, relating to the position of Mr de Kock, I think is also applicable to everyone serving under him and I share with him the political objectives. The applicants that I am representing were all under Mr de Kock and I think the fact that due to his leadership capabilities and his more informed position that he was in and also as the person who had contact with Headquarters, he was the person who could judge whether the information that they had received, was credible or not, together with Holtzhausen who he appointed as a handler. The applicants who I am representing apart from Mr van Zyl that is, chiefly followed the instructions of de Kock and also relied on what they had heard from Holtzhausen.

CHAIRPERSON: It would appear that de Kock just played a very peripheral role in this case, it would appear as if Holtzhausen was the person who actually moved this whole thing?

MR LAMEY: Yes, but the evidence does exist that Holtzhausen did keep de Kock briefed about the information, de Kock knew what it was about, he gave evidence himself and he said that he understood what it was about. It would appear that de Kock from what he understood from the information, was not misplaced. de Kock concerning as I understood the evidence, concerning the detailed aspects of the planning, de Kock just delegated, but it cannot be so that he was in the position of a Commanding Officer who did not have an idea about what was going on. At the end of the day, he was together.

CHAIRPERSON: But he had a very low profile. There were people who did even see him on the scene, so it wouldn't appear as if this was a true de Kock action?

MR LAMEY: Not in the sense of a real active role that he had played maybe in other actions. But if one thinks of the Chand incident Mr Chairperson, where you were not on the Panel Mr Chairperson, there for instance he also asked Mr Ras, one of the people serving under him, Mr Ras should come here and Mr Ras indeed knew the place, he observed the place and Mr Ras, indeed acting on instructions from Mr de Kock, and he continued with the planning and then de Kock was briefed every once in a while and then de Kock was also on the scene. But this is how it would appear to me, how the operations were delegated.

CHAIRPERSON: I am not talking about technical situations that de Kock could possibly have given the order, I am talking about the subjective belief of your clients, Mr Cornelius' clients who didn't even see him on the scene, where he had a very low profile. This is the angle that I am using when I mention this.

MR LAMEY: Yes Mr Chairperson ...

CHAIRPERSON: It would appear to me as if they heard more from Holtzhausen's side and from Geldenhuys' side than what they heard from de Kock.

MR LAMEY: Yes, this would then be from Mr Cornelius' clients, especially from Geldenhuys, but Geldenhuys was also according to me, connected or phoned along with Gouws to come down. Concerning the Vlakplaas members, I don't think any doubt can exist that they indeed were there on the instructions and the orders of de Kock. Indeed that they, that Holtzhausen were delegated by de Kock to be there.

The other submission that I would like to make is that a lot of questions had been asked about the funding of the ANC, as if this was an aim. Mr Chairperson, we heard this evidence independently from every single applicant. Mr Cornelius' clients even made the statements back then in 1996 to the Investigation Team and the only thing I want to say with this is that we have cases here where the applicants independently in their own amnesty statements, had mentioned this aspect as a motivation. With this I want to make the submission that every applicant in this aspect, is credibly backed by the other applicants, or supported by the other applicants, concerning the motivation for this action.

CHAIRPERSON: Van Zyl is the key in this case, when it comes to that part of the case, the contact with Tiso.

MR LAMEY: That is correct.

CHAIRPERSON: The rest is just stuff that they had heard, they heard it from this person or that person or "I believed, or this is the way I understood it", etc. Van Zyl is actually the person who is the primary source?

MR LAMEY: That is correct. Mr Chairperson, it is my submission or let me just make the submission from the point of view of the C10 members that I am representing and also Mr Gouws, who was a Murder and Robbery member, their participation in this action was accompanied then with the political objective as they had given evidence in every case and that it was together with the political objective that Mr de Kock believed in and also agreed with the way that he saw it.

ADV DE JAGER: Mr Lamey, under which category in Section 20(2) would van Zyl resort?

MR LAMEY: Mr Chairperson, I will come to Mr van Zyl just now, I just want to separately deal with my submission. I will get to him just now, may I just finally say something about the proportionality when it comes to the C10 members. I think we can easily think of reasons when we look at a situation afterwards to talk about arrest and so forth, but if we looked at the evidence in front of us, then there had been evidence that these people were out to commit a robbery. The question that arises with me is do you then have to wait until they have already executed the robbery when people could possibly in the process have been killed or injured? Would you then only effect an arrest when they do have the money in their hands, or if these people are planning robberies for the funding of the ANC and they had done this in the past, is this not from their point of view then a very direct connection that you can then, these people who are armed from your point of view and who are dangerous and who can commit these deeds for these aims, that you can then eliminate these people?

ADV DE JAGER: If they had waited until the people had committed these robberies and these people had shot and they wanted to arrest them and they had killed them, then they wouldn't have done anything wrong? Then amnesty wouldn't have been necessary, because then they followed the normal procedures? Here they acted wrongly and this is why they are applying for amnesty?

MR LAMEY: This is indeed so Mr Chairperson, this is of course the other leg of this point of view. The only thing that I am saying Mr Chairperson regarding the directness and the proportionality is that they believed although the people were led there, this is potentially dangerous people. They are prepared to commit a robbery, they are prepared to do it with weapons and from this, the people would have been prepared to eliminate any resistance. This is my submission Mr Chairperson.

CHAIRPERSON: I think the question regarding this proportionality and directness is if in 1992, if this was reasonable in 1992, to whatever the set up was to kill alleged robbers instead of arresting them, this is the question.

MR LAMEY: Mr Chairperson, no. In this aspect, I have to refer to Mr de Kock's evidence that there had been several incidents that information had circulated in their group that it had in fact happened that MK and also PAC members were committing robberies, it had happened during this time, after the floodgates had opened so to speak, after all these people had returned back to the country and I want to make the submission that I think this was one of the dilemmas that the police had been in, back then that these people are here in the country, they are coming into the country and this is the information that they had at their disposal that these deeds were being committed and how do we stop this? I think that this is why this incident took place, Mr Chairperson.

Mr Chairperson, to get to Mr van Zyl now, I am not aware of any judgement or cases in the past where a source applied for amnesty or that there was any judgement. I don't have the benefit of a precedent that I can refer the Committee to. I did however look at the recent judgement of the Khotso House incident where several references are made to authority relating to the idea "employee" and how it must be understood in this context and it refers to Mr Vlok who was not an employee in the strict sense of the word, but the Amnesty Committee found in the end that referring to this authority, that he under Section 20(2)(b) could be brought home.

ADV DE JAGER: This is one of the elements of employee, is one of these elements not control? Apart from a salary that you receive, Vlok received a salary from the State, he was under the control of the parliament, he was under the control of the Cabinet. Was Mr van Zyl in any way under the control in the sense that he had received a salary or that his daily activities, could be controlled by the State or by the police?

MR LAMEY: Chairperson, my submission if one looks at the question of liability, then it is not only the strict employer/employee relationship that in this regard, would always be relevant.

ADV DE JAGER: (a), he was not a member of the National Party, he was a supporter of the National Party. If you are telling me that you are relying on (2)(a), then one can look if he does resolve under this category. Under (2)(b), any employee in the employment of the State, do you want to say that he was an employee in the employment of the State?

MR LAMEY: Chairperson, if employee in the strictest sense of the word, should be interpreted, then my answer is no. If it is interpreted widely, then it is my submission that he was at least an agent of C10 for the aim that C10 had used him. They registered him as a source, he was a regular source of C10.

ADV DE JAGER: Let him be an agent then, but does the Act give us authority to give amnesty for an agent of the State?

MR LAMEY: I will refer you shortly to Section 2, my submission is that if we take a wider approach concerning employee, also flowing from the authority that is referred to in the Khotso House judgement, then my submission is it would not be far fetched to put a source of the police also within the framework of (2)(b). There is also an article in paragraph 20(2)(g) that refers to

"... any person who reconciles him or herself with any omission or deed, committed for the aims of (a), (b), (c), (d), (e) or (f)."

ADV DE JAGER: (Microphone not on). Does this not refer to an accessory after the fact?

MR LAMEY: The law does not limit it to that interpretation, he refers to any person which reconciles him or herself with any deed or omission committed in (a), (b), (c), (d), (e) or (f). For example, to mention an example -say for instance the use of a transitu house by the liberation movement across the border, we know that it was usually ordinary citizens who made those facilities available or who brought people over the borders and who assisted them, regardless of the fact that these people were not members of the liberation movement themselves. Those people reconciled themselves with those activities or those actions and this is where the Act goes a bit wider to provide an opportunity for amnesty for people who are not strictly within the framework of a regular member of supporter of a political party or liberation movement or in the stricter sense of the word, en employee of the State. This would have meant that other people who would not fall in this framework and who committed a deed somewhere else or assisted somebody ...

ADV DE JAGER: Would you say that if I assist somebody, I am at least a supporter of the party?

MR LAMEY: Yes, but I mean you could get somebody who could assist PAC infiltrators or ANC infiltrators, if it is somebody who associates himself not only with a specific political party, but you would be in a dilemma if it were not for paragraph (g).

ADV DE JAGER: I have the submission that he is under paragraph (g) or perhaps (a).

MR LAMEY: Yes, it could resort under (a). It is under (a), because of his close association with the State and specifically C10.

ADV DE JAGER: Are you arguing that he is under 20(b)?

MR LAMEY: The fact that he supported the National Party, had to do with his political affiliations or political orientation when he was the agent for C10 and how he viewed the ANC at the other side of the spectrum. But I would rather say with his close association with the State, with this arm of the State, that he would resort under (2)(b) or perhaps (f) because

"... the person who on reasonable grounds thought that he acted within the scope of his duties."

ADV DE JAGER: We understand that is your submission, and we will look at that.

MR LAMEY: Then I want to refer you thereto that there is a specific reference in one of the sub-paragraphs under 10(3)(e)

"... whether the act, omission or offence was committed in the execution of an order or on behalf of or with the approval of the organisation, institution, liberation movement or body or on behalf of ..."

in other words, if you do something on behalf of that instance.

ADV DE JAGER: But (3) only determines what your motive was, whether the deed was associated with. Before we get there, you have to be put in a category under (c).

MR LAMEY: That is so, yes.

CHAIRPERSON: Any further submissions?

MR LAMEY: My submission is further if you look at the broader meaning of the Act, if you don't give this interpretation to that, you can't think of various sources who assisted or provided information either to the liberation movement or to the State, that very few of them would qualify for amnesty if they could not resort under 20(2), if they couldn't be put under a category under 20(2). I would suggest that that meaning, we also read when you look at the wording in 20(3) where reference is made to an agent. 20(3), why would it refer to an agent if that does not indicate something in 20(2)? In 20 (3)(e) where it refers to personal gain, if exceptions are made regarding personal gain and the sources of the informer, something should not be excluded if he received something valuable. This is what the legislator saw that these people did something for compensation and made provision for that under this personal gain.

CHAIRPERSON: Any further submissions?

MR LAMEY: Regarding Mr van Zyl, the evidence is clear that he was compensated for information provided, there is no evidence that he would be compensated if persons were murdered. No mention was made that somebody was murdered and this compensation was based on his continued loyalty. This is proven by Exhibit G and that the interim compensation of R20 000 would be paid to keep his loyalty and interest. It is clear that his compensation was attached to his reliability as source and the information that he provided. It cannot be said that Mr van Zyl ...(intervention)

CHAIRPERSON: There was no head money?

MR LAMEY: His involvement was not about personal gain regarding head money.

CHAIRPERSON: We understand, yes.

MR LAMEY: It is also clear from the evidence that his further actions was under the control of C10 and they told him "continue, continue", and it is my submission that it rested with the discretion of Holtzhausen and de Kock that at one or other stage, they could stop him if they wanted to, they could tell him "stop it, we are not interested in the information", and then for example when he got involved in the ambush, his evidence was in that respect that they did not have a problem with that, and my submission is that against the background from where he came, his political orientation, his previous involvement with the State, Murder and Robbery person who was involved in investigating these type of offences, in which political motives played a role, it is understandable that he would associate himself with these actions and also seen in the light that he was also the source of that information. Mr Chairman, I don't know whether there are anything else you would like to ask me regarding Mr van Zyl, then I would address you.

CHAIRPERSON: I have heard your submission regarding Mr van Zyl.

MR LAMEY: Regarding the R20 000, no motive can be linked to him that he was not a true witness. It was his bona fide conviction that he did not get R20 000. He provided reasons for that. He could easily have implicated Mr de Kock here if he wanted to. In the de Kock trial, that of which Mr de Kock was convicted, is not that he cheated Mr van Zyl, Mr van Zyl, it is my submission that if we look at him as a person, how he acted, that he was a trustworthy witness. Things which was written in Holtzhausen statement regarding Mrs Mandela, he said no, it does not go so far. In other words it is difficult to think of a reason why Mr van Zyl purposefully wanted to be not a reliable witness regarding the amount of money. Why would he on purpose tell a lie that he received R7 500 instead of R20 000? In general I want to submit that all the applicants were good witnesses, they trusted the Committee, they made a full and frank disclosure. They gave evidence which was not popular on both sides, and that is my submission, and that is an indication of the honesty and the full disclosure they have made.

ADV DE JAGER: Mr Lamey, time has elapsed, unless there is anything urgent.

MR LAMEY: I am finished with my submission.

CHAIRPERSON: Yes, good timing.

MR LAMEY: Mr Chairperson, may I just ask, I did not give a list of the specific technical aspects, can I just send it by fax to the Committee regarding every applicant because there is a distinction between the various applicants?

CHAIRPERSON: In the meanwhile you have given a basis of that, some of these things are technical of nature. You can send it to us later, as soon as possible. You are free to do that.

MR LAMEY: Thank you Mr Chairperson.

CHAIRPERSON: Mr van den Berg?

MR VAN DEN BERG IN ARGUMENT: Thank you Mr Chairperson. I want to submit Mr Chairperson, that the following aspects of this matter, are common cause or are objectively ascertainable from the facts before you. Firstly that four people, Oscar Nshota, Glenek Masillo Mama, Lawrence Nalinda and Corna Cabella were killed at Nelspruit on the 26th of March 1992. Secondly that Tsitetso Leballo was killed at the Penge Mine on the 26th of March 1992. The information which led to the deaths of these people, was conveyed to the police by van Zyl. The information was conveyed directly to Sgt Holtzhausen, a member of C10 and a person under the command of the first applicant in this matter, Eugene de Kock.

There was a first attempt at a robbery during February 1992. There was a second attempt on the evening of the 25th and 26th of March 1992. I want to submit that on the facts before you in respect of both of those incidents, neither of those attempts would ever have come to fruition. The evidence is clear in respect of transport being provided, target identified, the information conveyed to the potential robbers. It is also common cause that those who participated in the killings at Nelspruit and also common cause, those who participated in the death of Tsitetso Leballo at Penge Mine. I want to submit that it is common cause that there was no attempt or never any planning made to arrest the deceased. I want to go further than that and suggest that there was never any attempt to arrest at either of the incidents, that at Coin during February 1992 or in fact when the persons were arrested.

CHAIRPERSON: Mr van den Berg, is there any evidence that exactly the same group was involved in both attempts?

MR VAN DEN BERG: There is no evidence in respect of that Mr Chairperson. There is only the suggestion that it may not have been the same people in the untested affidavit of Ndimande.

CHAIRPERSON: Yes, but certainly not on the evidence that have been presented?

MR VAN DEN BERG: No.

CHAIRPERSON: Yes.

MR VAN DEN BERG: It is also common cause that two AK47s were planted and that handgrenades were planted in the vehicle. This entire incident arose from information which van Zyl obtained from Tsitetso Leballo, either directly himself or through his employee, Ndimande. I put it to van Zyl and I cannot recall, I don't think that he conceded it, but I put it to him that a lot of what he had or what he conveyed, was based on assumption, was based on deductions which he made, "I accepted it like that, I assumed it was like that" and similar type of phraseology. How much weight we can attach to the information that was conveyed to the police, I do not know. The other side of the chain, Sgt Holtzhausen ...

CHAIRPERSON: Sorry, just before you move away from the weight that could be attached to the information, we also have his dealings with Tiso, comes with baby powder, apparently a big talker who never really got involved in anything right up to the very end, he was testing van Zyl obviously, even on van Zyl's own concession, Tiso never trusted him. He tested him right to the end, he had to handle the gun, put it in the boot, all those kinds of things. Don't all those things also affect the weight that could be attached to the information that was used to launch this attack?

MR VAN DEN BERG: That is indeed so Mr Chairperson, and if you take it a step back to the actual robbery which was allegedly going to be carried out, you then look at requests for transport, you look at requests for weapons, you - it goes so far that van Zyl in fact identifies the premises, assists in the reconnaissance of the premises. It is best summarised in the evidence of one of the applicants, Nortje, where in a direct question from myself he said "we put them up."

ADV DE JAGER: The fact cannot be disputed, they went to Nelspruit, they didn't go (indistinct), that they went for a picnic to Nelspruit or for any other reason than to rob? Not even a suggestion, not even (microphone not on)

MR VAN DEN BERG: It is very difficult to make deductions from what caused this group of people to go there. We don't know from their perspective, what it was.

CHAIRPERSON: Tiso wanted quick money? That seems to be his overriding motivation.

MR VAN DEN BERG: Yes, it is the difficult question when you are dealing with entrapment as to how much of it is voluntary, how much of it are you being directly solicited, it is the difficult question of had the opportunity not been presented to you, what would you have done or had a different opportunity been presented to you, how would you have dealt with it? It is that aspect which is, well, it is one of the aspects which puzzled certainly my clients as to how their sons came to be involved in this thing, there is on my instructions, no history of this kind of conduct or activity. I cannot really take it any further than that, Mr Chairperson.

CHAIRPERSON: Yes, we've got your submission, how it relates to the weight. Very well.

MR VAN DEN BERG: On the other side, you have the evidence of Holtzhausen as to what was conveyed to him and that which he then in turn conveyed to the other applicants. Holtzhausen, if my memory serves me correctly, was dealing with van Zyl on the basis that a robbery was going to take place. There may have been some information about an ANC link through Leballo. What is certainly clear is that the moment the Winnie Mandela connection arose, his interest changed. Holtzhausen's evidence as I understood it, was that with the first incident there would have been an attempt to arrest. Obviously where the people were killed at Nelspruit, it is common cause that that was an ambush and the intention was to kill.

If one looks a little closer at the evidence in respect of Coin, both Gevers and Gouws as I understood their evidence, were quite clear that there was going to be no intention to arrest. Holtzhausen's instruction to them seems to have been that "shoot first". It is one of those myriad of contradictions in this matter and Mr Francis will address you in more detail on whether there has been a full and frank disclosure here. My submissions in this regard are simply in respect of the information and I want to suggest that the information which was conveyed from van Zyl, was inaccurate and that the way that it was conveyed from Holtzhausen to his men, was also inaccurate.

I want to suggest that it comes back to the evidence of Nortje and as confirmed by various of the other applicants, that these people were set up. I want to suggest that there was no political motive here, that a political motive came in at a later stage possibly, when there was a connection in respect of Mrs Winnie Mandela. If one has specific reference to the affidavits deposed to before the Attorney-General, the Special Investigations Unit, there is little and in some cases, no mention whatsoever of an ANC or a political connection. It is fuzzy if you look at Gevers when he talks about an ANC/PAC connection, Nortje whilst he is quite explicit in his application in respect of political motive, when he testified here, he used words to the effect that "they did it for their own gain and for their own interest". You can have a look at the way it is set out in the other applicants, for example Gouws at page 87 and Britz at page 18.

Referring specifically to the first applicant, Mr de Kock, you have been referred to Exhibit C and pages 72 and following in respect of political motivation. If this had been an incident which involved ANC cadres in an operation like for example Vula, if it had involved ANC cadres smuggling weapons for the SDU's, there may have been some debate here. My submission Mr Chairperson, is that this was a robbery, this was an act of pure criminality, that was the applicants' perception.

I want to deal not with each aspect of Section 20(3), but I do want to deal specifically with the question of proportionality because that is an aspect which has affected both the families for whom I appear. You will recall that in respect of Nalinda and the other three occupants of the minibus, or the kombi, that once they had been shot, petrol was poured into the vehicle. We never got to the bottom of the motivation therefore. de Kock says that it was, well, that he wasn't really part of the planning, but had he been consulted on that, he would have okayed it. Frankly that makes no sense. Nortje can give no proper explanation for why he says that there was a request as he recalls and he sent Radebe or Sefadi to go and get petrol.

There was a suggestion by Holtzhausen which if I recall correctly, he later disavowed as to the need to tamper with forensic evidence. It seems with respect Mr Chairperson, to go beyond the pale, there was no need to desecrate the bodies in the fashion that they were in fact desecrated. You will have, if you have reference to the bundle of documents in the matter before you, and towards the end thereof are the post-mortem reports. I want to refer you specifically to page 363 where a body was pointed out and if you have a look at paragraph (ii)(b) that -

"... this is the body that was identified to me by Sgt Swanepoel of the South African Police, Nelspruit as that being of (Tsitetso Leballo) Corna Cabella."

The bodies were so badly burnt that identification of the bodies were practically impossible and you get this mis-identification. Secondly, if you have a look at the incident involving Tsitetso Leballo, the body was completely destroyed. It wasn't blown up once, but if we understand correctly, it was blown up two or three times. Again Mr Chairperson, my submission is that this is beyond the pale.

CHAIRPERSON: Was he dead or alive at that time?

MR VAN DEN BERG: Mr Chairperson, I couldn't work out from the evidence whether he was dead or alive, the suggestion from most of the applicants seem to have been that he was in fact deceased, that he was in fact dead. There was a period of some five or six minutes during which his clothes were removed and which he was prepared for the explosion and during that time, it appeared that there were no signs of life. We never really quite got to the bottom of whether he was shot in the chest or in the head and that might have been indicative of whether he was alive or not. If he was shot in the chest, it is possible that he might have survived it.

CHAIRPERSON: Yes.

MR VAN DEN BERG: I want to submit just in summary Mr Chairperson, that the political motive in this matter, is non-existent, that it is produced ex post facto to meet the requirements of the Act under which you are obliged to consider the applications, that further in respect to that, neither van Zyl nor Holtzhausen was satisfactory witnesses. Then in respect of Section 20(3) the manner in which these people were dealt with, is disproportionate.

ADV DE JAGER: Suppose we would agree with you in the sense that van Zyl and Holtzhausen were not satisfactory witnesses, how would it affect the other applicants, they relied on what they were told by either van Zyl or Holtzhausen?

MR VAN DEN BERG: Mr Chairperson, I wasn't going to address you on each and every applicant.

ADV DE JAGER: Let's sort of refer to them as footsoldiers, what about them?

MR VAN DEN BERG: Mr Chairperson, I think that some of the footsoldiers may well have believed the information which was conveyed to them and that they might well have been misused in that regard. Others for example, Nortje and Gevers, there can be no suggestion that they in fact believed the information that was conveyed to them. Those whose involvement seems to be limited to a cursory briefing session at the Drum Rock Hotel and then a further briefing session at the actual scene where this took place, there may be scope for argument. But again Hanekom's testimony in that regard is quite insightful where he suggests that they were misused. Had he known the true facts, he would have considered his position differently.

Mr Chairperson, I don't want to take up any more of your time, I know that Mr Francis has quite a number of issues on which he wishes to address you and without having discussed them at length with him, to a very large extent my clients associate themselves with those submissions and they can be regarded as having been made on our regard as well. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr van den Berg. Mr Francis?

MR FRANCIS IN ARGUMENT: Mr Chairperson, I think my client aligns herself fully with the submissions made by Mr van den Berg, but let's Mr Chairperson, ask yourself as to why was de Kock charged with all these counts and especially for the Nelspruit incident, especially when the argument is that he was acting I think in the cause and scope of his employment. Vlakplaas in fact knew, his seniors in fact knew about this whole thing. Why then charge him with this? Why then get witnesses I think who had taken part in the killings to testify against him, if it was authorised at high level? I think the obvious answer must be that he was charged because this was a criminal act on his

part. It is not political, it is basically just clothed I think with politics to suit himself and the other applicants to get amnesty.

Let's first, the submission I think that I am making is that this was purely a criminal act performed by Vlakplaas and that at a later stage I think they came up with this whole suggestion to let it look as if it is political. Let's take it further, that it was also I think done to benefit the Vlakplaas boys, that includes Mr Aragio, that is Mr de Kock's friend, he was in financial difficulties, IGI in fact paid out an amount of R17 000 and a portion thereof disappeared. Let's take it further Mr Chairperson, let's look at what Holtzhausen said in Exhibit B and that is on page 4. I think he said the following -

"... at two of the robbers we found weapons, the third person's body, I placed a handgrenade to make the whole incident look like a political incident. There were no clear or physical indication that the robbers did have a political motive for this robbery although all information indicated towards this."

Take it further, compare this with Nelspruit, two AK47s were planted by Holtzhausen who also refers to the planting of this in the Carousel incident, two handgrenades were planted. For what reason Mr Chairperson? To let this look like a political incident? ... (tape ends) ...

"... I realise that it was a big mistake".

I still don't know why the people I think who took part in the Carousel incident, was still not prosecuted because that was cold blooded murder? The similarities are there and I don't want to burden you by appointing out what the similarities were between the Carousel and Nelspruit.

CHAIRPERSON: Yes, you have dealt with that extensively in the evidence, yes.

MR FRANCIS: Mr Chairperson I think I submit that the other applicants who were granted 204 indemnities, saw this as an attempt, a last attempt to try and get their Commander amnesty. I think we all know that de Kock believe that some of them were traitors and I think he mentioned that some of them were traitors but that he had said to them at one stage that they will have to follow their own, or they will have to be led by their own conscience. This I think I believe was a last ditch attempt to save him, and it was quite clear I think when one considered and looked at the evidence that was given by Holtzhausen. He was evasive, especially evasive I think when he was cross-examined by the families or the representatives of the families. I think when he was cross-examined by the police representatives, I think he was able to answer things. He was able to refer to the application or his affidavit, but when it suited him, he had a memory lapse.

Mr Chairperson, I think I need to deal first of all with whether or not this act performed was in the cause and scope of de Kock's employment and I think it is also on the record that Geldenhuys and I think I gave a portion of his testimony, had mentioned that the role of Vlakplaas in fact changed. He was present at one of the meetings, I think that was addressed by de Kock and by Engelbrecht himself and there Mr Chairperson, I think it was spelt out what the new role of Vlakplaas was going to be. That also was confirmed by Swart and it was confirmed I think by Klopper himself and some of the applicants, that the role of Vlakplaas had to change and it did in fact changed, and I think Engelbrecht himself and I think I referred during my cross-examination to Engelbrecht's affidavit, where he said that at one stage, the role had changed completely, where they had to be a backup for the various units of the police. I think it was also mentioned that they then also worked through a network of informers.

Mr Chairperson, I think Mr de Kock himself I think, and I think we were referred to Exhibit C where he dealt with whether or not he had been given authorisation to take part in this act and again I think to refresh your memories, I think he said the following -

"... actions authorised by me without express authority from my Commanding Officer, was also after the execution thereof, covered with aid so that the Security Police's involvement would not be exposed."

Then he gives examples and he says one of this was the Nelspruit incident. He says why I know, how I know that I had authorisation for this, it was cover up. Because it was covered up, one should therefore say that there was tacit approval for this. But let's take that further Mr Chairperson, and look at the information note which was prepared by Mr de Kock. I think it was on page 375 and 376 where de Kock I think in his evidence conceded, I am not so sure if he conceded, he gave two different versions. The one version I think to Mr van den Berg was that the information note was I think true and I think to me he said that it was false, or it could be to me it was false or true, but he basically gave two different versions. Obviously if he lied to his superiors about the purpose I think of this whole operation, should one now expect to believe him that he said that the superior basically gave his consent when he refers to the information note about having obtained information that these smugglers were going to get weapons from Komatipoort and would then take it through to Pretoria where a robbery would have taken place?

ADV DE JAGER: ... expect an information note on any of the files of the Vlakplaas unit or the Security Police that would state "we have today murdered Mr X"?

MR FRANCIS: Well, if it was a policy of Vlakplaas to kill members of the ANC who were involved in stealing money for the coffers of the ANC, I think one would expect that, because it is approved in high places.

CHAIRPERSON: On the other hand there is also you know, indication that some of these things were just verbal. If it is really illegal, they wouldn't bother to write all these things and they would simply just get the authorisation and not bother with information notes and things?

MR FRANCIS: That is true.

CHAIRPERSON: So an information note seems to relate more to something which you want to put into the channels, you want authorisation to move from here to there.

MR FRANCIS: That is correct, but let's compare that with Exhibit H or it could be J, where the false claim was lodged and sent to Head Office. It also I think contains information that de Kock had received information that these robbers were going to get weapons in Komatipoort, a roadblock basically was put there, the robbers fired at them, they got killed in the process. Three of the robbers I think were basically on the loose and there was a request I think that provisional compensation should be acquired. That information I think was sent to Head Office, again which I believe I think and I think van Zyl himself mentioned that most of the information was contained in it, was false.

CHAIRPERSON: In any event, I mean the fact here is that Mr de Kock himself says that he never had any authority, express authority from anybody, that was his own thing, this operation?

MR FRANCIS: That is correct.

CHAIRPERSON: So he never attempted to get any authorisation at all, so one must assume that that false note must have been brought to the attention of his superiors on the basis that it is true? He never approached any of them in connection with this matter.

MR FRANCIS: This is true. Mr Chairperson I think even if one looks at Engelbrecht, I think Engelbrecht at no stage I think mentioned that he had ever authorised the Nelspruit incident. Obviously I think one would have expected I think de Kock to have called one of his superiors who would have said "look here, yes, these people were acting on my instructions".

ADV DE JAGER: ... remember any incidents except perhaps Khotso House where it was ever admitted that anything was authorised by the Generals or by the Cabinet or by the President?

MR FRANCIS: I think Khotso House is different, I think Khotso House there was a clear political motive, and I think Khotso House I think is where COSATU and I think some of the activists were operating from. That I believe is different and I think people had referred to what Mr van der Merwe had said I think about members had to act on a need to know basis. I think he was asked as to what would happen if a member had refused to act on that need to know basis, and he said nothing really, it is just that the person I think would have been isolated. But the person would not have killed, no steps would have been taken against him.

Obviously I think Mr Chairperson, there is not an onus on the victims to prove that de Kock and the others did not act in terms of the Act, the onus I think was on the applicants to prove that they basically fell squarely within this thing. I submit I think that it has to be proved I think on a balance of probabilities. Mr Chairperson, I think I submit that on this very first hurdle, or before I make a submission, I would also mention to Mr de Kock that at one stage Sandra Mama had brought an action against him and that one of the defences that was raised by the State Attorney who acted for the police was that the act performed by de Kock and I think at that stage we had quoted six other persons, was that the act performed was not done within the cause and scope of his employment.

I submit that just on this hurdle alone, I think on this leg alone I think, de Kock should not qualify or should not even get amnesty for this, but let's take it further. Let's for argument sake say that he was acting in the cause and scope of his employment and we then look at whether or not it was proven that the act performed was against a political organisation. Mr Mama himself was not a member of any political organisation. I am not so sure what the struggle I think would have been against Mr Mama, who was not acting for any political organisation. I don't have an answer for that, I don't know, because I think even van Zyl himself said that he assumed that the other persons I think were members of the ANC.

CHAIRPERSON: I think Mr Hattingh, Mr Hattingh has in a sense when he responded to the question of proportionality, he in a sense conceded that they haven't established the political affiliation, yes.

MR FRANCIS: Mr Chairperson, I think was the act performed for personal gain and I submit that it was. Mr Nortje I think mentioned that he later realised that Mr de Kock had other motives and it was to benefit I think his friend. Mr de Kock I think in his application said that he made sure that the BMW, that is now another BMW and the kombi was insured. Why would you make sure that it was insured, or that it is insured? You obviously make sure that it was insured that if the vehicle is going to be destroyed, your friend will benefit from it. Obviously I think when we talk about personal gain, it is not just limited to the applicant himself, it could probably be broadened to include I think friends and not just the person concerned.

Let's take it further Mr Chairperson, the evidence I think of Klopper was quite vital, crucial here. He was initially asked by Mr Hattingh as to why would there false claims done and I think initially he gave the impression that a false claim was done just to benefit, it was just to beautify Vlakplaas, but I then asked him whether or not he had benefited I think personally from this whole thing and he said yes, you know, we had over 200 and 300 you know, false claims where we benefited from this whole thing and he took it a step further Mr Chairperson, he said that in this instance, Mr de Kock himself would take the lion share. Even in cases I think where there were, where Vlakplaas were given legitimate information by informers, Mr de Kock himself would take the lion share. I know that the argument was raised that there is no evidence before this Commission that Mr de Kock in fact did benefit from that, of course I think there wouldn't be any such evidence, especially if one bears in mind what Mr Klopper said. He said look, the claim would be submitted to Mr de Kock for authorisation, it would be sent to Head Office where it will be approved and from there it will basically either go back to Mr de Kock who in turn will give it to the handler, who in turn will hand it over to the informer. I think Mr de Jager asked what form would the informer sign and he said "look, he will be given another form that will either indicate that he either indicate R7 000 or R6 000, but the form that we will sign and we have used a false name, would be for the full amount, and that would be sent back to police Headquarters." I think what the police Headquarters I think found in this instance was that Ben Mokaba had received an amount of R20 000.

Van Zyl himself was quite clear about the form which he had signed, he said "the form that I signed did not have any official emblem on it, to indicate that this was money coming from the police, it was basically just on a sheet of paper and I basically signed that I received X amount and that form was taken back", that is in fact why we don't have this form. I think de Kock and them would have been quite silly, still to have kept the form that stipulates that this person received R6 000, it would basically just have shown that they must have taken the balance thereof.

Mr de Kock I think himself I think also authorised again Exhibit J and I think it is well and good now to say look, what proof have you got that Mr de Kock did not get the balance of the R13 000, when Klopper himself said that this was basically a practice and this is basically how we operated at Vlakplaas. The only inference Mr Chairperson, that needs to be drawn here is that Mr de Kock himself and Holtzhausen, must have benefited from this whole thing. But let's take it further Mr Chairperson, I have put to Mr Holtzhausen what charge 9 was in the criminal proceedings, and charge 9 was that him and Holtzhausen were charged with fraud, alternatively theft in that they submitted this claim and the State basically paid an amount of R20 000 and Mr Hattingh later, I think I submitted the relevant portion thereof, admitted that the State had proven its case against Mr de Kock beyond reasonable doubt. I think now to argue that what he either meant by that was that I meant that the State had proven that a claim was submitted on behalf of Ben Mokaba, I think is not entirely correct. He has admitted that de Kock was guilty of an offence and I think it is also borne in mind, and it is corroborated by Mr van Zyl who made it quite clear that "I did not receive R20 000." He was quite definite about that and again I think one should not disregard what Mr Klopper I think said about the modus operandi that operated at Vlakplaas.

Mr Chairperson, I submit that it is quite clear that on a balance of probabilities, and that test I think that this Commission I think has got to adopt, that on the balance of probabilities, I think it is quite clear that Mr de Kock in conjunction with Holtzhausen must have and did in fact receive the balance thereof. I think it would be unfair I think to expect of the victims to produce proof that they did in fact receive this when one of their own applicants I think mentioned the modus operandi of Vlakplaas.

Mr Chairperson, I think the next issue is whether or not there was full disclosure. Obviously if I was to deal with every applicant, I think I will be here until twelve o'clock, and I don't want to be here until twelve, I will only highlight some of the contradictions. I think it is already quite clear that Mr de Kock himself gave conflicting evidence about the information note. He gave that during cross-examination and I know that at one stage I think Mr Hattingh had mentioned that the conditions at C-Max was so atrocious, they were pressed for time, they at one stage I think there was a sewerage pipe that was smelling and I think he went on and on about that, but I think it was also put on record that I had recalled specifically where I was preparing for the civil trial, that was well before the cut-off date, that I had spoken to Mr Hugo and he had said to me that time already that the application for, Mr de Kock's application was ready awaiting the date to arrive, and for them to serve it just before the cut-off period, to basically implicate as many police officers as possible. It was a strategy, so I am not so sure what I think what one should then make of the conditions that existed at C-Max when this whole affidavit was taken. I will leave that, I think it is up to the Commission to decide on that.

So he gave different versions about the information notes. He also, Mr Chairperson, I think persisted that the information that he got from Van Zyl and Holtzhausen, was that Tiso and the other persons were going to rob, were on their way to Komatipoort and were going to smuggle weapons. Holtzhausen was asked about that and he didn't know. Van Zyl was quite clear about that, that he in fact did not give this information over to Mr de Kock. He persisted in saying that the action that was performed, was bona fide, it was a bona fide police action, but again I think it is furthest from the truth.

His affidavit I think if one looks at his affidavit, it was that he was not involved in the planning of this at all, but I think later he admitted that he was involved in the planning already in Pretoria. The impression I think that he gave was that he only took part in the shooting when he discovered that the shooting was chaotic and that he then got them into a line. Mr Chairperson, I think his evidence I think during examination-in-chief about his role at the scene, was quite clear. I think he said that he got his members in a line, or he fired first at this vehicle, then got his members in a line, took a few steps forward, his members followed the kombi and he went back to where he stood. That was quite clear, and later I think when I put to him what Geldenhuys I think had said, he then, it then dawned on him that "yes, I remember that, I at one stage went to this person who was crying and shouting and screaming and then I wanted to finish him off".

MR HATTINGH: Sorry to interrupt my learned friend Mr Chairman, but the evidence was that that happened when de Kock was some 40 metres away from the bus.

MR FRANCIS: I am not so sure what happened 40 metres away from the bus?

CHAIRPERSON: Mr Hattingh says that when this incident that Mr de Kock testified about becoming aware of this person that was moaning and so on, happened at a stage when he, de Kock, was 40 metres approximately away from the burning vehicle?

MR FRANCIS: That is true, but I think I put it to him that Geldenhuys said that Mr de Kock wanted to go to the person and he stopped him and said "look, people may see you", and he then conceded that he at one stage I think wanted to finish the person off, but was then stopped. I think he then said that Mr Nortje, it was also put to him what Mr Nortje said, that he in fact didn't mention that in his evidence-in-chief, that he had also instructed I think Mr Nortje, to shoot this person. I think he didn't mention that, and I think Mr Nortje himself had mentioned this and he said that Mr de Kock himself had told him to finish off this person and he had refused because he was tired of having taken part in killings. Again, that fact was not disclosed in Mr de Kock's application, nor was it disclosed in his supplementary affidavit and only came out during cross-examination.

Mr Chairperson, I think I can go on, I think Mr Nortje and Holtzhausen said that after Ben van Zyl had come back to the kombi, they had mentioned to Mr de Kock that Tiso was not part of the group that was in the kombi and Mr de Kock's testimony I think was that this information was only relayed to him after Tiso had been found by Mr Nortje and Holtzhausen, but Holtzhausen and Nortje was quite adamant about this, they told him this before they went to look for Tiso. To take it one step further, Mr Nortje does not recall that he had a discussion with Mr de Kock about the fact that Tiso should be taken to Swaziland or to be detained, it is only Mr de Kock I think who has a recollection of that, and obviously I think that is furthest from the truth Mr Chairperson. I think no police officer with such experience would basically suggest that somebody should be taken to Swaziland or also to be detained, when the person I think would be able to call his family from wherever he is.

Mr Chairperson, I think I have again I think about another 12 I think instances I think, I would like to highlight, I am not so sure if I should do so. But one other I think question I think of not full disclosure is that Mr Nortje was adamant about the fact that already at Nelspruit, at Drum Rock, Mr de Kock had asked him to fetch petrol, had asked him about the petrol. Again I think Mr Nortje himself was cross-examined extensively by Mr Hattingh about it, and also I think at the trial I think he was cross-examined about it, but he was quite clear about it, and I think he mentioned that "yes, I may be mistaken about the contents of the petrol that I had to get, but I recall that I was asked to get petrol". This I think makes a mockery I think of Mr de Kock's I think statement or allegation in his affidavit that when the bus I think was set on fire, he realised that it was a big mistake because he in fact, knew and it was his suggestion I think that the bus should be set on fire.

Mr Chairperson, I think I don't even have to mention I think, I don't deem it I think necessary I think to highlight I think every other I think instance where there was not full disclose, I think it is on the record, but I think my submission I think on this point is that there was not full disclosure on the part of Mr de Kock about this. I know it was argued that Mr de Kock had already served I think his time for charge 9, but I think this Chairperson, I think should not see charge 9 in isolation. It was part of the modus operandi that existed at Vlakplaas. Even though he may have served his time for I think charge 9, I think he was given a two year sentence, it is still I think the modus operandi that is important. This is basically how they operated and this is basically how they benefited from this whole thing. One should not disregard that in its entirety.

Mr Chairperson, I think I submit that first of all I think that Mr de Kock did not have authorisation for this and was not acting in the cause and scope of his employment, secondly that there was not full disclosure on his part and this was clearly for a personal gain. I think it is also pointed out by the other applicants, applicants who were taking part in the killing of Tiso that they were told that they could lodge false claims so that they could benefit from it. Again I think one should not disregard that, it was again the modus operandi that existed at Vlakplaas. Mr Chairperson I think one of the applicants I think I have just forgotten who it was, who testified today and said the other members of Vlakplaas also benefited from this, his name escapes me now. I think he mentioned that all of them benefited from this. I believe I think there must be some truth in it. Why only benefit four employees who had taken part in the killing of Tiso and not compensate the others, Mr Chairperson? Because that in itself I think would cause division amongst the ranks. That would basically you know, let them feel quite aggrieved about this because all the killings I believe I think I mean the killings was of a horrendous nature. Why not benefit them, and I think the inference I think that one should draw is that all of them must have and I think did in fact benefit from this.

Mr Chairperson, I think in respect, when one looks at Ben van Zyl, it was basically a set up from the beginning and I think he does not and would not be covered by I think it is Section 20(3)(i) of the Act because I submit Mr Chairperson that that Section I think has genuine informers in mind. It basically has informers I think who would be able to get information from, who would be able to get information and give that information over to the police. It is different from where a person I think becomes involved in a set up from the beginning, who suggested to them that they should rob a bank in Nelspruit or Coin Security in Nelspruit, it is not that he got information that Tiso and the four others were going to rob Coin Security. He in fact suggested to them that they rob Coin Security and then gave the information over to the police, and was involved from the beginning, from the onset up to the time I think when they were killed. It is not an instance I think when a genuine informer, who infiltrated an organisation, who discovers that the organisation is involved in armed smuggling and then gives the information over to the police and say "look you know, X, Y and Z will happen" and the police then acts on that. Here it is different and I don't believe that the legislature I think had in mind van Zyl I think when this was couched.

CHAIRPERSON: It is more like a trap?

MR FRANCIS: More of a trap. Even worse, I think it is more he said he was a businessman, basically selling information over to the police and then living off the proceed thereof. Mr Chairperson, also I think if one has to analyse the evidence of the other applicants, there were a number of contradictions between them and I know that Mr Hattingh said that you've got to look at every person individually, but this was not an individual act Mr Chairperson, it was a joint operation. It was hatched already in Pretoria, they in fact knew about this whole thing, they were given instructions about what their role was going to be. Obviously I think one should look, one should not look at their evidence I think in isolation, but one should look at this in its broader sense. I don't have to, I think it is not necessary I think to highlight the differences between the versions. It is quite clear and I think it is on the record. Mr Chairperson, I think what you've got here is that you have a bunch of murderers Mr Chairperson, who were trying to lie Mr Chairperson, and I think it is quite clear there cannot be a dispute that Mr de Kock himself had mastered the art of lying. He had lied to various bodies, he lied to his superiors, it is clear from the information note, it is quite clear from the claim that was lodged, he lied to - at various levels Mr Chairperson, and now he is coming here and he is saying to you that I am now telling the truth, I want you to believe me. It is also quite clear from his affidavit Mr Chairperson, that he deviates from it in certain respects, from his comrades Mr Chairperson.

I submit that there was not, that none of the applicants I think should basically be indemnified for what they had done and if there are certain points that you would like me to address you on, I would do so.

CHAIRPERSON: Thank you very much Mr Francis, we have noted all those submissions. Mr Patel, have you got any submissions?

MS PATEL IN ARGUMENT: Thank you Honourable Chairperson, I wish to state that I associate myself with the submissions made by my learned colleagues, Mr van den Berg and Mr Francis. They have covered all the issues, the pertinent issues quite extensively, there is just two aspects that I would like to bring to your attention.

Firstly, my learned colleague Mr Lamey has sought to bring Mr van Zyl within the ambit of the Act by relying on Section 20(2)(b). I would request you that when you consider whether Mr van Zyl can in fact be considered an employee or not of the State, that you take into consideration that he operated as a business, in fact a Close Corporation and not as an individual.

Then to move on to the second point, I ask you to take into consideration, or to consider, when you consider whether or not full disclosure was made in terms of those applicants who were at Penge Mine, my respectful submission that there has not been full disclosure in terms of their involvement there. My submission that it is highly improbable that a person who has been detained from the early hours of the morning, his hands tied, thrown into a boot of a vehicle, driven around for hours on end, from one point to another, not allowed to relieve himself, not fed, not given any form of sustenance whatsoever, then in the evening is removed from that boot, then voluntarily submits to an interrogation, voluntarily gives information bar a few slaps, the contradictions as to whether he was interrogated for one or two hours, and then subsequent to that, or following on that treatment, then willingly goes to his death without any reaction whatsoever. My submission Honourable Chairperson, is that it is improbable that somebody would go to his death in that manner.

In that aspect which I submit is crucial and material, we haven't had full disclosure here, Honourable Chairperson. Those are the only two points which I wish to add, the two pertinent points which I wish to add to the submissions already made. Thank you Honourable Chairperson.

CHAIRPERSON: Thank you Ms Patel.

MR HATTINGH IN FURTHER ARGUMENT: Mr Chairperson, I know that there isn't really reply here, but our learned friends have had the advantage of listening to our arguments, with your permission I will take less than five minutes, can I just react on one or two points?

Firstly Mr Chairperson, I might have heard incorrectly, but my impression is that Mr Francis had said that Mr de Kock admitted that he said to Nortje on the scene "shoot the man", if I heard him incorrectly, then it is not necessary that I make this point, but the submission that I want to make is that Mr de Kock had said ...

MR FRANCIS: Chairperson, I didn't say that de Kock admitted that.

MR HATTINGH: Then I misunderstood him, then I leave it there. Then the question of Swaziland, the discussion concerning Swaziland, Mr Nortje, according to my memory did admit to the possibility that Swaziland was discussed, but he said that he could not remember it. Concerning charge 9 Mr Chairperson, we have to look at the charge sheet, these allegations are based on the information note information, or not the information note, the report and this is what it was based on and this information is false.

Mr Holtzhausen was cross-examined on this and this information is false, so there were false proposals made to the State and indeed this convinced the State to make payments. In this aspect the charge against Mr de Kock had been proved, but it was never found that the money was not paid out to Mr van Zyl. There was a submission and Justice van der Merwe found it not necessary to handle this, because the allegations on the charge sheet had been proven. Then the question of that my learned friend, Mr Francis, uses Mr Swart, but Mr Swart gave evidence that he was under the impression that the other people also received remuneration and then he wants to raise this deposit of evidence, while Mr Swart said that it was his impression, that he might be wrong. He specifically said that he might be wrong, but the most important of this is that the person that he uses the most is Mr Klopper to talk about the modus operandi.

This being the informer is only being paid a part and the rest is then divided, he asks you to find that the rest was sub-divided between the rest, but that witness said that he received nothing, so where can you make such a finding? Over and above that, all the other people also say that they did not receive anything. Lastly Mr Chairperson, the question of a bunch of murderers committing an offence, you ask yourself the question if it cannot be said that it was done for gain and if it was so much easier just to let Aragio's bus be stolen and then to set it alight, why didn't these people do it? What other motive could it be other than that they believed that they were acting against robbers who were committing robberies for the ANC? My submission is Mr Chairperson, that this is the typical example that I was speaking about in the beginning of my argument, due to a lack of evidence, it is now being put up to evidence. The suspicion now exists that the people might have received money in the previous point that I made, and this is now changed to positive evidence and that one can now make the inference that payment had been made for this. One has to look at the evidence,

the evidence tells you what happened. According to this, there is no mention that Mr de Kock had received any remuneration for this or that he took part in this action for any other reason. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Hattingh.

MR LAMEY IN FURTHER ARGUMENT: Mr Chairperson, may I just reply on certain submissions, it touches on Mr van Zyl. Just shortly, the submission had been made that Mr van Zyl's information was only assumptions. Mr Chairperson, his evidence had been directly that the connection between the other members came from Tiso and that the other group was also ANC members, although he did not personally meet them and speak to them personally Mr Chairperson. If one then looks in this regard to what the Act says about this, the Act does not ask for a clausal connection, that one has to clarify beforehand to be able to put up a political aim, the Act talks about an associated political objective. This is then not the criteria that one has to find proof that there is a definite clausal relationship before you can qualify for amnesty and then the submission of Ms Patel that because Mr van Zyl had another business in general concerning information, he cannot qualify as an employee. Mr Chairperson, I just once again want to make the submission reply to this, that one finds this on a daily basis that people are contracted while they are running a specific business, but then they have to work within a specific instance and they have to do specific work and if one looks at the authority that is referred to, I want to refer you to the authority of Veltman v Mall 1945 (A)

"... instructions vary in character. Some may defined the work to be done by the servant, others may prescribe the manner in which it has to be accomplished, some may indicate at the end to be obtained, and the others, the means by which this is to be obtained. Provided the servant is doing his master's work, or pursuing his master's ends, he is acting with the scope of his employment."

What else did Mr van Zyl do other than acting as an informer of C10 and then gaining information for them? His master was C10 with all respect Mr Chairperson. I don't want to take you through all of this, it takes too much time, but if one goes and analyses it, and this is what I am asking the Committee to do, to go and look at these sources, also where it was applied in relation to Mr Vlok.

CHAIRPERSON: Would you say that the State contracted the Close Corporation? But we have heard all the submissions.

MR LAMEY: Thank you Mr Chairperson.

CHAIRPERSON: We have come to the end of the proceedings in respect of these two matters that we are seized with at this time. We would need time to consider the matter and to consider and formulate our decision in this matter, and in the circumstances we will reserve the decision and we will notify all of the interested parties once the decision is available for distribution.

I think it also concludes our session here Ms Patel? Very well. Under those circumstances, we will then just thank all of those people who have made it possible for us to have this hearing in this venue. We are constantly aware of the fact that it takes effort from many people to make it possible to have a public hearing of this nature, and we are always grateful for their assistance. Also in particular to the legal representatives who have assisted us in this matter, we appreciate your contribution and to the members of the public, who have shown an interest in the proceedings.

We have come to the end of the sitting here in Pretoria, we are now adjourned.

COMMITTEE ADJOURNS