CHAIRPERSON: Good morning to you all. Today is the 22nd of May in the year 2000. We are going to sit to hear the application of Mr P J C Loots, which is application number 5462/97. The Panel that will sit to hear this matter comprises myself, Judge Sisi Khampepe, on my left-hand side Mr Ilan Lax, on my right-hand side Mr Wynand Malan. Will counsel who will be appearing on behalf of Mr Loots and the legal representative of the victim kindly place themselves on record?
MR ROUX: As it pleases you. My surname is Roux from the Pretoria Bar. I act on behalf of Strydom and Brits for the applicant, Mr Loots.
MR KOOPEDI: My name is Brian Koopedi, I appear on behalf of the victim in this matter, Father Semangeliso Mkatshwa.
ADV STEENKAMP: Thank you Madam Chair. My surname is Steenkamp. I'll be the Evidence Leader. Thank you.
PHILIPUS JOHANNES CORNELIUS LOOTS: (sworn states)
CHAIRPERSON: You may proceed.
EXAMINATION BY MR ROUX: Mr Loots, if you look at the bundle in which your application appears, did you have the opportunity to look at the contents thereof?
MR LOOTS: That is correct, yes.
MR ROUX: Can you confirm the contents of the bundle from page two up until page forty-nine? Can you confirm the contents thereof?
MR LOOTS: Yes, I do confirm it.
MR ROUX: Before we look at the merits of this case, can you just look at the contents as it appears from page fifty-five, from the letter B at the bottom of the page? Can you confirm the contents of that page up to page sixty-six?
MR LOOTS: I confirm the contents thereof.
MR ROUX: Very well. Can you go back to page forty-nine where the incident is described? Can you just explain what the command structure was and how it worked during that time of the Mkatshwa incident?
MR LOOTS: I gladly explain as follows. I was a desk officer working for the Security Branch of the South African Police Section in the Northern Transvaal. I was known as Unit B. Unit B was the unit in the Security Branch that specifically dealt with the Black Forces. There were also other units. The Commander of the Security Branch of the section in the Northern Province, or Northern Transvaal, was Brig Jack Cronje, who was later followed up by Brig Basie Smit, who then retired as a General. The Senior Staff Officer was Gen Martinus Ras. At that stage he was a Lieutenant-Colonel. He held this position during the command of both Brig Cronje and Brig Basie Smit. In other words, as the Section Head, if he was not present then the Senior Officer would have been Martinus Ras of the Security Branch.
MR ROUX: Who was your direct head or Commander during this incident?
MR LOOTS: With regards to the incident in front of me, at that stage it was already Brig Basie Smit who then retired as a General.
MR ROUX: Very well. Can you just explain in more detail the application and the purpose of this application?
MR LOOTS: Just to make it very clear, I would like to explain to you how it worked with regard to the different units. It was my unit, Unit B, we also had a Unit A and this unit worked with the following issues. They worked with white, coloured, Asian matters, as well as churches, Unit B, this is my unit now. Then Unit C was the Terrorist Unit, they worked with the PAC, the ANC, investigations and interrogation matters. Unit D was the Trade Union Unit and maybe less important, Unit E was the Selection Unit who worked with very important people. Then there was a limited unit, where just the personnel had access to. That was the unit that worked with the post and telephone interceptions. They were known as the WH10 and WH11. There were postal interceptions and then as well as telephone interceptions.
MR ROUX: Very well, Mr Loots, in this case could you inform the Committee whether from your own knowledge, you can recall the facts in detail and if not, how you came to recall or know the facts?
MR LOOTS: I would also like to explain the following to you, with regard to my own position as the Unit Head of the Black Power desk, I was also involved with the total administration of the detention in terms of the Security Emergency Regulations, not only for Northern Transvaal, but also with regard to KwaNdebele. The tremendous volume of work simply led to the situation that I was simultaneously involved with many things and so too my staff.
That it is understandable to me that there are many aspects that I cannot recall in detail, although I might want to, I simply cannot because I cannot recall everything, not because I want to be obstructive, or because I'm attempting to withhold anything from the Committee or anybody else who is present here.
MR ROUX: Mr Loots, were you present when Capt Hechter and Warrant Officer van Vuuren appeared before the TRC and gave evidence?
MR LOOTS: More than that, I made it my purpose from the very beginning, from the opening statements made by Gen Johan van der Merwe, to be present at every session, with the exception of those in the Cape, or those that I could not attend. I have attended every session and the purpose was also to see how far I could refresh my own memory or recall incidents and so then I was indeed present during the evidence of both Capt Hechter and W/O Paul van Vuuren.
MR ROUX: With regard to their evidence, are you also in possession of a supplementary bundle, which contains a transcript of the hearings of both Hechter and van Vuuren and have you studied this evidence?
MR LOOTS: Yes, I have studied it.
MR ROUX: Do you associate yourself with the content thereof in as far as it may have any bearing on you?
MR LOOTS: Fully.
MR ROUX: You may continue from page forty-nine and sketch your involvement in the Mkatshwa incident.
MR LOOTS: I will gladly do so.
In the Mkatshwa incident I would like to say at the very beginning that there is tremendous uncertainty in my mind regarding how the planned assassination attack was initially launched. I would also like to make it clear that I do not wish to distance myself at all from the unsuccessful assassination attack.
I associate myself with the evidence of both Capt Hechter and W/O van Vuuren before the Amnesty Committee. It is clear to me that they can recall the incident much better than I can. The confidence which existed among us and still exists is of such a nature that they would not say or testify what I would not have said to them, in other words if they say or testify regarding something that I would have told them, I accept that I indeed told them so.
MR MALAN: I beg your pardon Mr Loots. We have read this.
MR LOOTS: Oh, then you have read it. As it pleases you Chairperson.
MR ROUX: Perhaps then I could lead your evidence more briefly. Both Hechter and van Vuuren testified that you gave the order emanating from Brig Basie Smit to eliminate Mkatshwa.
MR MALAN: I beg your pardon, Mr Roux, just to be fair to you, you did not allow him to confirm the evidence that he wanted to read. Is there any deviation, or does he also confirm the contents thereof?
MR ROUX: There is no deviation, there has been proper consultation regarding these aspects. Perhaps I could elaborate on certain aspects of his evidence.
Mr Loots, do you confirm Mr Loots, if you look at page fifty-five, I beg your pardon, fifty up to and including fifty-five at the end, do you confirm the contents of your application and the facts presented therein?
MR LOOTS: Yes, I confirm it and all the facts presented therein.
MR ROUX: With regard to singular aspects, just to obtain more clarity, was any post intercepted or were any telephones tapped with regard to Mr Mkatshwa's case, apart from the use of informers and the information in the files of the unit?
MR LOOTS: We were not only interested in him as a person, but also the organisation with which he was affiliated. In this case I think specifically of the South African Catholic Bus Corporation. They were also seated in Khanye House and we also tapped their telephones and intercepted their post.
MR ROUX: Very well. Mr Loots, all the information that you possessed, as embodied in pages fifty-one and fifty-two, with regard to the involvement of Mr Mkatshwa, do you confirm this?
MR LOOTS: Yes, I confirm this.
MR ROUX: Could you tell the Committee how it came to your knowledge that Mr Mkatshwa, according to your information, was abducted from the Hercules Police Station by Military Intelligence?
MR LOOTS: Don't ask me the date or the time, but it was one morning, relatively early, when I felt that all hell was breaking loose around me, whether it was only from Head Office, I cannot recall, but I think that Head Office was involved. The Divisional Commander was at me because Father Mkatshwa was in detention at the Hercules Police Station, according to Security regulations. How Father Mkatshwa managed to get out of the cells, would depend upon me who was in charge of the Security regulations or the Divisional Commander. We would have to give a written permission for him to be taken out of the cells. Neither of us did so.
I was instructed to go to the Hercules Police Station. I cannot recall whether anybody accompanied me. I suspect that I was alone. Whatever the case may be, I drove to the Hercules Police Station. When I arrived there, Father Mkatshwa was fully clothed, but he wasn't wearing any shoes, or let me put it this way, even though he might have had shoes, he would not have been able to wear them. He sat on a little drum or a cupboard in front of the police station, he wasn't inside a cell. Both his feet were severely swollen and one could also see as one approached, that he made an attempt to get up. He smiled. You could see that this man was truly in a lot of pain. He sat down again. I didn't take him back to the cells, I spoke to him there in front of the cells.
As far as I can recall, he didn't tell me that it was Military Intelligence who had abducted him from the cells, but I can recall that at a certain stage we suspected Military Intelligence's involvement in taking him out of the cells.
Father Mkatshwa and I spoke over there and he told me that the people who had abducted him, for the whole time that he was not in the cells, which was about three to four days, they made him stand and I deduced that this was the reason for the severe swelling on the man's feet and in the process of forcing him to stand, they also terrorised or intimidated him by firing pistol shots next to his head, by hitting cans next to his head and allowing grasshoppers or locusts to walk up his legs.
This was a big story. There were many questions. I would go as far as to say that I am quite convinced that Head Office also had questions coming from the Government's side to the extent that this specific case led to the immediate release of Father Mkatshwa. I cannot recall whether it was on that day or the following day, but a telex was sent through for the immediate release of this man and indeed he was released.
MR ROUX: Mr Loots, in other words what you are saying is that you do not know how it occurred that Father Mkatshwa was abducted from the police cells. All that you know is what he told you when you visited him and this is similar to what van Vuuren and Hechter have said?
MR LOOTS: That is correct.
CHAIRPERSON: Mr Roux, I don't know the relevance of the evidence that has been tendered with regard to Father Mkatshwa's detention at the Hercules Police Station. May I find out, Mr Loots was there any inquiry conducted concerning this alleged abduction?
MR LOOTS: It may be so Chairperson and I believe that there would have been, because as I said, this was a very big story but I was not necessarily involved in the follow-up to the events and the investigation emanating from these events. If these things took place, I would have to say quite honestly that I cannot recall anything about them.
CHAIRPERSON: You must have reported it to somebody senior like Mr Basie Smit?
MR LOOTS: I believe that I did. I believe that I did, I don't know whether it was Smit or Cronje at that stage. I cannot recall that very clearly, but I would have reported it to my Commander definitely because I had been sent to investigate at the Hercules Police Station, so I would definitely have reported to somebody.
CHAIRPERSON: Did your initial investigation at Hercules Police Station involve your questioning of Mr Mkatshwa's alleged abduction by these Military Intelligence people from the Station Commander who was in control of the police station at the time?
MR LOOTS: I cannot recall that I spoke to any policeman there.
CHAIRPERSON: But were you not sent there to investigate?
MR LOOTS: More specifically to speak to Father Mkatshwa.
CHAIRPERSON: Mr Roux, what is the relevance of Father Mkatshwa's detention at the police station. How does it impinge on the application that we have to decide today that Mr Loots has applied for amnesty for?
MR ROUX: Madam Chair, the only reason why I have presented this evidence, is because I spoke to Mr Koopedi prior to the hearing and asked him whether or not there would be any opposition and what the basis of this opposition would be, so that I would be able to elaborate where necessary, without wasting any time and apparently there was an inquiry by him regarding the substances that Father Mkatshwa had to swallow, the substances which were forced down his throat, that is why I have presented the evidence, so that the Committee can understand that my client does not know anything about it and cannot testify about it, this is the only reason why I have presented this evidence, because there will be examination regarding this by my Learned Friend.
CHAIRPERSON: Thank you for enlightening us on this issue.
MR ROUX: Mr Loots, if we may proceed then, you have already testified that you don't know how the planned assassination was launched, you heard the evidence given by Hechter and van Vuuren and you have confirmed that you associate yourself with the evidence in as far as it concerns the admissions that they made to you regarding the unsuccessful attempt at assassination.
MR LOOTS: Absolutely Chairperson.
CHAIRPERSON: May I interpose, Mr Roux? I am more interested on how the order to eliminate Father Mkatshwa came to be issued. Can you lead him with regard to that pertinent issue?
MR ROUX: Mr Loots, you have already confirmed the involvement of Father Mkatshwa in various activist activities and you have also testified that you stood in the line of command after Basie Smit at that particular stage. From whom would the order have come to eliminate Father Mkatshwa?
MR LOOTS: Chairperson, if I could take you back to page fifty of my application, at the very top it says
"I know that both Hechter and van Vuuren testified that I would have said that the order to eliminate Mkatshwa came from Brig Basie Smit."
Once again, I do not have a problem with this, because both of them testified to this. I also stated that during their evidence and subsequent to their evidence, I thought about the structure and the line of command at that stage, but in all honesty, I cannot say whether or not Brig Smit said so, it would have been easier for me to say so.
MR MALAN: Mr Loots, the question was who would have issued such an order?
MR LOOTS: It would have come from the Divisional Commander I believe.
MR MALAN: And who was the Divisional Commander?
MR LOOTS: It was Gen Basie Smith, at that time Brig Basie Smit.
MR MALAN: Let me just take it further. Would you have been in a position at any stage to give such an order yourself, without receiving an order for this from a higher level?
MR LOOTS: Yes.
MR MALAN: So you were in a position to order eliminations without any order from a higher position?
MR LOOTS: If I really wanted to do it, I would have been able to do so.
MR MALAN: Was it within your capacity as you understood it?
MR ROUX: As I understood it, with regard to the general orders yes I would have been able to do so.
MR MALAN: Therefore you cannot recall whether or not you issued this order from within your own initiative, or whether or not an order was received by you?
MR ROUX: No. If I could recall clearly, I would not have hesitated to accept full responsibility for it here.
MR LAX: May I just clarify something for my own benefit, if you'll allow me? Are you saying that you can't remember the exact chain of command as to the origin of this particular order? But if it came from you, you would remember that, if you had personally been the highest point from which the order came, let's put it that way. Have I understood you correctly?
MR LOOTS: Yes, I believe I would have remembered it.
MR LAX: But you don't remember that, it must have come from higher up and that's why you're agreeing with what Hechter and van Vuuren say, that you told them it came from higher up?
MR LOOTS: Yes, you have understood it correctly, Chairperson.
MR ROUX: Thank you Madam Chair. Mr Loots, a last aspect, you also reconcile yourself with the weapons and the illegal use of them in this planned assassination.
MR LOOTS: I cannot remember the page, but I remember that I said in my application that they used this .22 and I know about that, but I cannot remember the 308 weapon that was used. It could have been that I knew about it, and I take responsibility for it, but I cannot remember it. As far as the AK47, I do not have a problem, I had one, Hechter had one and van Vuuren had one, so it could have been that they had these weapons with them, if that is an answer to your question.
MR ROUX: Mr Loots, the last aspect. Do you know anything, or at any stage did you know of a mandrax incident in which Basie Smit and Hechter and van Vuuren were involved and on which they also testified?
MR LOOTS: In this specific incident, I was not involved in this, it was only when van Vuuren and Hechter came to me in an argument between them, according to them that was between them and Brig Basie Smit that led to their transfer, that they received instructions to plant the mandrax on Father Mkatshwa, then also to force mandrax tablets down his throat.
MR ROUX: Did you question Brig Smit about this?
MR ROUX: No, never.
MR ROUX: Thank you Madam Chair, this is the evidence.
NO FURTHER QUESTIONS BY MR ROUX
MR LAX: Can I just clarify one thing about those firearms? You never had those firearms, the .22 and the 308 in your possession?
MR LOOTS: No, never, I never saw the weapons, but I knew about them.
CHAIRPERSON: Mr Koopedi.
MR KOOPEDI: Thank you Madam Chair.
CROSS-EXAMINATION BY MR KOOPEDI: Very brief questions for you Mr Loots and particularly on this alleged abduction by the Military Intelligence. Do you know who were the members of the Military Intelligence?
MR LOOTS: No, I do not know.
MR KOOPEDI: It did not bother you to find out who these people could have been?
MR LOOTS: I believe I was too busy with other duties to do the investigation myself, but I cannot remember who tried to find out. I would like to say to you that when we did the emergency regulations for the Security Branch, there were Military Intelligence people who helped us in the processing of the administration and one of the men who worked there was a Lieutenant, his surname was du Toit. I am sure it was du Toit and not du Plooy and I can remember him, he was a very young man at that sage.
MR KOOPEDI: You don't know if he was involved on this day, whether he came to Hercules Police Station or not and he's part of the group that took Father Mkatshwa away?
MR LOOTS: No, I cannot say.
MR KOOPEDI: Now during this abduction, certain things were done to Father Mkatshwa, you therefore would not know what was done to him, because according to your evidence you were not present?
MR LOOTS: No, I was not present. What I know is what I testified on and what Father Mkatshwa told me.
MR KOOPEDI: Okay. You told this Honourable Committee that when you arrived at the Hercules Police Station, he smiled at you, that is the time he had no shoes. Why did he smile? Did he know you?
MR LOOTS: Yes, he knew me.
MR KOOPEDI: Were you friends?
MR LOOTS: No, at various stages in the investigation of his home in Soshanguve at the church, I was present. I was in command at certain stages where we searched his house and I was present and he knew me from there.
MR KOOPEDI: Yes. My instructions confirm that, that you were part of the people who'd come to his house regularly. Now, did you ever torture Father Mkatshwa?
MR LOOTS: Never ever. Never ever.
MR KOOPEDI: Was he ever tortured in your presence?
MR LOOTS: No, never.
MR KOOPEDI: Have you ever abused his human rights?
MR LOOTS: No, I don't think so.
MR KOOPEDI: Chairperson, I have no further questions for this witness.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you Mr Koopedi. Mr Steenkamp, do you have any questions?
ADV STEENKAMP: Sorry Madam Chair, no questions from my side. Thank you.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Any re-examination?
MR ROUX: None.
NO RE-EXAMINATION BY MR ROUX
CHAIRPERSON: Mr Lax, do you have any questions to put to Mr Loots?
MR LAX: Just a small concern about this Mr du Toit. If I understand you he was just a clerk, who was helping you with processing of detention documentation.
MR LOOTS: Yes, he had insight into the documents and he assisted us. What you said is completely right. He worked in an administrative position.
MR LAX: He wasn't a member of Military Intelligence or anything like that?
MR LOOTS: No.
MR LAX: Because the name was mentioned, there may be an implication that he's implicated, but I'm making it clear that he can't possibly be implicated.
MR LOOTS: No, no, you're quite right, Sir.
MR MALAN: I have no questions, thank you Chair.
CHAIRPERSON: Mr Loots, I just want clarity with regard to your assertion that you had the capacity to issue an order to eliminate. In circumstances such as the ones where an order was received by both Capt Hechter and W/O van Vuuren, was this capacity to issue an order such as this one as a result of a general instruction received from either Mr Basie Smit or Brig Cronje?
MR LOOTS: Not Brig Basie Smit or Brig Cronje as such, but Brig J J Viktor, if you can recall his name Madam Chair.
CHAIRPERSON: Yes. You may respond to may questions using your own language, which I'm sure you'll be more comfortable to use.
MR LOOTS: Thank you Madam Chair.
CHAIRPERSON: And by alluding to the general instruction of Mr J J Viktor, you would be alluding to the evidence that was previously led before the original Amnesty Committee where Mr J J Viktor was alleged to have issued instructions, not however to people who were in your position but was alleged to have issued a general instruction to Mr Cronje, if I remember the evidence of Brig Cronje himself.
MR LOOTS: Brig Cronje himself.
CHAIRPERSON: Would I be correct?
MR LOOTS: You are right yes, you are correct.
CHAIRPERSON: Now would I also be correct in recalling Brig Cronje's evidence that from time to time he gave instructions to various people who were working under his command and to be more specific, Capt Hechter for instance?
Would I be correct?
MR LOOTS: You are correct, yes.
CHAIRPERSON: I'm trying to understand the chain of command. You were in charge of the Black Power section, you were the head thereof?
MR LOOTS: That is correct, yes.
CHAIRPERSON: And as the head thereof, who would have given you an impression that you had such an instruction or authority to issue such an order?
MR LOOTS: I can understand your question yes, the only answer that I can give is that it had to be from the Section Head.
CHAIRPERSON: And who was the section head?
MR LOOTS: In this case, in this amnesty application in front of you, it was Brig Basie Smit.
CHAIRPERSON: Now would I therefore be correct in understanding the general tenor of your evidence to be saying that if you thought you had an authority to issue an instruction to eliminate a person, such would have come as a result of Gen Basie Smit, or was he a Brigadier at the time?
MR LOOTS: He was a Brigadier at that time.
CHAIRPERSON: Such would have been as a result of some kind of instruction you would have received from Basie Smit that you had such a capacity to issue such an order?
MR LOOTS: That is correct, yes.
CHAIRPERSON: To your recollection, did he in fact ever give you an impression that you had such authority?
MR LOOTS: Not as far as I can remember, no. I cannot recall, no.
CHAIRPERSON: Now you will also recall the evidence of Capt Hechter specifically, that as far as he can remember the events and he was able to recollect, this is one of the few incidents where his memory was much better with his recollection than in the other incidents, he was able to recollect that the instructions came from Brig Basie Smit through you.
MR LOOTS: That is correct, yes. He did testify.
CHAIRPERSON: His testimony was not that you had given such an instruction, but that you were communicating an instruction that had been given by Brig Basie Smit, do I understand that version correctly?
MR LOOTS: Yes, that is correct.
CHAIRPERSON: Do you reconcile yourself with the version given by Capt Hechter?
MR LOOTS: Definitely.
CHAIRPERSON: And that it removes completely from the picture your capacity to have been able to issue such an instruction, does it not?
MR LOOTS: That is correct, yes.
CHAIRPERSON: Thank you.
MR MALAN: Thank you Madam Chair. Just to get clarity, you said that you had the capacity to issue the order to eliminate or to kill somebody?
MR LOOTS: Yes, that's how I felt it and that's how I understood it.
MR MALAN: And you also said in answer to a question of Madam Chair, or somebody else's question, that that capacity that you had came from the general command, from Gen Viktor, so where did you get the information of this general instruction or this alleged authority or instruction from Viktor?
MR LOOTS: We were called in to Gen Viktor's office and I think it was in the evidence here that it was Hechter and somebody else and Viktor then gave them this order.
MR MALAN: Mr Loots, please listen to my question. I would like to hear where you heard it from.
MR LOOTS: I heard it from Hechter.
MR MALAN: Where did you hear it from?
MR LOOTS: As far as I can recall, it had to be from Hechter.
MR MALAN: Were you not his senior?
MR LOOTS: Yes, I was his senior.
MR MALAN: And in terms of information conveyed, you then, Hechter who is in a lower rank than you, you then take the authority, or assume the authority to issue an order to eliminate somebody?
MR LOOTS: Right at the beginning, when Capt Hechter and Paul van Vuuren started with this operation for which they have applied for amnesty, I was not in the office at that stage, or I was not in the capacity of the Commander of the Black Power, I was part of a Special Investigative Team in the Alan Boesak case where we went to Cape Town. The man who was in my place was van Jaarsveld and both van Vuuren and Hechter reported back to Cronje until I came back at a later stage and then I took over, then they were already busy with this operation. And as it appears in the evidence, we were the team who were to wit myself, Hechter, van Vuuren and Jo Mamesela.
MR MALAN: Mr Loots I do not want to waste time, but I think it is an important issue to clarify. You haven't answered me yet. From whose authority, and I realise it's not relevant to this application, but how did you decide that you had the capacity to kill people, or did you just accept that it was done and then anybody can do it?
MR LOOTS: No, it wouldn't have been that way. I would definitely have had to hear this from somebody else, and that is why I believe that it was from Hechter.
MR MALAN: You are not listening to me. I would like to know on what basis did you get the capacity to eliminate somebody, or to issue the instructions to eliminate somebody? If he said not anybody could do it, how could you do it? This is my question. Because Gen Viktor never told you this.
MR LOOTS: No, it was a general instruction, he never told me.
MR MALAN: You do not know of an instruction or not, you only knew about it. All that you know is that Hechter and van Vuuren told you that they had the authority to eliminate people and they do receive such instructions and I would like to know on what basis did you think that you had the capacity to issue similar orders?
MR LOOTS: I do not think that I can really answer you on this.
MR MALAN: In other words, your answer previously that you had the capacity out of the authority or instructions that you got from Viktor is something that you constructed yourself and not got directly?
MR LOOTS: No.
MR MALAN: Can you tell me then why you had the capacity to eliminate people and to give instructions to others to do it?
MR LOOTS: These operations were already going on and it has been testified that it was also a secret and that people who operated in it or did it, never took responsibility or got reprimanded for what they did.
MR MALAN: In other words you thought it was acceptable that in the fighting of terrorism, anybody could kill anybody else, if it was in the interest of the cause?
MR LOOTS: That is correct.
MR MALAN: You did not need an instruction?
MR LOOTS: Yes, it was the practice.
MR MALAN: Very well. Thank you.
CHAIRPERSON: If that's what you are now saying, Mr Loots, it's giving me problems. You've alluded to the general instruction that came from Gen J J Viktor, where we have also heard evidence, but that general instruction was only given to Brig Cronje and not to his subordinates.
MR LOOTS: It could be so, I cannot specifically recall, but I do accept what you just said, I will not deny that.
CHAIRPERSON: That is the evidence that was before the Committee then and that's the evidence that's still before the Committee now and that general instruction was only given to Brig Cronje and not to his subordinates and you were not in the same category as Brig Cronje, you were working under Brig Cronje.
MR LOOTS: Yes, that's quite right.
CHAIRPERSON: So you couldn't have known about the general instruction that was alleged to have come from Brig Viktor. Am I correct in stating that you only became aware of that general instruction during the proceedings of the Cronje, Hechter, van Vuuren and others' applications before this Committee?
MR LOOTS: It could be that, yes.
CHAIRPERSON: And that would actually be wrong, if you relied on your capacity to order people's elimination and base your reliance on the alleged general instruction from Brig Viktor?
MR LOOTS: I could be wrong, yes.
MR LAX: It's not a matter of it could be like that, either you're clear in your mind that you've reconstructed this, based on what you heard at subsequent amnesty applications.
MR LOOTS: Yes.
CHAIRPERSON: Mr Roux, do you have any re-examination emanating from the questions from the Panel?
MR ROUX: No relevant questions Madam.
NO RE-EXAMINATION BY MR ROUX
CHAIRPERSON: Yes. And are you closing your case on behalf of Mr Loots?
MR ROUX: This is the applicant's case yes.
WITNESS EXCUSED
CHAIRPERSON: Are you in a position to give us your address, or you would like to have a short break?
MR ROUX: I am in a position to now address you.
CHAIRPERSON: You may proceed then with your submissions.
MR ROUX IN ARGUMENT: Thank you Madam Chair. Briefly I submit with respect that if it is noted without supporting it as such, the decision with regard to van Vuuren and Hechter pertaining to this particular case which can be found in the additional bundle from page thirty-eight, I beg your pardon it is before that, page thirty-four, that with regard to the planned assassination of Father Mkatshwa, there has been a full fulfilment with the requirements of the Act pertaining to the full disclosure of relevant facts as they are know to Mr Loots.
I submit with respect that he ought to be granted amnesty as follows. This can be found on page forty. I have studied these aspects and with the exception of D, I am in agreement that amnesty ought to be granted for conspiracy to commit murder or attempted murder of Father Mkatshwa during 1987, then transgressions of Sections 28, 29, 32, 36 and 39 of the Arms and Ammunition Act, which is Act number 75 of 1960 and then also Section 2 of the Act on Dangerous Weapons, which is Act 70 of 1968. In addition to this the general any other lessor offence or delict which may emanate from these facts.
MR LAX: On what basis is he asking for these, possession of firearms, dangerous weapons? He had nothing to do with it at all. He simply gave an instruction. The individuals who then took those weapons from other people would be entitled to those, but he's not party to that part of the offence at all, he's just party to the general conspiracy.
CHAIRPERSON: Was he ever in possession of what you now seek?
MR ROUX: I submit with respect that in terms of his evidence he was thoroughly aware of the .22 gun, he wasn't that aware of the .308, but he was aware of the AK47 which was in possession and which would have been used in the execution of the Act.
MR LAX: It had nothing to do with this offence, he simply said that: " We all had Aks of our own", it's got nothing to do with this incident. He never used or contemplated using his AK in this matter.
MR ROUX: I do not wish to be legally technical, but the applicant was thoroughly aware of the existence of the ZK47, the possible .38 and the .22 in possession of Hechter and van Vuuren. He associated himself with this and would have been able to foresee the possibility that they may use one of these particular weapons and he also associated himself with the content of the evidence given by Hechter and van Vuuren during his own evidence.
CHAIRPERSON: Was he personally ever in possession of the weapons in question?
MR ROUX: It is his evidence that he was not although he was aware of the fact that these other persons were indeed in possession of these firearms.
CHAIRPERSON: And the sections to which you have referred us to with regard to Act 75 of 1969, do they not require him to have been in possession of such weapons? Would you be correct in persisting with an amnesty with regard to that particular offence?
MR ROUX: Perhaps you have a point regarding the physical possession thereof. The mere fact that he possibly knew about these firearms in their possession, does not necessarily qualify for a charge regarding this particular aspect. I did not attend to this aspect. I beg your pardon and I then withdraw what I have stated with regard to both Acts 75 and 68 and will then pursue conspiracy to murder or attempted murder or any other offence of delict which may emanate from the facts. I offer my apology.
CHAIRPERSON: Yes. And what do you say with regard to his evidence pertaining to the chain of command specifically in so far as it relates to the order, the order to eliminate Mkatshwa? You will recall that he has already confirmed the evidence of Mr Hechter and Mr van Vuuren, who in their evidence stated that the order came from Mr Basie Smit.
MR ROUX: Indeed he confirmed that it would have come from Basie Smit and that if van Vuuren and Hechter say that he said that it came from Basie Smit, he would concur with this. However, he cannot recall this from his own knowledge but with regard to further evidence given by him that he was in no capacity to give such an order himself, the general inference would be so, despite his lack of recollection, he associates himself with the statements made by Hechter and van Vuuren and this would then be the only inference to draw from the evidence, that it would have been Basie Smit who issued the order and gave it to the applicant.
CHAIRPERSON: We are not even talking about inferences here, Mr Roux. The evidence is there from Mr Hechter and Mr van Vuuren, which he has confirmed that the order came from Basie Smit.
MR ROUX: I do not wish to play with words, but the applicant cannot say so with certainty. He has stated in his application that Basie Smit told him to - that he is not certain that Basie Smit told him to give the order to Hechter and van Vuuren, this is his inference, that despite his lack of recollection, it must have been so in the light of the evidence given by Hechter and van Vuuren and the fact that the applicant reconciles himself with the evidence given by Hechter and van Vuuren.
If I may refer you to the specific section or portion on page fifty, which is in the middle paragraph:
"During the evidence"
with reference to Hechter and van Vuuren,
"During their evidence subsequently and up to this point I have thought about the chain of command in this case and it would be easy to say that this was the case. However, I would not be this dishonourable."
This must be read with regard to the previous page, forty-nine, during which he has stated that both van Vuuren and Hechter have testified to this effect and that he concurs that this must be the case. This is the inference that we wish for you to draw.
CHAIRPERSON: That concludes your argument?
MR ROUX: That would then be my argument.
CHAIRPERSON: Thank you. Mr Koopedi, do you have any submissions to make before this Committee?
MR KOOPEDI: Very brief submissions thank you.
MR KOOPEDI IN ARGUMENT: Honourable Committee Members, my instructions from the victim, Father Mkatshwa are that I should not oppose the granting of amnesty to this applicant but to leave the decision to grant amnesty to this Honourable Committee. However, I wish to raise a few facts which I consider important for this application.
As I understand this application, this application excludes all the incidents that are mentioned on page one of the bundle of documents and this is what we were mainly interested in. This application excludes the torture that Father Mkatshwa endured and it is therefore my submission that even if you were to grant amnesty, I would submit that the granting of amnesty should not be extended to these incidents, the incidents that appear on page one, that is where he was blindfolded, gunshots fired next to him, he was forced to swallow and eat certain things.
My last point goes to the order to kill or to eliminate Father Mkatshwa. It is a little strange that it's not clear even today as to who gave this order. It would appear that this applicant relies on what other people say. Some people say Brig Smit gave the order through the applicant, if I understood the evidence correctly. Now the applicant does not recall that.
Madam Chair, Honourable Committee Members, the question as to who gave the order to eliminate Father Mkatshwa has not been answered. I am not asking you to answer that question, but in making your decision to grant amnesty, I would ask you to consider that. Thank you.
CHAIRPERSON: So what is your submission with regard to that? Are you not satisfied with the explanation given by Mr Loots?
MR KOOPEDI: It is clearly not satisfying, Madam Chair, in the sense that I would have expected this applicant to remember where the order comes from, he does not, the only thing that reminds him is the evidence from the other two applicants who have applied who say that they heard from him that he said Brig Smit gave the order. My submission is that it is not clear who gave the order and this I suppose is a question that should be answered. The applicant cannot recall as to whether Brigadier gave the order, he thinks that if it did not come from Brig Smit, then he would have given the order. I think that, more than anything else, that is guesswork, this is not what we would expect here and it is my submission that in terms of the requirement of full disclosure we would require more than that, or this Committee would require more than a guess. This Committee would require a disclosure of the fact as to from where did this order come. I mean it would not be difficult to trace where this order came from. It is not as if we sit with a situation where there were a number of people in a chain. The order may have come from Brig Smit to the applicant, from the applicant to the other two gentlemen. We have very few people involved here and my submission is therefore that the question is still not answered and it will be up to the Honourable Committee to decide as to when they grant amnesty, or if the decision is to grant amnesty, can it grant amnesty when this question has not been answered. Thank you.
CHAIRPERSON: Mr Steenkamp.
ADV STEENKAMP: Honourable Chair, Committee Members, there's no further submissions I can make or take this matter any further. Thank you.
NO SUBMISSIONS BY ADV STEENKAMP
CHAIRPERSON: Thank you very much Mr Roux and Mr Koopedi for your assistance in this matter. Our Judgment is reserved.
MR ROUX: As it pleases you Chairperson.
CHAIRPERSON: Mr Roux I know that you will not be appearing in the next matter, so you are excused.
MR ROUX: Thank you Chair.
CHAIRPERSON: Mr Steenkamp, which matter is enroled for hearing after this?
ADV STEENKAMP: Honourable Chairperson, I see some of my colleagues have appeared here. The next matter will be that of Mr Olifant in the Umzimhlope and Dube Hostels. I see it's 11 o'clock. I don't know whether or not the Committee would like to take a tea adjournment at this stage and we can just rearrange.
CHAIRPERSON: You've been saved by Mr Lax. We'll take a five minute adjournment.
COMMITTEE ADJOURNS
