CHAIRPERSON: Good morning to you all. My name is Judge Sisi Khampepe, I'm be chairing these proceedings. I will be sitting with my colleagues. On my right-hand side I have Mr Wynand Malan, and on my left-hand side I have Mr Ilan Lax.
Mr Jansen, I believe you will be appearing on behalf of the applicant.
MR JANSEN: As Madam Chair pleases. It's Jansen on record, I appear on behalf of the only applicant in this incident, Mr Ras, on instructions of Julian Knight attorneys.
CHAIRPERSON: For the Evidence Leader.
ADV STEENKAMP: Thank you, Madam Chair. My name is Andre Steenkamp, I'll be the Evidence Leader. Thank you.
CHAIRPERSON: We seen to be starting our proceedings without proper facilities. We don't have headphones.
MR LAX: We have the headphones, but we don't have the transmission boxes.
CHAIRPERSON: Mr Jansen, are you in a position to commence?
MR JANSEN: We are ready, Madam Chair. If I could call the applicant to testify.
MR MALAN: Mr Ras, if I remember correctly, you've got no objection in taking the oath.
MARTINUS RAS: (sworn states)
MR MALAN: Thank you, you may be seated.
CHAIRPERSON: Before you commence to lead Mr Ras' evidence-in-chief, Mr Jansen, can you just give an indication to the Committee, in respect of which offence your client will be seeking amnesty.
MR JANSEN: Madam Chair, the applicant will be seeking amnesty, and the actual formulation I might hold over until right at the end, because I'm not exactly certain what formulation we'll be using, but it will be for the conspiracy to murder occupants of an ANC base, or house in Zimbabwe, or any of the occupants of such a house, and similarly in respect of an ANC facility in Botswana, as well as any statutory offences relating to the possession and use of explosives connected with these conspiracies. Thank you, Chair.
CHAIRPERSON: You may proceed.
EXAMINATION BY MR JANSEN: Mr Ras, you are the applicant in this matter which has been served before the Committee, and which is entitled - if I could just find it, or which relates to the handling of certain informers who were working in Zimbabwe and Botswana in 1989, is that correct?
MR RAS: Yes, that is correct.
MR JANSEN: In the application which has been served before this Committee, this is part of your application in its entirety, which has been submitted to the TRC, and which includes approximately 20 incidents, is that correct?
MR RAS: That is correct.
MR JANSEN: You are aware of this application and you have studied it again before you testify before the Committee.
MR RAS: That is correct.
MR JANSEN: With regard to your general background and the general political motives, do you confirm what appears in this document from page 1 to 6 thereof?
MR RAS: Yes, that is correct.
MR JANSEN: Just to clarify the major points, you were a member of Unit C1, the so-called Vlakplaas, from 1984 to 1992.
MR RAS: Yes, that is correct.
MR JANSEN: And during 1989, your Commander was Col de Kock.
MR RAS: That is correct.
MR JANSEN: What was your own rank during 1989?
MR RAS: Warrant Officer.
MR JANSEN: Regarding the incidents themselves, or the incident itself, which appears from page 7 onwards, it is correct that you have once again studied your application before giving evidence here today.
MR RAS: Yes, that is correct.
MR JANSEN: Except of course for any additions or qualifications which you will make now, do you confirm the content thereof?
MR RAS: Yes, I confirm it.
MR JANSEN: Part of these incidents which you have described are connected with an assault on one or the informers, is that correct?
MR RAS: Yes, that is correct.
MR JANSEN: This aspect and the possibility of amnesty for this has been discussed by you with us, as your legal representatives.
MR RAS: That is correct.
MR JANSEN: And you do not request amnesty for that assault.
MR RAS: No, Chairperson.
MR JANSEN: Just with regard to the incidents themselves, the objective with the explosives and the limpet mine, what was the objective or the purpose with taking these items over to Zimbabwe?
MR RAS: It was to kill ANC members there and also to destroy their facilities.
MR JANSEN: Is the same true with regard to the Botswana incident, which appears in the final paragraph on page 10?
MR RAS: That is correct.
MR JANSEN: Is it correct, from within the context, that it appears that there was not a specific target or individual who was viewed as a target, but that this action was aimed at any person or persons who were present at the ANC facilities?
MR RAS: Yes, that is correct.
MR JANSEN: Very well. Did you regard your action in this regard as an action which you were involved with as part of the struggle against the ANC?
MR RAS: That is correct.
MR JANSEN: You also state in your application that this matter was discussed with Mr de Kock, is that correct?
MR RAS: That is correct.
MR JANSEN: Did you view his agreement or association therewith as an approval of your actions?
MR RAS: That is correct.
MR JANSEN: Did you receive any further remuneration for your involvement with this incident, apart from your regular salary?
MR RAS: No.
MR JANSEN: You also mention the name of Kobus Kok, Capt Kobus Kok, could you tell the Committee whether this person regularly assisted Vlakplaas members in a technical capacity?
MR RAS: That is correct.
MR JANSEN: Can you recall whether or not you told him for what purpose you required the explosives?
MR RAS: No.
MR JANSEN: Would he necessarily have known what it was needed for?
MR RAS: No. He would have known that it would be used in order to kill people, but he wasn't informed specifically about the operation.
MR JANSEN: Why would he have know that it would have been used to kill persons and not necessarily to destroy infrastructure?
MR RAS: Or infrastructure, but specifically with regard to a limpet mine - yes, I must have made an incorrect deduction, it could also have been for the destruction of a facility.
CHAIRPERSON: But would he have known that you intended to use that mine against members of the ANC?
MR RAS: He was not directly informed. We would go to the person and say that this is what we needed, such as the case in which I required a limpet mine to be concealed in a car battery to take over the border. We were working within the context of a situation that he was aware of, but I did not know directly that he knew that I was going to be taking this specific action against the ANC.
MR JANSEN: Very well. And in conclusion, although it may not be relevant with regard to the matters for which you have applied for amnesty, the names of the informers are not mentioned, could you tell the Committee whether there is any specific reason why you cannot recall the names and whether since the compilation of your application, you have managed to recall any names.
MR RAS: Chairperson, I worked with many informers, I wouldn't even be able to mention the number of informers I have worked with, it must be more than a hundred. Peter Casselton knew these persons personally, they lived with him. I stated this with the intention that the names could be obtained from him. Unfortunately these persons have died in the meantime. I can recall one name and that is Langton, L-a-n-g-t-o-n. I cannot recall the surnames. It was one of the Zimbabweans, and he also worked with the other Zimbabwean, but I cannot recall the names. I have tried very hard, but unfortunately I cannot recall the names.
CHAIRPERSON: May I interpose, Mr Jansen.
You state that these informers have since died, how do you know of this fact?
MR RAS: No, I did not say that they had died, what I said was that the person who knew them, Peter Casselton, he had passed away and he is the person who could have provided those names to us. It is not a case of me trying to protect the names of others. I would have wanted to give their names, but it is not possible for me today, even though I would dearly like to have given their names.
MR JANSEN: Thank you, Chair.
Just another aspect which I omitted, you are also aware of the fact that during the course of last year there was a hearing which dealt specifically with general aspects of Vlakplaas, can you recall this?
MR RAS: Yes, that is correct.
MR JANSEN: And as with your other applications, you also wish that the general information and evidence regarding Vlakplaas, also be considered in the evaluation of your amnesty application.
MR RAS: That is correct.
MR JANSEN: Thank you, Chair, no further evidence.
NO FURTHER QUESTIONS BY MR JANSEN
CHAIRPERSON: Mr Steenkamp.
CROSS-EXAMINATION BY ADV STEENKAMP: Thank you, Madam Chair, maybe just one question.
Could you just tell the Committee what type of informant was this, was he registered at the head office?
MR RAS: Madam Chairperson, they were both registered and because of this fact it was possible that I could request van Rensburg to use the vehicles. Those who operated in Zimbabwe and Botswana, they were all three registered informers.
ADV STEENKAMP: And these informers, did they only work for your section or department, or for the rest of the police?
MR RAS: No, according to my knowledge, they only worked for myself or for the Security Police.
ADV STEENKAMP: And do you know how many handlers this informer had, or was it only you?
MR RAS: It was only myself.
ADV STEENKAMP: And the type of information that they provided you with, was it mostly about security information or was it general crime information that they gave you?
MR RAS: No, it was mostly with the ANC's activities in Zimbabwe and the ANC's activities in Botswana, that we could gather or confirm with other informers.
ADV STEENKAMP: How long were they informers for you?
MR RAS: It was approximately a period of six months where I saw them approximately once or twice a month.
ADV STEENKAMP: Who recruited this person as an informer?
MR RAS: It was Mr Peter Casselton.
ADV STEENKAMP: Thank you.
NO FURTHER QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Mr Steenkamp, have Section 19(4) notices been served on Mr Kobus Kok, Mr de Kock and Mr van der Westhuizen?
ADV STEENKAMP: Madam Chair, I'm informed - I don't have the copies, but I was informed it was indeed done. I did receive a response from Mr de Kock's attorneys, which I have in writing here, stating that they don't have any knowledge whatsoever regarding de Kock's implication in this matter. The Section 19(4) notice was faxed to his attorneys on the request of his attorneys and I received a letter which I discussed with my learned colleague, indicating that they don't have any knowledge on this specific matter whatsoever.
CHAIRPERSON: Can we have sight of that letter?
ADV STEENKAMP: Just a moment, Madam Chair.
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ADV STEENKAMP: Madam Chair, the Section 19(4) notice I've got in front of me, which was faxed, and the letter from the attorneys is dated 18 April 2000, whereby Mr Solomon ...(indistinct) says that
"At this stage we can only mention that the writer thereof has absolutely no knowledge of this incident."
CHAIRPERSON: Furthermore, was a Section 19(4) notice served on Brig van Rensburg?
ADV STEENKAMP: Madam Chair, I think similarly. I don't have that correspondence yet, but I was also informed that it was indeed done, by the Analyst as well.
CHAIRPERSON: Can you just check and confirm with the Panel, if indeed that was done. Let us have copies of the Section 19(4) notices that were served on these people.
ADV STEENKAMP: Madam Chair, I've requested the correspondence, unfortunately only a part of the correspondence arrived here this morning. Thank you, I will do so.
CHAIRPERSON: Mr Lax.
MR LAX: Thanks, Chair. The same would obviously apply to Brig Beukes.
ADV STEENKAMP: Obviously, Madam Chair. Thank you.
MR LAX: Then just one other question. I know that Investigators did speak to Mr Casselton before he died, and I wonder whether any statements were taken from him, in relation to this matter or a whole range of other matters.
ADV STEENKAMP: I have no information about Mr Casselton, but I do know, and I've traced this information myself, Mr Casselton apparently has died - maybe my colleagues can help me, has died under conditions where the Attorney-General has asked for further investigations. I think it was about a year ago. He was killed by a truck, if I'm not mistaken.
MR LAX: It was in the media, he was run over by a vehicle that he was working on. Or let me put it differently, he was crushed by the vehicle, according to the media reports.
ADV STEENKAMP: I can't contest the facts, but yes, that's true.
MR LAX: Just one question in relation to the merits of the matter.
How was the approval of Brig van Rensburg relayed to you?
MR RAS: Chairperson, as far as I can recall, it was with de Kock in his office, where we asked for vehicles and we said what they were going to be used for and it was never put in writing, it was orally done, and Mr de Kock was with me and Brig van Rensburg, in the office.
MR LAX: And then subsequently, documents were given to you by Brig Beukes.
MR RAS: That is correct, yes. And at a later stage, as far as I can recall, enquiries were made by Interpol regarding the name which I used, which we then denied from this side, that such a person existed, on which I registered the vehicle. I just want to mention that it was not possible for me to take two vehicles, send them abroad and these vehicles do not ever come back. It would have been impossible for me to have done that.
MR LAX: Just one last little aspect. In the case of the first - let's call it the Zimbabwe part of this application, you applied for and received certain explosives, 25 killogrammes PE4 explosive.
MR RAS: That is correct, Chairperson.
MR LAX: Where did you obtain that from? From Kok, from stores or ...?
MR RAS: No, they provided me with it. As far as I can recall, the technical department gave this to us.
MR LAX: Okay. And they wouldn't have just done that without some kind of authority.
MR RAS: No, it was done by them at the premises in Rebecca Street, at that stage, where the - that BMW had two petrol tanks, one was cut off and the one that was behind the seat, that contained the explosives.
MR LAX: And then the second one that was the limpet mine which then got stuck in the battery, the vehicle battery.
MR RAS: That is correct, yes.
MR LAX: You also got that from them.
MR RAS: Yes.
MR LAX: Thank you, Chair, I've no further questions.
CHAIRPERSON: Mr Malan, do you have any questions for Mr Ras?
MR MALAN: I have no questions, thank you, Chair.
CHAIRPERSON: Mr Jansen, do you have any re-examination?
MR JANSEN: No re-examination, thank you, Chair.
CHAIRPERSON: Are you a position to argue?
MR JANSEN: Yes, Chair.
CHAIRPERSON: Mr Jansen, in your argument, can you briefly mention if this matter can be - if one can say it is affected by the Veenendal 80 Decision?
MR JANSEN IN ARGUMENT: Yes. Chair, I haven't had occasion to sort of address argument or to prepare a detailed argument, so I'll be - my submissions will be of a general nature. I have read the case previously and I remember what the gist thereof was, and it would seem that one may even have to read that case together with the recent interlocutory judgment in the Wouter Basson case, which places certain restrictions on the ability to prosecute for conspiracy inside this country to be committed in another country.
Madam Chair, my first observation about the Veenendal matter is that as far as the result of that case is concerned, I would submit it's correct, that dealt with explosions and it dealt with offences committed in the run-up to Namibia's independence, if I remember the facts correctly, and I think it was correctly found in that case that those were acts relating not to the struggle of South Africa's past, but to another country's past. So far so good.
The problem with that judgment is, and I think the problem that it creates for us, is that certain other arguments were raised and obiter dictum were made that does cause problems for this process. For instance it would say that the extraterritorial working of this Act, of Act 34/95, was really there to cover the liberation movements' problem with for instance, treason, that it was there to cover those kind of extraterritorial offences that can be prosecuted inside the country.
Madam Chair, as far as that is concerned, I would respectfully submit that that judgment is wrong. Secondly, the Committees in respect of this Act, are not bound as of right by that judgment, and have in fact given judgments for offences committed in other countries.
If, with respect Madam Chair, it was the intention of the legislature to have that extraterritorial operation of the Act be so limited, it needn't have mentioned offences committed inside or outside South Africa, it could simply have said "any offence that can be charged in a court of law". Those words in this Act, must of necessity, mean that the legislature wanted some or other extraterritorial for this Act. And the Appellate Division, with respect, did not have the advantage of evidence that spanned over a period of three years, incidents that spanned over a period of 30 years, which your Committees have had.
And one would imagine would - and what the evidence has shown in the last two to three years is, with respect, what I believe the legislature had in mind. They knew that the war in South Africa wasn't just fought on this territory, it was fought primarily, or in many instances, in our neighbouring countries and there were also well known facts at that stage that there may be amnesty applications from ANC members relating to offences committed in their camps, in their detention camps. So those were fairly well known matters, which I respectfully submit makes the underlying intention of the legislature clear, that it does go much further than that.
So as far as that is concerned, with respect Madam Chair, I would simply submit that you approach the matter as other Committees, of which - I'm not sure, you may even have been part yourself, have approached this problem. In other words, giving amnesty for actions that have been committed outside South Africa's borders, as long as they are fairly well connected to the struggle between the ANC and the government and the forces that were fighting each other. I don't want to take it too much further than that.
Save to state in this case, the features of the case are, I submit, in a certain sense very comparable to many other instances. There were constant planning of actions, including murderous actions against facilities used by the ANC, there was constant target identification, based on whatever information was available at the time. Certainly facilities or places where the ANC or other organisations used were in many instances targeted, and I don't believe from that point of view there can be any problem with the type of target.
What makes this case slightly, I suppose a little bit different is that it didn't involve a great number of operatives of Vlakplaas going over the border on a specific evening and so on, what was used here were - the informers themselves were used to smuggle as it were, the explosives into Zimbabwe and Botswana and to, as it were, effect the operation itself. In that sense it's slightly different to many of the other Vlakplaas incidents where the Vlakplaas operatives were themselves involved in the attack, or directly involved in the attack itself.
But the fact of the matter remains, Madam Chair, that in 1989 these types of incidents were still regarded as legitimate, it has all the hallmarks of most of Vlakplaas' operations, explosives are received from Technical Division, Technical Division's assistance is called in to assist in, for instance, making changes to the motor vehicle, placing the explosives in the motor vehicle, putting a limpet mine in the battery. These are not the actions of a rogue policeman out on a mission on his own, it has all those elements of using the normal infrastructure of the Security Police. There's nothing here to gainsay what the applicant says, as far as his communications to de Kock and van Rensburg is concerned.
At the very best, one would obviously raise the question, "But why are these other people that were involved not here?" The problem is because I would imagine, to some extent nothing happened at the end of the day, the explosives were sent out and it was never detonated. It seems as if there was no real feedback on the incident. It could very well be that people simply forgot about this specific instance, in the context of the many, many incidents that people were involved in.
Madam Chair, so that with respect, takes care of those initial requirements in Section 20(2), whether it now be (b) or (f).
Then as far as all the other things are concerned, all the other requirements are concerned, I'm not going to belabour any of them. Those are issues which I respectfully submit, you have a good idea of how to, in a general sense, to approach a specific incident, and I submit that really the only to some extent problematic issues is to find a reasonable formulation for the amnesty sought. I have, although we've been involved in this process a long time, there seems to constantly be uncertainty as to how to formulate these amnesty orders, and in this extent I would imagine you're in a much better position to know exactly what is acceptable to you and to what extent the lack of facts are accommodated in an amnesty order.
My suggestions in this regard would be to grant amnesty for the conspiracy to murder ANC members in ...(intervention)
CHAIRPERSON: Any determined number?
MR JANSEN: Yes, ja - unspecified members of the ANC, in a structure or in a house in Bulawayo, Zimbabwe, by way of - by explosives I would fit in, during the course of - I don't know whether one should say through the agency of informers. It's just really to identify this specific incident as much as possible, but one can say, do you just simply say "During the course of 1989", then either just "as described in the evidence"? Or if one feels that that is a bit too vague, then one should enter into that wording something to the effect of "through the agency of informers", but that would appear to be a little vague as well. Madam Chair, I would imagine that, if it's acceptable for the Committee, to say "as described in the application", because then it makes it clear which set of facts one is dealing with.
CHAIRPERSON: Are you in a position to give us more facts with regard to this house in Bulawayo?
MR JANSEN: No, other than it was a house as described here, which was identified by the informants, yes. Now in the absence of confusion with another incident, I believe that a certain amount of vague description would be permissible. There isn't any - I can give this Committee the assurance that there isn't any of the other incidents for which Mr Ras seeks amnesty, that can possibly be confused with this incident. So on that basis, the description need not be all that accurate.
And again, I don't know how the Committee intends, or does normally deal with the whole host of possible statutory offences that may be involved. Previous examples that I have seen, is simply to deal with the matter on the basis of saying "any other statutory or common law offences covered by the evidence testified" ...(intervention)
JUDGE KHAMPEPE: Flowing from.
MR JANSEN: Ja, flowing from this incident. Something to that effect.
MR LAX: The Botswana one would have a similar formulation ...(indistinct)
MR JANSEN: Yes, the only difference really is the house was there in Francistown, and I believe that formulation should be the same. Thank you, Chair.
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ON RESUMPTION
CHAIRPERSON: Mr Jansen, we would like to deliver our decision as quickly as possible, we however are constrained by other issues. We still have not been given Section 19(4) notices by our Evidence Leader. We must sight of those documents before we can pronounce our decision, but we can assure you that we will be able to pronounce our decision during the course of this week. We believe you will be with us later in the week.
MR JANSEN: No, Chair, we won't, but we'll be available, we're in town. Thank you, Chair.
CHAIRPERSON: We'll reserve judgment.
MR JANSEN: Thank you, Chair.
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