Amnesty Hearings

CHAIRPERSON: Good morning. We want to start the proceedings. For the record it's 30th May 2000 and we are still busy with the amnesty applications of Coetzee and others. Mr van den Berg, what is your position? Have you got any further witnesses you intend to call?

MR VAN DEN BERG: No, Mr Chairperson, there are no further witnesses.

CHAIRPERSON: Is that the case for the - on behalf of the next-of-kin?

MR VAN DEN BERG: That's the evidence which the family wishes to adduce.

CHAIRPERSON: Ms Thabethe, what witness are you calling?

MS THABETHE: None, Mr Chairman.

CHAIRPERSON: None. Thank you Ma'am. Yes, I think that takes care of the formalities in regard to the evidence. We accept that you are in a position to address us, Mr Visser, I'm quite sure. I've looked at what is before us.

MR VISSER: Chairperson if you wish me to start, yes, I am in a position to continue. May I do so immediately?

CHAIRPERSON: Yes, certainly.

MR VISSER IN ARGUMENT: Chairperson you have before you the product of what we attempted to place on paper in regard to the facts and the background as well as the law in regard to the present application. Chairperson, although the document may not contain every possible argument, or every possible reference to every possible part of the evidence as that would have been quite impossible, we did attempt to make it as comprehensive as possible.

CHAIRPERSON: ... (indistinct - no microphone)

MR VISSER: Yes. Chairperson, just before I start, if once you read through this document, you will find a lacuna from page 57 to page 68.

CHAIRPERSON: Yes.

MR VISSER: Now, Chairperson, as Mr de Jager would say, those pages you don't have to read, because they don't exist. For some reason the computer decided that it was time to go to 68 from 57 and I realised this too late to change it last night.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: Yes, though everything is there and the paragraph follows, it's just the page numbering that went awry.

Chairperson, I'm going to take you through the written argument if I may. You will please stop me if I'm going too rapidly over certain parts, if you want me to - because I do intend to go fairly quickly over the first portion.

Chairperson for the sake of your convenience ... (intervention)

JUDGE DE JAGER: Yes, I think up to page 47 is a legal argument and you've fully put it and you could go, as far as I'm concerned, fairly rapidly over it.

MR VISSER: Thank you Chairperson, I thought that might be the position.

For the sake of your convenience we've given you the references in regard to the applicants for whom we appear, the bundles, the page numbers, the exhibit numbers, etc Chairperson and then at the top of page 1 we've given the I.D. numbers etc. The one thing that I seem to have forgotten to do, was to give you the amnesty application numbers. I do apologise for that oversight.

Chairperson, as far as the amnesty that is applied for, there's a difference amongst the applicants for whom I appear, Coetzee, Pretorius, Mong, Williams and Ross, all of them apply for amnesty for any unlawful act, omission or offence, I'm reading from page 2, committed in regard to the abduction or the man stealing as it is called in the Criminal Procedure Act and unlawful detention of Nokuthula Aurella Simelane, during or about August/September 1983 at the Carlton Centre as well as any other possible offence or delict perpetrated by them in the course thereof.

JUDGE DE JAGER: I just want you to answer something. They're not applying for murder?

MR VISSER: No, none of them.

JUDGE DE JAGER: None of them, none of the ...(intervention)

MR VISSER: ...(indistinct - no microphone)

JUDGE DE JAGER: That wouldn't be included in the term "as well as any offence and delict perpetrated by them during the course thereof"?

MR VISSER: No, Chairperson, quite correct. The offences that we could identify were the unlawful abduction or unlawful arrest and the unlawful detention of Simelane and obviously if you consider to grant amnesty, you will confine it to this particular incident and where the Act speaks of offence or delict perpetrated for which you can give amnesty, it will obviously be confined to that and won't go further. I make it quite clear that none of my applicants apply for murder of course.

Chairperson, then Coetzee, Pretorius and Mong apply in addition for amnesty for their unlawful acts, omissions or offences committed in regard to the assault and torture of Simelane during the same time, both at Norwood and at Northam, as well as any other possible offence or delict, again excluding the issue of murder.

Chairperson, the other possible offences which we've listed at page 3 are possibly conspiracy and/or being accessories before and after the fact in regard to the arrest and in regard to what followed thereafter, defeating the ends of justice and any other offence which may be competent finding on the facts and as may be applicable.

Chairperson, you know that we have incorporated Exhibit A, the general background, we just set out what that entails. We go on to page 4 where we deal with the conflict of the past in the words of Section 20 of the Act. We say in paragraph 3 that that conflict was a political conflict, Chairperson. We've given some views from different people about that and we say, Chairperson, that has been accepted by Amnesty Committees at this stage, so no further argument is required.

The issue of whether there was a war situation, surprisingly that from time to time is still contested. Chairperson we deal with that and at the end, Chairperson, we refer to the amnesty decision of the original Amnesty decision in the Cronje case at page 9 where it was found that that conflict of the past, 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 were responsible for internal security. Their functions were extended beyond the primary police function of combatting crime. Violence escalated since 1976 and during the 1980's a full-scale revolutionary war developed in South Africa. It became a primary task of the police and more specifically the Security Police, to counter what was then seen as a total onslaught by the liberation forces. Why the police were used, Chairperson and why the brunt of the fighting of the revolutionary onslaught fell on the police, we deal with a little later, but I can mention it just in passing now, is because of the Defence Act which did not allow, which does not allow the Defence Force to fight against its own citizens, obviously.

Chairperson, we deal briefly with the perspectives and objectives of the liberation movements. It is common cause at this stage, in my respectful submission, over to page 11 where we deal with the perspectives of the South African Government, starting out from a position of defence and going over more and more to a position of offence. We deal with that up to page 13. It speaks for itself.

Then we deal, as I said a little while ago, with the Security Forces and the position of the Security Branch and the Special Task Forces, page 13 and we also deal, Chairperson, with Security structures.

My attorney has just drawn my attention to paragraph 21. I'm not sure whether he's saying there's something wrong there. Oh, the question of legitimate targets, yes. Well Chairperson, we all know who the so-called legitimate targets were, they were policemen and we mention in paragraph 20 and 21:

"The drive of the ANC/SACP Alliance Strategy and Tactics included rendering the country ungovernable and in pursuance of that objective, murder and arson, intimidation and/or damage to property were committed."

And then we go on at twenty-one and say:

"Collaborators, inter alia, were identified as legitimate targets etc".

And then of course we know about policemen and those persons who were considered to be collaborators of the police, they were all legitimate targets.

Chairperson, we were at page 14. We refer briefly to the fact that there was an immense structure of Security structures in the old Government's attempt to stem the tide of the revolutionary onslaught and what we say in paragraph 43, is the applicants were all part of such operational structures, instituted by Government, which they believe were properly authorised in terms of their creating, operational funding and utilisation.

As far as Security legislation is concerned, Chairperson, the important submission there is that we all knew and it has been accepted by the Amnesty Committee, that the Security Legislation did not afford the Security Police sufficient legal grounds on which to counter the revolution and as time went by situations were encountered by members of the Security Forces which compelled them to act illegally and I give some references to some of the evidence there in paragraph 45.

Chairperson, the whole point under political settlement, the whole point towards the latter years, from the mid-eighties onwards, was that the police at that stage and when I refer to police I mean the Security Branch, had come to realise that the war was not going to be won, one way or the other, and they considered more and more their actions as a holding action in order to allow the Government and interested political parties to come to a political settlement and that was also reflected in the Amnesty Committee decision in the Cronje case, which I refer to in paragraph 48.

Chairperson of course, during this time pressures were brought to bare from the top on policemen through the ranks from the Generals downwards, to counter the revolutionary onslaught and to sew the so-called normalisation of the situation, which was pressure that was maintained. There were pressures from politicians and words and phrases were used such as eliminate and take out etc., which left the impression with policemen that that is exactly what they were meant to do. I think you were on the Panel of the Human Rights Violations Committee in Cape Town when Brig Schoon was asked: "Now what, after you've listened to all sorts of interpretations of what the word eliminate meant" and Brig Schoon was asked: "Now what do you think does eliminate mean?" and he said: "It means just one thing to me, it means kill" and clearly that was in the minds of many, if not all the policemen who find themselves before you in applications for amnesty.

Chairperson, we've given some extracts from ...(indistinct) in paragraph 52, coming from the then Minister of Defence, Gen Magnus Malan. He talks about: "It is the RSA's policy to put its case and defend and safeguard itself offensively, with all the might at its disposal against any form of foreign aggression or internal revolution, whatever the source"

and he says:

"Let me place it clearly on record once again that the ANC and its fellow travellers are constantly threatening our security in this country. I want to make it clear again, I make no apology for doing so, that we shall do everything possible to sniff out and locate the ANC and take action against them wherever they may be. We shall look for them wherever and however we like"

and again:

"The SADF will not hesitate to root out terrorists wherever they may be, whether it's in South West Africa, the Northern Transvaal or our residential areas or cities".

Well, of course, Chairperson, that could never have happened because the SADF couldn't have done that, but be that as it may. And then lastly:

"The Security Forces will hammer them wherever they find them. What I am saying is the policy of the Government, we shall not sit here with our hands folded waiting for them to cross our borders, we shall settle the hash of those terrorists and fellow travellers and those who help them."

Chairperson, that was the type of speech, the type of propaganda which one heard over radio, over television, read in the newspapers.

CHAIRPERSON: Is this after the Simelane incident?

MR VISSER: This was in fact after the Simelane incident, but this started, I'm just giving you this as an example, Chairperson, but this commenced way back in the early 1970's already, as we well remember and Vlok in fact, in his evidence in the Cosatu/Khotso House amnesty applications and I gave you the extract there, confirmed that Chairperson. In fact he apologised, did Mr Vlok, by saying that he himself was guilty of instilling that kind of emotion in the members, within the ranks of the members of the South African Police.

Paragraph 56 perhaps, Chairperson, General van der Merwe's evidence, that is in his written presentation to the TRC which was handed in as P46 and which we all know about, page 4, paragraph 6, he says:

"The South African Police were subjected to enormous pressure to try and stabilise the situation by, amongst other things, arresting and detaining activists who played a significant role in the unrest, all charging them and bringing them before Court"

and then he went on to say that a grey area developed because there were situations which could not be dealt with in the ordinary course of events in terms of the Police Act which called for extraordinary measures to be taken and the original Amnesty Committee, Chairperson, in paragraph 57, just to answer your question: On the other hand the police were pressured to maintain law and order, to deal with terrorists and to guarantee the safety of ordinary citizens against incidents such as the Church Street bomb, the Magoo's Bar bomb, the St James Church massacre" and may I add in the present case, the Black Christmas which was envisaged for 1983, I'm sorry it was 85 yes, the murder of farmers and hundreds of other incidents of terrorism and killings. This pressure did not only come from politicians, but also from the business sector, farmers and ordinary citizens. Words such as eliminate and take them out, pursue them, pay them back in their own coin, "betaal hulle terug in eie munt", do to them what they're doing to you, were used. According to the evidence of a number of applicants, they understood this to be authorisation to use bombs and hand grenades and in some instances to eliminate or kill certain people. The fact that incidents did occur, which must have been authorised by officers in high command or in some instances were authorised or condoned by politicians like the bombing of Cosatu House and Khotso House, led to a growing perception that the deeds met with the approval of the Government. In certain instances, members of the Security Forces were decorated for their actions in combating the total onslaught. In the end the conflict ended in a vicious circle. A gruesome attack would lead to gruesome counter-measures which would in turn lead to even more gruesome acts of revenge. This unfortunately forms part of our history and the conflict of the past.

Chairperson, the position of policemen in that struggle, we deal with it, it's self-explanatory, Chairperson. There are references again to both the amnesty decision in the Cronje case and evidence of Gen van der Merwe which came to be accepted by the original Amnesty Committee and upon which the Jack Cronje amnesty decision was based. We deal with the perception that they had, Chairperson. It really is an extension of what we've just quoted to you from the passages which I've just read.

Dealing with their personal background, Chairperson, the Amnesty Committee has made a finding about that. We submit that it is a quite accurate finding and that it applies also to the amnesty applicants presently before you.

As far as personal gain or malice is concerned, Chairperson, there was no suggestion in the present application before you that that was so, but we thought it well to give you the reference to Vlok's evidence where he talks of:

"Even if it was misguided, these people and he's referring to the members of the Security Forces, did it for us, the politicians, and for the country and therefore we cannot now distance ourselves from these people who gave everything, their careers, their families, their friends, they sacrificed all this for the country"

and he says, he goes on to say that:

"They did this in the execution of commands as they understood it and that in that sense they did that as part of their duties and without malice."

Chairperson, we, in paragraph 77 at page 24, we just deal with the issue of armchair approach and we give some quotations from what was, from evidence that was led before the Human Rights Violations Committee of the TRC and the one, Chairperson, that is quite a touching one, well there are two, the one is Major Williamson, the middle of paragraph 77, who said, he quotes from Klasovitch, which says:

"That state of circumstances from which an event proceeded, can never be placed before the eye of a critic exactly as it lay before the eye of the person acting, because above all it is almost impossible that the knowledge of a result should not have an effect on the judgment past on events which preceded it"

and then a member of the delegation of the Pan Africanist Congress, the PAC, said that:

"While we are sitting here listening to each other in turn, the situation was not the same there. Nobody was there to listen to anybody, to explain: "You see now, I'm going to attack a church and these are the reasons". There is no such thing in war."

Chairperson, we deal with legal issues from page 25 onwards, the reference to the Constitution and the Promotion of National Unity and Reconciliation Act, the TRC Act speaks for itself. We talk about the requirements of the Act, Chairperson. It's now well established, but where Section 20 refers to the requirements of the Act, it means to refer and intends to refer to the formal requirements as opposed to the additional requirements, which the section requires of applicants.

We deal with the question of the application Chairperson. The application, in brief, means that which is presented to you at the day when the amnesty application is presented to you and the evidence is heard and we base that on the authorities which we mention, not that what is stated in the original application form is irrelevant, we're not saying that at all, but what is relevant, as far as full disclosure is concerned, is that what you heard in the full testimony of an applicant before you.

Chairperson, page 30, we refer just to the fact that there is no onus of proof before a Commission such as this. We give the references. We refer also to the well-known Appellate Division case of Attorney-General Transvaal vs Botha at page 30 and where van der Heever, J.A. said:

"If the Legislature had intended, in the section that he was dealing with, to place an onus on an accused where none had existed before under the common law, one would have expected it to express such intention in clear and unambiguous language"

and then over the page, Chairperson, the bold lettering there, Section 113(1) is silent on who, if anyone, is to satisfy the Court and what standard of satisfaction is required. Now that section reads exactly the same as the TRC Act in Section 20 because that speaks of the Committee that has to be satisfied and we say the same situation prevailed in the case before Justice van den Heever. He goes on to say he does not specifically place any onus on the accused by contrast where the Legislature is ...(indistinct) to place an onus on the accused, it does so unequivocally.

And we give you other examples as well, page 32, perhaps the quotation Chairperson from the Afrikaanse Pers Beperk vs Neser, where it deals with satisfy:

"The Court finds satisfy, it does not mean prove. I take satisfy to mean therefore that the Court must feel that there is a fair probability that...",

so you will be satisfied on the probabilities Chairperson, without recourse to an onus of proof.

If we can just refer your attention also to the bottom of page 33 where it refers, Chairperson, to the AZAPO case and where Justice Mahomed, as he was then at that stage, Judge of the Constitutional Court held:

"It was for this reason that those who negotiated the Constitution made a deliberate choice..."

No, that's not entirely - what this really deals with Chairperson is the movement away from formalistic approach and particularly in the TRC Act, it was found by Justice Mahomed that there the point was that as many as possible - or amnesty should be granted in as many cases as possible and he says that the reason for that is that those who negotiated the Constitution, made a deliberate choice preferring understanding over vengeance, reparation over retaliation, Ubuntu over victimisation.

I go on to page 35, Chairperson, where we deal with acts associated with a political objective and we have previously in Johannesburg before you had occasion to discuss that issue. It is true, Chairperson, that in normal civil life, the taking of one single life is not justified, except where there are well-known exceptions provided by Law, but we say Chairperson, that acts associated with a political objective, in the sense that it ought to be applied by the Amnesty Committee, must be seen against the background of the war situation and the political aspect thereof.

We say, Chairperson, the words in Section 20(1) used by the Legislature are significant because it talks of "an act associated with a political objective", whereas previous legislation spoke of an act with a political objective. We refer you to those because Chairperson in Section 20(4) of the TRC Act, it provides, I'm referring to paragraph 107, it provides in applying the criteria contemplated in (3), that is of Section 20:

"The Committee shall take into account the criteria applied in the Acts repealed by Section 48"

and those are, Chairperson, and I've quoted them there:

"The Indemnity Act of 1990, the Indemnity Amendment Act of 1992 and the Further Indemnity Act of 1992."

And Chairperson, just because the Act obliges you to apply the criteria that was applied in those Acts, we referred you to one of those Acts, that is the Further Indemnity Act 151 of 92, which was the last one and it's quite specific that the act that was supposed to be considered in terms of that Act, was an act with a political objectives and it had to be commanded or performed with a view of achieving a political object and we say, Chairperson that the present TRC Act is far more lenient in its approach and in applying the standard of the act having to be associated with a political objective, because that is more an objective test, rather than a subjective test.

We refer you at page 36 to the type of indemnities, pardons and immunities granted, Chairperson and some of them one can't really believe that they could have been granted and that they could have been with a political objective, but we make the submission, Chairperson that that was probably done at page 38 because it was considered necessary:

"for the promotion of peaceful constitutional solutions in South Africa"

that is the wording of the 1990 Indemnity Act and

"in order to promote reconciliation and peaceful solutions",

the Further Indemnity Act 1992 provided for. And we say in the present case in the TRC Act, Chairperson, we know that it was your function inter alia to promote National Unity and Reconciliation which brings it to the same point.

Chairperson, as far as offence and delict is concerned, we deal just briefly in 117 with the ambiguities in the Act, there's nothing we can do about it, the best you can do is to attempt to interpret it and we submit in paragraph 120 what the correct interpretation should be and we say, Chairperson, that it is submitted in 121:

"That the uncertainty and the ambiguity referred to above may be obviated if the words act, omission or offence are simply to be interpreted to mean offence or delict because that is what Act in Section 20 speaks of elsewhere".

Chairperson, then we deal with each of the Sections 20(2)(a), 20(2)(b) and in 20(2)(b) we refer to the inherent paradox where it is surmised that application for amnesty can only be made where a person, where a member of the Security Force has acted within the scope of his authority, his express or implied authority and within the boundaries of his duties and we say that's an inherent paradox, Chairperson. We are happy to say that at this stage currently, this matter has now been put to rest in the Khotso House decision, pages 5 to 7 where it was held, I'm referring to paragraph 129 now, Chairperson, where it was held that the phrases or the expressions "in the cause and scope of his duties and within the scope of his/her express or implied authority" mean no more than to indicate that a member of the Security Forces or an employee of the State have locus standi to apply for amnesty for that which was done while he was acting as such, namely as a member of the Security Forces or as an employee of the State and where he was about the business of his master.

In the Khotso House Amnesty Decision, which you can read Chairperson if you wish, pages 5 to 8, a study was made in regard to the phrases which I've just mentioned and it was felt that an act, omission or offence committed by policemen will be regarded as an act, omission or offence within their express or implied authority, if it is committed in the execution of the functions for which they were appointed, or in the affairs of, or business of the master, or provided that the servant is doing his master's work or pursuing his master's ends. Now his master's ends, Chairperson, was to fight the revolution with all the might at its disposal, as I quoted to you earlier. This would apply to all acts, omissions and offences which were related to the duties of a policeman or an employee of the State, "Wat in verband staan met sy pligte". And then Chairperson, the latest and perhaps you haven't had the occasion, or you might have, it's the latest decision on this issue, is the Amnesty Decision in the Bopape case page 14 Chairperson, where that Amnesty Committee consisting of four Commissioners of which, five I'm sorry, of which Judge Miller was the Chairman, Justice Ngcobo and Mr de Jager and Adv Gcabashe and Mr Moloi, Jake Moloi, were members, held at page 14, it's a very brief paragraph in fact, if you haven't had opportunity to have it before you, may I just read it to you? I quote:

"It would appear that Section 20(2)(b) of the Act contains a paradox. If a narrow little interpretation is given to the phrase 'any act or omissions which constitutes an offence or delict ... and which was advised, planned, directed, commanded, ordered or committed ... by ... any member of the Security Forces of the State ... in the cause and scope of his/her duties and within the scope of his/her express or implied authority', then it may be concluded that no policeman or policewoman who wilfully committed an offence while on duty, acted within the scope of his/her express or implied authority, as no statutory provision or term of employment provided any authority to any member of the Police Force to act unlawfully. Such an interpretation, when taking into consideration the whole context of the Act, is clearly in conflict with the spirit of the Act and the intention of the Legislature which is obviously to include members of the Police Force in the amnesty process and not to deprive them of the opportunity of being granted amnesty in respect of offences committed by them which were related to their duties."

That's the end of that quotation.

Chairperson the Act goes further and it also deals with the issue of authority in Section 20(2)(f) and I submit with great respect that it cannot be gainsaid that the applicants in the present application at the very lowest, considered and believed bona fide that what they were doing, they were doing in the cause and scope of their duties. They were certainly not doing it from a personal, or for personal gain or for personal motive and we say, Chairperson, that this comprises a subjective test.

As far as proportionality is concerned, Chairperson, we quoted for your convenience the provisions of Section 20(3) and we deal with the issue of proportionality from paragraph 138 and we say in paragraph 139:

"In normal civil life and circumstances outside a war situation, the killing of a single human being is not justified, barring certain well-defined circumstances such as self-defence etc"

but we say:

"The amnesty process authorised by the TRC Act, presents another exception, namely the gross violations of human rights which were perpetrated in and during the conflicts of the past, thus proportionality for purposes of the TRC Act, is always to be interpreted against the background of the conflict of the past, which was a war situation and it is trite that in a war, people are killed."

We say, Chairperson, in paragraph 142:

"Furthermore, proportionality has to be interpreted in view of and in relation to the political objectives sought to be achieved"

because that's what Section 20(3) says. What this simply means is that the act, omission or offence must objectively be reconcilable with whatever that political objective was.

We go on and this is the last I'm going to refer to under this heading, it's paragraph 143 Chairperson. It's our submission that in the case of members of the SAP that political objective was to confront the liberation movements and to oppose the revolutionary onslaught in all its form. That being so, it is submitted that when an applicant asks for amnesty for gross violations of human rights of a member or supporter of a liberation movement, his act, omission or offence will normally, or at least prima facie be proportionate to the political objective stated above, because that's what people do in war Chairperson, they attempt to neutralise each other and we say that in the present case, Chairperson there wouldn't be a problem with proportionality. Simelane was not killed by the applicants, she was not murdered by them, she was subjected to severe torture but that was explained by Coetzee as being the modus operandi and you've heard this often in many instances of amnesty applications which you've heard that people were intimidated in order to recruit them so that they would fear that if they went away and turned against the police, that this would be the treatment that they would have to expect if they were ever arrested again.

CHAIRPERSON: How long was she in their custody, Mr Visser?

MR VISSER: Four to five weeks, Chairperson. I will come to the evidence briefly, in a brief moment, but I think what you need to know with your question is that the evidence was from Coetzee, Mong and Pretorius, that she was, the serious assaults on her took place at Norwood which was over the weekend when she was arrested, the Saturday and the Sunday and that she was transported to the farm in Northam - I see it's mis-spelt on the record, it's N-O-T-R-H-A-M, where she was assaulted during the course of that week as well, but towards the end of the week, she started co-operating and thereafter there were just occasional slaps or punches in the ribs when they thought that she might not be completely truthful with them.

The evidence of Veyi and Selamolela was different, they said that she was assaulted throughout the period at Northam and that she was in fact in a very weak condition during the last week of her detention at Northam. I think that's the answer that you wanted me to give you.

CHAIRPERSON: Yes.

MR VISSER: As far as full disclosure is concerned, paragraph 43 Chairperson, it is difficult to think, page 43 paragraph 147, it's difficult to consider anything which the applicant's have not told you. They've made very, very complete and full disclosure of what they remember of the facts. The only basis on which it might be found that they failed to make a full disclosure, would be on the basis that telling a lie, equals non-disclosure but Chairperson, with great respect and I'll come to that, there are some contradictions on the evidence and certainly it's a matter that occurred seventeen years ago and one has to expect that people's memories are not good enough to remember the detail properly and correctly and if mistakes have been made in their recollection, certainly that does not equal telling a lie and Chairperson, certainly there is nothing that jumps up out of the record and hits you in the fact where it is clear that either Coetzee or Pretorius or Mong or for that matter Williams or Ross lied to you.

As far as the relevant facts are concerned Chairperson, that has also been laid to rest in the amnesty decision of the London Bomb at pages 324 Chairperson. We now know that relevance means relevant to the facts which are under consideration by the Amnesty Committee and that could lead to the proof or disproof of those facts and that is all that is relevant, so when the Act talks of a full disclosure of relevant facts, it is narrow-minded and it refers to those facts which are pertinent to you coming to a decision.

Page 45, Chairperson, the issue of illegal orders, that is exactly what the amnesty process is about and we go on then at page 46, Chairperson, to the background of the present application. We've dealt with that in part already. You remember the evidence of Coetzee, I'm not going to go through all of that again. The fact of the matter is that this unit, of which Coetzee and the other applicant for whom we appear and for whom my learned friend Mr Lamey appears, were part of an intelligence gathering unit and their function was to turn people to become informers, to deploy them in order to obtain information and intelligence on all the aspects of the enemy and this is what they did.

Chairperson, I now finally come to page 47, paragraph 170 and I will deal with this in more detail. Please would you give me an indication, Chairperson, if you want to take a brief break? I can break at any time.

CHAIRPERSON: Yes. ...(indistinct) We'll take a brief break at this stage just to revitalise ourselves.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes, Mr Visser, you were still busy.

MR VISSER: Thank you Chairperson. I've been informed that the interpreters say that I'm going too quickly and that they find the "legal jargon that I use" and the "other nonsense that I'm talking" impossible to translate, so I'll have to go a little slower.

JUDGE DE JAGER: I don't think they'll be able, in any event, to interpret your Heads of Argument in full, so if they haven't got the paper before them, even people listening to you haven't got the paper before them, they won't be able to follow.

MR VISSER: Chairperson, no, we did give copies to the interpreters to make their task easier, so I will just make a point of referring when I jump paragraphs, to the paragraph numbers so that they can follow where I am.

I'm starting at paragraph 170, page 47 Chairperson. Chairperson, it was the evidence of Coetzee and Pretorius that during 1983 through the efforts of an informer who was SWT66, two police agents, that is RS 243 who was Mkhonza and RS 269 who was Langa, since deceased Chairperson, had infiltrated into the so-called Transvaal Machinery, Mr Thwala referred to it as the Transvaal Urban Machinery of MK in Swaziland and its sub-structures and during approximately August to September 1983, Coetzee was informed by Mkhonza that an MK agent and courier was on his way to the RSA to meet with him. Coetzee's evidence was that Simelane was to meet with - it later turned out to be Simelane of course, ...(end of tape)

In cross-examination Mr Lamey put it to Coetzee that according to Mkhonza he was instructed by Mpo to meet with Ms Simelane at the Carlton Centre where she had certain material. At that stage he did not know,"

and I insert the word "whether" it was hard material, weapons, ammunition or soft material, documents and other information to hand over to him and Coetzee agreed with that statement.

Chairperson, if I may just pause for a moment. We refer here to Mpo and the reference to Mpo from Coetzee and Pretorius was to Curtis, it wasn't to Mr Gilbert Thwala, and this was quite clear from their evidence because they gave you a photograph of when the Mpo that they referred to was arrested together with certain weapons and ammunition in a building, in a room. We never, for a moment, were alerted to the fact that Mr Gilbert Thwala was going to say that he was the one, he was the Mpo that gave instructions to Mr Mkhonza. I have read through the cross-examination of Mr Mkhonza by Mr van den Berg and with hindsight now, it is clear that he did refer to Mr Thwala and not to Curtis.

Chairperson, with respect, in the present case it matters not really one way or the other whether it was Mr Thwala that gave the instructions to Mr Mkhonza or not. I cannot concede that it was Mr Thwala and not Curtis, but for purposes of your deliberations, Chairperson, we are quite happy to concede that it makes no difference and we're quite prepared, for purposes of your considerations, that you assume, as apparently Mr Lamey has done, that it was Mr Thwala who gave the instructions. We're not going to make an issue out of that.

Paragraph 174, Chairperson, when Mkhonza gave Coetzee this information of the courier coming in, he conveyed this information to his Commanding Officer, Brig Muller, who has also since died. They discussed on how best to deal with the issue and Coetzee says that they had one or two options, either to arrest the courier in the normal course of events and to take him to Court or to abduct the courier and attempt to turn him. Now Brig Muller decided on the latter option, Chairperson, and Coetzee agreed with him from the point of view that it made sense to use the situation to the best advantage of the Security Police from a viewpoint of intelligence gathering.

Chairperson, just to expand a little bit on that reference to Coetzee in the record, he explained to you that to have taken the courier to Court would have meant that they would have had to expose Mkhonza's identity at least and that they were not prepared to do and that was a serious consideration against taking her to Court, and rather abducting her with a view of turning her.

After receiving these instructions from Muller, Chairperson, Coetzee called a meeting at Norwood at the flats in the Custodum Apartment Building, which housed policemen in Norwood, and he intimated the fact to the other members and we know who they were, they were Pretorius, Mong, Williams, Ross, Veyi, Mkhonza, Selamolela and Radebe, and that appears from paragraph 177, and he said to them that the courier was to be arrested. Now Chairperson, the meeting between the courier and Mkhonza took place at the Fun Foods Restaurant in the Carlton Centre and according to the pre-arranged plan, Mkhonza was to lure the courier to the parking basement of the building where the courier could quickly and decisively be grabbed, subdued and taken away. Now Coetzee said it was only at the time of the meeting that the members realised that the courier was a woman, who turned out to be Simelane, and I deal with that a little later on. The plan nevertheless went ahead and it transpired that Simelane accompanied Mkhonza to the basement where she was grabbed.

Simelane turned out to be the person who had received training, who was part of the MK Urban Machinery in Swaziland and apparently a trusted courier. She was transported to Norwood in the boot of the car, together with Radebe.

At the Custodum apartments, Chairperson, Coetzee and Pretorius parked their car out of sight, according to them, of the entrance where Simelane was brought and placed between them on the rear seat of their vehicle, while some of the other members went to see whether the coast was clear to take her up to the top floor of the building without being seen.

Coetzee and his unit used the servant's quarters on the roof, Chairperson, because their operational office, there was a shortage of accommodation and that's the reason why they used this floor on the flat building.

Pretorius and Coetzee told you that while she was seated in the car between them, Coetzee and Pretorius had their first opportunity of speaking to her and Coetzee said with a view of commencing the process of turning her, they adopted the method of coming across aggressively and also of confronting her with information about MK, of which they were aware, in order to demonstrate to her the futility of any resistance by her.

In the process both Coetzee and Pretorius assaulted Simelane by slapping her in the face with the open hand. It bears mention that Coetzee testified that he had noticed some bleeding and the swelling of one of Simelane's eyebrows due to an injury, or injuries which she must have sustained during the grabbing action and/or transportation, up to that point. In due course Simelane was taken to the roof of the building where she was interrogated, where she was seriously assaulted or interrogated by all those present. After Simelane had been abducted from the Carlton Centre, Williams and Ross withdrew and they were not part, Chairperson, of what followed thereafter, apart from Williams, which I will refer to in a moment.

According to Coetzee, the abduction took place on a Saturday and he says he remembers that fact because he says when he wanted to speak to Muller again to report to him, he had to go to his residence and he didn't know where he lived, so he went to fetch Williams from his apartment, who was also living in the Custodum Flats, to take him to where Muller lived because he apparently knew where that was.

Paragraph 189. Thus Coetzee and Williams went to Muller's residence where a report was given by Coetzee to Muller. Muller decided that Head Office had to be informed and an appointment was telephonically made to see Brig Schoon at Security Head Office in Pretoria. He was the Head of C1 Section, Chairperson, and that Section dealt with, as it was defined by Acts and as it was known in the old days, with terrorists. The three of them went to Pretoria, that's including Williams, where they informed Schoon that Simelane had been abducted with a view of turning her and that obviously, that they want to go ahead to see whether they could recruit her as an informer. Schoon gave his blessing and agreement to the operation. They thereafter went back to Johannesburg.

According to Coetzee, Pretorius and Mong, Simelane was kept on the roof of the building until the following Monday when she was taken to the farm at Norwood and during her stay at Norwood in the course of the weekend, all three of them admitted and testified that she was seriously assaulted or tortured as well as interrogated.

The farm at Northam belonged to the in-laws of Coetzee. Because of Coetzee's evidence of the unavailability of any alternative, Coetzee had arranged that an outbuilding on the farm could be used by them. This is in fact confirmed in Exhibit C(C), the newspaper report of, I believe it was the Sowetan, Chairperson, where similar facts were told by Mr X, who turned out to be Mr Veyi, to the reporter.

On the farm, Coetzee, Pretorius, Mong and some of the black members interrogated Simelane in turn. All of them were present on the farm periodically and attended to other obligations on the Rand in between. Simelane was held in handcuffs and ankle cuffs. The handcuffs were removed during the day, but the ankle cuffs were kept on for the duration of her stay on the farm, to subdue her, on the one hand according to Pretorius and Coetzee, and to prevent an escape on the other, and that was also confirmed by some of the other witnesses.

During the first week of their stay at Northam, Simelane was still assaulted and tortured according to Coetzee, Mong and Pretorius. The evidence is that by the end of the first week on the farm, Simelane had commenced giving her co-operation and had given signs that she would be willing to work with them and according to the evidence, Simelane had by then already given some information concerning targets which were to be attacked. Those targets were in fact attacked on the 10th of September 1983, the Johannesburg/Durban railway line and power substations in Fairlands and Bryanston. Thereafter she was no longer assaulted or tortured except for one or two occasions when it appeared that she was holding back on information to, obviously to Coetzee and Mong and Pretorius, or when doubt arose with the interrogators as to her commitment to co-operate.

Chairperson, just on this point. If one had to speculate ...

CHAIRPERSON: Yes it is - to the best of my recollection, it's clear that these attacks in paragraph 195 were done by Coetzee and these people.

MR VISSER: Yes, no, there's no question, all of the applicants told you that Chairperson.

Chairperson, just on a question of - if you will allow me to speculate a little bit about the date of the arrest of Simelane, it would certainly fit in with all the evidence before you, if that arrest took place, I think it was on the 3rd, I made a note somewhere of it, Saturday the 3rd of September, because that would certainly fit in with the evidence of her having been kept over the weekend in Norwood and that she only started to co-operate by the end of the next week, which would be before the 10th because on the 10th, you will recall, was the date on which these explosions took place.

Chairperson, I go on at paragraph 196. According to Coetzee and Pretorius and Mong, Simelane gave information to Coetzee together with other information which he had, which led to the arrest of a certain Mpo, now Justice Ngedi, MK Cheche and 18 others. Now Chairperson, I will immediately concede that I might be making a mistake here because this is as I understood the evidence. I have looked at the record and I did not find it expressed as clearly as I do in paragraph 196. I think to avoid confusion I would ask you simply to strike out the reference to Mpo there and that we rather refer to this gentleman as either Ngedi or Cheche, because otherwise - it may be that I'm confused and I want to make that clear. Thereby I'm not saying that Ngedi was not know as Mpo, but I'm simply not certain - and others Chairperson, and we say that in order to protect Simelane, they were all arrested after she had been released.

Chairperson, Mr van den Berg put the date of May 1984 on the date of the arrest of Ngedi. That was certainly not the recollection of Pretorius and Coetzee and there seems to be a difference of opinion as to when that happened. Again I'm not certain whether that really is material, whether it takes the matter any further one way or the other. In my submission it doesn't.

Chairperson, coming back then to the position at the farm in Northam, paragraph 197, the evidence was that during her stay on the farm, Coetzee, Pretorius, Mong, Williams, Ross, together with Mkhonza, Veyi and Selamolela, carried out certain false flag operations by blowing up a power sub-station at Fairlands and Bryanston and the Railway Police blew up a portion of a railway track, not on the mainline to Durban, but a portion of a railway track on a side-line.

Coetzee stated that they learned from Simelane that it was her instructions to convey these targets to Mkhonza to be attacked. Now this may be appropriate at this stage to remind you that Mr Thwala gave evidence to say that this was denied, that although meetings were held by himself, Simelane and Mr Nyanda, that targets and the whereabouts of DLBs in the Republic were never discussed with Simelane. He also, if I understood his evidence correctly, seemed to indicate that they would not have given, he would not have given instructions for a particular target to be attacked, he would simply give a general instruction to say "Attack railway lines" or "attack power lines" or "attack power sub-stations" without specifying, he says, because it would be left to the operator to choose the targets at the hand of the safety with which they could do so, etc., etc. In any event he denied that he sent Simelane to give instructions as to the objectives that had to be attacked.

Chairperson, I go on at paragraph 198. The reason for the false flag operations, said Coetzee and Pretorius, was to protect Simelane in the sense that MK would believe that she had carried out her instructions and to lend credibility to Mkhonza and Langa, who were then understood, or taken by MK to be on their side. In fact, Chairperson, the ANC accepted responsibility for those explosions and we see that in the ANC presentation of May 1997 at page 79, and this was also confirmed by Mr Thwala, who said that he thought it was ANC cadres who executed these attacks.

We say, Chairperson, in answer to your earlier question, paragraph 200:

"All told, Simelane was kept a Northam for four to five weeks. According to Coetzee, Simelane was seriously concerned by the fact that she was exposed to so many of the black members."

You will recall there was also evidence of Immanuel having been there and perhaps another person, as well as the black members. They were from Mozambique, Chairperson, and they didn't really feature in the evidence before you, except that I believe it was Veyi that made mention of the fact, or Coetzee, I'm not sure who, but there where other black members, other than Veyi and Selamolela and Sefuti, who was also there from time to time and then there was Mothiba, that was there, you will recall he was referred to, or referred to as the father figure and then there was Radebe as well and Langa, so there were quite a number of them that frequented the farm and Coetzee, Pretorius and Mong went on to say that she requested them to keep the fact that she had turned, a secret from the black members. It was therefore not surprising, we say, Chairperson, that Veyi testified that he was unaware that she had been turned and that was put to Pretorius in the record, page 305. The greater portion of the time on the farm was taken up with creating cover legends for Simelane and versing her in the methodology of contact persons, contact places and the conveyance of information and instructions between her and the Security Police. I don't want to mislead, Chairperson, but I should have added here as well as the fact that she was asked to write out what she knew about the structures, and I refer to it later, I should have referred to it here and that took up a lot of time as well.

Coetzee testified, and this was confirmed by Pretorius, that she was officially registered as an informer at the Soweto Branch of the Security Police, although Coetzee who registered her was unable to recall her number under which she was registered.

Veyi's evidence, if I may mention it now immediately, is that he was not, he didn't know whether she was or wasn't registered, but he wouldn't concede it because he said if she was, Coetzee would have remembered her registration number and if he says he can't remember it, then he's not prepared to concede that she was registered. Be that as it may, Chairperson, paragraph 204. When Coetzee was satisfied that Simelane was turned and that all preparations for placing her back in Swaziland had been completed and accomplished, as far as possible, he arranged that Mong and Mothiba convey her from Northam to Potchefstroom where he and Pretorius were attending a meeting or meetings, which had nothing to do with Simelane. He said that Simelane was delivered, well they all say that Simelane was delivered to him, Coetzee and Pretorius, in Potchefstroom, who in turn delivered her to Radebe who was to be one of her handlers, together with Coetzee and Mothiba, for last-minute discussions and sorting out of any problems or concerns which she might have had.

JUDGE DE JAGER: Was it in Potchefstroom or on the road?

MR VISSER: Chairperson, you will recall that the evidence was that Mong and Mothiba delivered Simelane to Coetzee and Pretorius in the industrial area of Potchefstroom and from there she was taken by car, in Coetzee's motor car, I think the distance that was mentioned was some two kilometres to a different place, where she was handed to Radebe and then there was an arrangement made that Radebe would transport her to a place near Soweto where there are trees on the side of the road and that they were going to wait there and in fact Coetzee later came and met them there and they had their last discussion there and from there, Mothiba and Langa were given orders to transport her to Swaziland. My attorney says it might have been Radebe. I was under the impression it was Langa.

CHAIRPERSON: Your Heads say it's Radebe.

MR VISSER: I think, from the other side of the table, it seems to be an agreement that it must have been Langa. I'm quite convinced that the evidence was that it's Langa and that Radebe is incorrect, but I'll check it, Chairperson.

CHAIRPERSON: Yes.

MR VISSER: At all events, Coetzee, Pretorius and Mong all stated that this day was the last occasion upon which they ever saw Simelane. Simelane failed to honour the pre-arranged meeting between her and Radebe after two weeks - no, it must be Radebe, I'm sorry - after two weeks in Swaziland. As arranged in advance, the meeting arranged one week later at the same venue as a fall-back date, was also not kept for the next two weeks. Simelane also had the home telephone number of Coetzee, where she could make contact with him in an emergency but he received no call from her.

Coetzee and Pretorius and Mong couldn't give you any explanation as to what had happened, but Coetzee and Pretorius told you that they are fairly convinced that she was killed by members of MK who had become suspicious of her and that the probability exists that they had murdered her.

Chairperson, I must now deal with the conflicts in the evidence. First of all, there is the issue as to whether it was prior knowledge that the courier was to be a woman. Coetzee stated that they only realised that the courier was a woman when Simelane met with Mkhonza at the Carlton Centre in the Fun Foods restaurant. I give you the reference, it's page 18.

Mkhonza testified that he had known beforehand that it would be a lady he was to meet and that he had told Coetzee this. Now interestingly enough, in cross-examination of Mr Thwala, he stated that he did not tell Mkhonza who the courier would be. It is submitted, Chairperson, with respect, that this issue is not material and one way or the other does not have to have any effect on your deliberations. In fact, Chairperson and I think we concede this during our cross-examination of Mr Mkhonza, it may well be that Mkhonza did know and did tell Coetzee and that he might just have forgotten about it, or might not have heard it for some reason or other, so it's not a material point.

Now, the issue of the purpose of Simelane's visit is more important and more material, Chairperson. Mr van den Berg who appeared for the family of Simelane, put it to Coetzee that according to Mpo, which is Thwala, who sent her, Simelane was to come to the RSA only to establish a communications network and you will recall that was also his evidence, Thwala's evidence.

This statement is contradicted by Mkhonza, which we've already referred to, who stated that Simelane did not speak to him about a communications network - we give you the references, and testified that Simelane was to give him material. Now as Mr Lamey put it to Mr Thwala in cross-examination, there's a difference between hard - in Mkhonza's mind, there was a difference between hard and soft material and he thought it was to be, as I understood it, it was to be either one or the other, whilst Mr Thwala initially started off by saying material only refers to one thing and that is hard material, weapons and ammunition, but later conceded that Mkhonza might have considered that it might also be soft material, as put to him by Mr Lamey.

Paragraph 210, it is submitted that Coetzee's evidence, as supported by Mkhonza, must be accepted. Mkhonza suspected that the material could even have included hard material, weapons and the like. Chairperson, this does not detract from Coetzee's evidence that he had stated, as you will recall, I referred you to earlier that the purpose, the main purpose of the visit of Simelane as he recalls it, was to give information about targets, and I ask you to keep that in the back of your minds.

ADV GCABASHE: Mr Visser, just remind me. No material was indicated at all by Nokuthula Simelane at any stage, either at the beginning of the five weeks or towards the end of the five weeks.

MR VISSER: That is correct. There's no evidence before you that any material ever came to light, that's quite correct. Will you bear with me a moment Chairperson? My attorney has just found the reference, Chairperson, it's in the record - no, in the bundle, it was in fact Langa and not Radebe, that transporting her to Swaziland, so my learned friend Ms Thabethe was correct in her recollection.

MS THABETHE: It's page 18 of our bundle.

MR VISSER: Page 18?

MS THABETHE: Of our bundle, yes.

MR VISSER: Thank you. So Radebe is incorrect there, it must be Langa. Thank you.

Apparently there's also reference in Exhibit X, Pretorius's evidence at page 14 paragraph 55 which says the same thing and Pretorius's application, in bundle - page 473, apparently also says the same thing. Thank you, Chairperson.

Now as far as the assault or torture - I'm dealing with conflicts in the evidence at the moment, the assault or torture of Simelane is concerned, Chairperson, Coetzee and Pretorius testify that Simelane was assaulted at Norwood in the car and we've dealt with that and at the Custodum apartments and at Northam where she was choked with a wet bag being placed over her head in addition to being slapped in the face with the open hand and being punched in her back and sides with a fist by Coetzee, Pretorius and Mong, with the assistance of the black members. We give you the references. And he explained the reasons for the assault as follows, he said at the record page 27:

"The assaults on Simelane were committed with the objective of convincing to co-operate with the Security Branch and to convince ourselves that she was being sincere in her co-operation. When a newly recruited informer would be replaced in the system, he would have to be provided with certain information in order to establish communication channels. In this process it was thus unavoidable that the identities of other informers and/or agents had to be made known to him. If the person was not sincere, he would immediately make the identities of such informers and agents known to the enemy, which would surely lead to their death"

and Pretorius gave evidence along the same lines. Coetzee, Pretorius and Mong testified that Simelane was seriously assaulted only during the first week approximately, thereafter she received a few slaps against the head or in the face, according to Coetzee and Pretorius added that she may also have received a few punches in the side.

The evidence of Veyi and Selamolela is as follows, Chairperson. They were both represented by Mr Lamey. Now it was put by Mr Lamey that Veyi and Selamolela will testify that Simelane was interrogated and swollen in the last week of her being held on the farm and reference was made to the fourth week. Now whether it's the fourth or the fifth week, it's neither here nor there, but that was the evidence of Mr Veyi and that evidence is reflected in the record which I referred to there, 529. It was put by Mr van den Berg that Selamolela would say that Simelane was thrown into the zinc dam. I'm not sure whether this reference to Mr van den Berg is correct. Did you put that? Well, I've got Mr van den Berg down here, but it may be either my mistake or a mistake in the record, because I would have expected this from Mr Lamey, but be that as it may, it was put that Selamolela would say that Simelane was thrown into the zinc dam on the farm. Now Veyi took this a step further, by suggesting that putting her in the dam was part of the interrogation and the torture of Simelane. Later he added that this was done on instructions of Coetzee and that the latter was present when Radebe put Simelane into the dam. The evidence that Coetzee was present, was neither put to Coetzee for him to respond to, nor did Selamolela support this evidence. When the evidence about the putting of Simelane into the water as part of the torture was put to Selamolela by myself in cross-examination, he not only suddenly remembered it, but exaggerated on the story by suggesting that Simelane's head was submerged in the water, something which Veyi never testified to. We give you the reference. It is significant that Mr Lamey did not put it to any of the applicants for whom we appear in cross-examination either. The only reasonable inference is that Selamolela thought this up while he was giving his evidence. In all events, the evidence of Selamolela that Simelane was dipped under water, is contradicted by the evidence of Veyi in this regard. And we refer you to an extract of his evidence:

"CHAIRPERSON: Now you say that when Radebe put Ms Simelane into the dam, he had to help her not to drown. Did I understand that correctly, or what?

MR VEYI: What I am saying is this dam was used when she was tortured. He would put her in and then take her out of the dam.

CHAIRPERSON: Would he hold onto her, put her in the water and hold onto her, or what would he do?

MR VEYI: Yes, that is so.

CHAIRPERSON: Now if he left her, if he didn't hold onto her, what would have happened to her?

MR VEYI: Maybe she would drown because she was helpless."

No suggestion of any submerging.

It was further put and I say again by Mr van den Berg advisedly, I'll have to check that as well, with reference to Veyi's application, 567, paragraph 7, that Simelane's appearance had changed because of the assaults and that she could not walk. Coetzee, Pretorius and Mong admitted to her face being swollen during approximately the first week but denied any other unrecognisability or change of her appearance later on, in the sense of scarring, dislocation, swelling or whatever Chairperson. Selamolela stated that on the second occasion when he saw Simelane at the Norwood Quarters, her lip was cut, which was also supported by Coetzee, her face was swollen and her eyes were blue. You will recall that Coetzee said that in the car he noticed that her lip was cut and there was a bruise on her eyebrow, although he did not speak about a swollen face or blue eyes.

Veyi admitted to assaulting Simelane during her interrogation. He spoke about kicks and slaps. Selamolela was asked in cross-examination whether he saw Veyi slap and kick Simelane. His answers, we submit, were calculated to exculpate Veyi and he would not concede seeing it. According to Veyi, Simelane refused to say anything. Well that was strange evidence, Chairperson, but be that as it may. She would then be assaulted by kicking, punching and strangling her and putting her into the dam. We're now talking about Northam again. Veyi pretended that he was unwilling to assault Simelane and that when Coetzee, Pretorius and Mong were not present, she was not assaulted by the black members. In an article published in the Sowetan, Exhibit C(C)(3), where his version was published, there was a clear intention, in our submission Chairperson, on a reading of that report, to implicate the white officers. Also he kept silent about his own participation in the assaults. You will recall that I asked him about that and he said well, or words to the effect: "well that was then, I'm now telling you the truth because I'm now giving evidence."

We say in paragraph 222 that by his exaggeration of the assaults by the white officers on Simelane, he attempted to paint as black a picture as possible of the white officers. He suggested that four or five would assault her continuously and seriously and that she was kicked and trampled upon.

A statement, Chairperson and I've check this, by Mr Lamey, that Coetzee conceded that he had kicked Simelane, is not supported on the record. What he did say is, he said that it is possible that she was kicked while she was in Norwood, he never conceded to having kicked her himself.

Veyi and Selamolela patently, we say Chairperson, avoided answering questions concerning their own and each other's participation in the assaults on Simelane at Norwood, and we give you the records and we would ask you to read those passages and see the differences for yourself. In fact it appeared that Veyi was prepared to deny anything stated by Coetzee on principle, even the evidence of Coetzee that assaulting persons whom he wanted to turn, was his modus operandi. Now one doesn't know why Mr Veyi denied this because later he tendered it out of his own and I give you reference to the passage at page 565.

"MR VISSER: You, it was denied on your behalf that Coetzee was truthful when he says that his modus operandi when he turns a person to an informer, was to use the method of assaulting that person. That was for some reason or other denied by you, do you remember that? It was put on your behalf.

MR VEYI: Coetzee would assault a person if he was trying to recruit that person, that was the way he used."

So with respect, I don't know why it was denied in the first place.

Another example of this attitude, Chairperson, we say, is Veyi's assertion that Simelane refused to say anything, where the evidence is that she wrote out a statement over a long period of time, weeks in fact, that stands uncontested. Selamolela gave evidence that the black members interrogated Simelane in the absence of white members and that she attempted to identify persons from a photo album and that she did respond to questions. There's a direct conflict of evidence between those two.

Page 57, Chairperson, paragraph 226, Mr Lamey put it to Coetzee that Veyi and Selamolela would give evidence of torture with a shocking device. Now that was put in cross-examination. Now when Veyi gave his evidence, when he was asked about assaults on Simelane, he failed to tender this evidence. Even when attempts were made in re-examination to draw it out of him, he failed to give that evidence. A suggestion that there must have been a misunderstanding in the taking of instructions Chairperson, with great respect is disingenuous, there was either a shocking device and it was used or there wasn't.

Another example is the assertion by Veyi - Chairperson yes, I don't want to read all of this to you because that's going to take me an inordinately long time, I thought that as long as I could point you to the pages, it could be of assistance to you and where I don't deal with the contents of the record, unfortunately those are parts that I would ask you to please read for yourself.

Another example we say, is the assertion by Veyi that they, that is the Security Police, Soweto, had safe houses available in 1983, even though this flies in the face of not only the evidence of Coetzee and I will give you the references, but also of Mkhonza. Mkhonza says: "No, no, just as Coetzee testified, there were houses where the Mozambicans were accommodated." Mkhonza, although he did go on and say that at time informers were interviewed by their handlers at those houses and Chairperson that was his explanation why he referred to them as safe houses, but clearly there were no such safe houses at the time.

In his attempts to prejudice Coetzee and Pretorius, Veyi even suggested that he was told by Mothiba that they had murdered Simelane and buried her body near Rustenburg. Selamolela says he was not told this by Mothiba. We submit Chairperson, in spite of the attempts, according to Mr van den Berg to find the body, no success has been achieved by all accounts, we haven't heard of anything anyway. Selamolela never heard anyone, including Veyi, suggest that Coetzee and Pretorius had murdered and buried Simelane.

Chairperson, if I may at this stage, while I remember it, when Veyi was cross-examined by myself as to the circumstances under which Mothiba told him about this allegation that Coetzee and Pretorius had murdered Simelane near Rustenburg and how Mothiba knew about it, it was significant and interesting that Veyi then said: "But Mothiba was present." You'll recall that evidence, because there was no way, and Mr Veyi must have realised that, that Pretorius and Coetzee would go an murder Ms Simelane and then come and tell Mothiba that they did that and clearly that was in order to ward off that next question, that he said: "No but Mothiba was there, he was present."

And then, if I may again, with reference to Exhibit C(C), it is quite clear that that distinction was never brought to the attention of the reporter by Mr Veyi, he simply made the bald allegation that Coetzee and Pretorius murdered her near Rustenburg and buried her there, without any reference at all to him having been told this by Mothiba.

Paragraph 229, Chairperson, at the bottom of page 57, before we go on to page 68, it was put on behalf of Selamolela that Simelane was not assaulted at Norwood in his presence, that is in Selamolela's presence, although he could see that she was assaulted. Apparently she was assaulted in his presence on the farm at Northam. It was also put on behalf of Selamolela that he did not assault her at all, but only grabbed or held her and he put the bag over her head. Now the one thing that Veyi said, Chairperson, that must be taken as true in the circumstances, is that not only was Selamolela present during the assaults on Simelane, but that he also participated therein and we're referring to Norwood and I give you the references, as well as to the farm at Northam. Then of course there was re-examination Chairperson, which took the matter no further. The conflict of that evidence, we say, is an important conflict and it remains.

The credibility and the reliability of Veyi's evidence, we deal with it at page 68 paragraph 230. We say generally speaking Veyi was a poor and obviously prejudiced witness, Chairperson. The unreliability and lack of credibility of Veyi's evidence is illustrated by an extract of many examples on the record and we mention them. The suggestion that the black members never washed when they were on the farm, one doesn't know why he said that, but he said that. That is a period, according to his evidence, of two days at a time, two days and two nights at a time, while he obviously told Ms Chetti of the Sowetan that they washed at the tap, referring to Exhibit C(C)(3). Selamolela tendered the evidence that they washed at a pump and that Simelane washed in the dam. Coetzee, Pretorius and Mong also spoke about washing in the dam. That's the one point. Other than that, his suggestion that Simelane was not fed properly, that is Veyi's suggestion, because they were only give rat-packs. Now incidently Chairperson, those ration packs are perhaps not very tasty, but it contains food put together by experts to provide a balanced meal for fighting men in the field, we know that and that they went to Northam to buy food, while he admitted to Ms Chetti that they had "braais" on the farm. One wonders why he slanted that evidence, but he did. Selamolela did not suggest that Simelane was poorly fed.

The evidence about seeing Simelane in the boot of Coetzee's car, is another aspect, Chairperson, which should raise serious doubts about the credibility and reliability of Mr Veyi. He gave evidence that he saw Simelane on the floor of the boot of Coetzee's car at a crossing, Fochville crossing near Potchefstroom, and he says that Coetzee had ordered him to drive from Soweto to come and meet him at that crossing and when he arrived there, Coetzee opened the boot, showed him Simelane and then told him to go back. And we say, Chairperson, that in normal human experience, that is just not probable, that something like that would have happened, particularly if Veyi is to be believed that it was his conviction, or is his conviction that Coetzee and Pretorius murdered Simelane, apparently directly afterwards. Why would they then show him Simelane, particularly if Simelane's face was swollen and she looked bad, as Veyi suggested? We say Chairperson in 233(i), this is indeed strange behaviour under any circumstances and even stranger behaviour on the evidence that Veyi seeks to convince this Committee that Coetzee and Pretorius thereafter went a killed Simelane. Selamolela, who Veyi explicitly places on the scene, stated that he would have remembered the incident had it taken place and that he cannot remember it. He said further that Veyi is mistaken and that he might be confusing him with Sefuti, and we will come back to that Chairperson. We will deal with it more fully. I'm just mentioning the points of criticism of Veyi at this moment.

Paragraph 234, Veyi first stated in his original amnesty application that he was posted to go to the farm at Northam a day or two after Simelane's arrest, and we give you the reference, Exhibit S. This evidence he changed when, after he had been to see his lawyer and a footnote was inserted in a further statement made by him and that footnote stated that she was first kept at Norwood Police Headquarters in Johannesburg for approximately a week and this was also Mr Veyi's evidence before the Committee.

Now Chairperson, the immediate point that arose was the fact that we know that Selamolela said in his application that she was kept for a week before taken to Northam and because of that Veyi was cross-examined about that and what I wanted to establish was whether he had heard this after he completed his application form, from Mr Selamolela and we say to him:

"MR VISSER: Well, I want to suggest to you - well, did you speak to Mr Selamolela about the time that this lady was kept at Norwood?

MR VEYI: What I did, when I was with Mr Lamey, he told me that Selamolela was also present. After taking my statement, he would take Mr Selamolela's statement. Selamolela then came and I greeted him and we haven't been seeing each other for more than five years. We didn't discuss about Simelane's case.

MR VISSER: Did you listen while Mr Selamolela was telling Mr Lamey what he remembered about the incident?

MR VEYI: I was present, I was there."

Now Selamolela denied that Mr Veyi was present when he spoke to his lawyer and we submit, Chairperson, that Veyi must have made the change in his evidence, because he heard Selamolela say that Simelane was kept at Norwood for a week and we'll come to Mr Selamolela in a moment.

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MR VISSER: May I continue? Thank you Chairperson. I'm just coming to the credibility and reliability of Selamolela's evidence and we will come back to this point and hear what he says about that, and I will tell you now immediately that our submission is that he saw Ms Simelane over the weekend at the flats and the next time he saw her was at Norwood and he really doesn't know when she was taken there, but I'll come to that.

We say Selamolela was an exceptionally unreliable witness, Chairperson and we say that for good reason which we will advance to you in a moment. We also say that his Psychiatrists obviously had good reason to find that his memory is impaired and that was based on the exhibits which he handed in to you. He was also a witness who refused to make concessions which he ought to have made Chairperson, and in other cases, concessions which he couldn't avoid, Chairperson, had to be drawn out of him in cross-examination, there are many examples of that. When it came to apportioning guilt, both Veyi and Selamolela were quick to cast it on the white officers when prejudicial evidence was put to them in regard to the black members and particularly to each other, they became reticent to make concessions. A good example is when Selamolela was asked in cross-examination whether he saw Veyi slap and kick Simelane. His answers were calculated, we say, to exculpate Veyi, while Veyi himself admitted to kicking her. When Selamolela was asked whether Veyi was present at any stage where he listened to Selamolela giving instructions about the facts to their attorney, he denied it. Later he conceded his presence for three minutes, whereas Veyi categorically stated that he was present and heard Selamolela relate the facts. And I've already given you that, but I now refer back, Chairperson and I want to give you Selamolela's reference which is at the bottom of page 69, in the record it's page 2118 and 2163.

This is the same point we made with Veyi, it's now repeated here, Judge de Jager, but what we add now is Selamolela's evidence, that's the last reference, Selamolela, record page 2118.

JUDGE DE JAGER: You're not giving another reference, you're just referring back to the previous evidence?

MR VISSER: No, previously we only referred to Veyi, I'm now giving you the reference to where Selamolela gave his evidence.

Chairperson we say that Selamolela's evidence and his refusal to admit that he knew or realised beforehand that the courier would be arrested, just makes no sense and can't be accepted on the probabilities. His refusal to admit that Simelane was arrested to be interrogated and this he eventually conceded when he realised the futility of persisting with his denials, Chairperson, thirdly, his refusal to admit that he did not realise at the time that the arrest was in fact an abduction, that cannot possibly be true, Chairperson. That his refusal to admit that attempts were made to turn Simelane into a police informer which only in the end he conceded Chairperson, but throughout his evidence he was very loathe to concede that. The fact that he refused to admit that the police cars were parked at Norwood where they could not be observed by the public and Chairperson, there's some eight pages of evidence given by him where Adv Gcabashe asked him certain questions about this and we're not going to read it, but we record the reference for you in (5) of page 239. That Simelane was - his refusal to admit that Simelane was assaulted during the period of 19H00 to 24H00 on the day of her arrest, or on the second occasion when he went there. He says that he was there, he never saw anybody assault her, where everybody else says that she was assaulted and his evidence cannot stand in the face of everybody else's evidence, we submit, Chairperson. We say that his refusal to admit that he ever - that should read "that he ever" assaulted Simelane at Norwood, is a lie because everybody says that he did, including Veyi.

We say Veyi testified that all the black members assaulted her at Norwood while he was present and it is common cause that he and Selamolela were present together at least on one occasion, that's on both of their - Veyi says that he was there twice, Selamolela says once, but at least on one occasion and we say that Simelane could have been removed to the farm within less than a week, his refusal to admit that, in circumstances where he last saw her on the Monday and found her later on the farm and he couldn't tell you when he went to the farm the first time, so he doesn't know when she was taken there. His refusal to admit that the black members, when the white members were absent, interrogated Simelane. You will recall he steadfastly denied that, or that Coetzee gave instructions to the black members to speak nicely to Simelane. And incidentally Chairperson, after having denied it on X number of occasions when he was asked some questions by Judge de Jager about something a little different, he tendered that evidence on his own at page 2147, which references I've given you at the top of page 71.

The list goes on. His refusal to admit that he did not suspect that Simelane was a member of MK, he doesn't know why he said that. His own evidence is to the contrary Chairperson, when his mind wasn't specifically directed to this issue, that he anticipated that Simelane would be released or locked up, he wouldn't concede that either, that Simelane in fact gave her co-operation. We say, Chairperson, it's quite clear from his evidence in cross-examination that he wasn't prepared to concede that at all, or that Simelane made a written statement, although in fairness to Mr Selamolela, may I add that he was then asked by me whether his evidence is that he can deny it, so it was put in the negative to him, at which stage he said he conceded that he could not deny it, but he certainly wouldn't concede it from his own knowledge and that Mpo and again I ask you to strike out Mpo, that Justice Ngedi was arrested, partly as a result of what Simelane had told Coetzee. He stuck to his guns, that that had to do with SWT66, that the false flag operations were carried out because of information received from Simelane in order to protect her and enhance the credibility of other informers and agents, he refused to admit Chairperson, while in fact he wasn't even one of the members of that so-called unit of MK, Langa and Mkhonza. That toiletries were provided for Simelane on the farm, that was the evidence of Coetzee and Mong and Pretorius, he denied that. That Simelane would have been taken back to Swaziland, obviously he denied that. That there were no safe houses, we've dealt with that and we give you the reference.

Chairperson, we say in paragraph 240, the unreliability of Selamolela was underscored by the evidence that Simelane was left in the boot of the car until 19H00, 7 o'clock on the day of her arrest and saying that this happened while Radebe and himself were guarding her. He's the only person that says this. We know that she was arrested during the course of the morning. He's the only person that says this. The evidence of Coetzee and Pretorius that she was placed on the rear seat of the car between them, where Coetzee interrogated and assaulted her, this he denied, but that was never put in cross-examination that it would be denied and one doesn't understand why he denies it. Selamolela's evidence about where Coetzee parked his car, Chairperson, and I deal with that in paragraph 242, is patently dishonest. He first says the car was parked at the back, then he said there were people using the entrance of the apartment that could see and there were children playing who could see the car. Then in cross-examination he said no, there weren't any children but the car was near a washing bay. When he was then asked: "But were people washing the cars at 7 o'clock at night when you say she was taken out", he had to concede that there were not and on a question by Judge de Jager, he then said that the cars were parked where people could not see them, only to change that evidence again to say that there were cars parked, that where the cars were parked, they could be seen by people entering and leaving the building. Very unsatisfactory Chairperson and it all stems from his original denial of the simple fact that of course they would have parked the cars out of sight, but a fact which he wasn't prepared to concede. We say that must reflect very seriously on Selamolela's credibility.

Now about the assaults, Chairperson, we deal with that also in paragraph 242(v) and following. In his application he says he never assaulted her, he only held her. In his evidence he initially stated that he never assaulted Simelane but that he held her and then he adds that he placed a bag over her head. He later explained that he choked her and suffocated her with this bag, so that she lost her breath. His explanation that he did not know that that amounted to an assault, Chairperson, we say coming from a Security Policeman of some seven years standing, is disingenuous. In any even it was nowhere previously stated by him that he put the bag over Simelane's head and suffocated her, nor was it put in cross-examination by Mr Lamey and let me read to you what was put on his behalf. The record, page 698:

"MR LAMEY: So if Mr Selamolela says during the times when he was at Northam he was used as an interpreter and he would hold her, that that was his role during the assault, are you in disagreement with that? What is your comment?"

and not strangely Mr Veyi says:

"I would agree with you."

It's obvious that this is what he told his attorney, Chairperson, and incidentally Veyi's reply is just another example of how he and Selamolela were prepared to lie to protect each other, we say.

Selamolela is the only - because later Selamolela himself says that he did more. Selamolela is the only witness who speaks about the alleged electric shocks administered to Simelane, we give you the reference. Veyi did not support this allegation and it was denied by Coetzee, Pretorius and Mong and we say that to believe Selamolela would entail rejecting the evidence of four other witnesses, where no good reason exits to do so. Not Selamolela nor Veyi ever made mention before their evidence was presented to this Committee of strangulation, yet they both testified to that and we submit that it's significant with regard to their credibility.

Chairperson, this strangulation thing was almost like a deus ex machina, it just suddenly cropped up in the evidence of Mr Veyi, there's no reference anywhere else to strangulation except in his evidence-in-chief. I refer you to page 510 and 511 and strangely enough, Mr Selamolela who has also never made any mention of any strangulation elsewhere, then of course goes ahead and he confirms that. We say, Chairperson, that you will find it difficult to place reliance on evidence which is so clearly manufactured during the course of the hearing.

We say in paragraph 243, in his application form, bundle 3, page 567 to 8, Selamolela made it clear that Simelane was put in the dam after interrogation bouts. Obviously in order to support the evidence of Veyi who stated that it was part of her torture and interrogation, Selamolela adapted his evidence and even to take it further and said that she was put in the dam because she soiled herself because of electric shocks, etc., etc. We give you the references. First Selamolela testified that he does not know whether Simelane soiled herself during what we're saying are non-existent electric shocks and we give the reference and then he stated that she did soil herself during, so even on his own evidence he contradicts himself.

We then refer you at the bottom of page 73, Chairperson, to the conflicts in the evidence, to other conflicts in the evidence of Veyi and Selamolela. It was put to Selamolela and Veyi and Veyi will say that they visited the farm once a week, four times over the whole period of Simelane's detention. Now that was Veyi's evidence, but Chairperson, without going into detail, that was certainly not Selamolela's evidence, in fact I'm not even certain what he meant with his evidence, but it was nowhere near what was put in cross-examination on his behalf. Furthermore Veyi stated that Selamolela accompanied him to Potchefstroom and what we've done here is we have, for your convenience, extracted from the record the evidence which you can read, Chairperson. I'm not going to read it, but what is quite clear is this, and this is really the point. If you look at page 74, paragraph 246, the third quotation, second sentence says:

"MR VISSER: You - I want to come to the meeting at the Fochville/Potchefstroom Roads. Was Selamolela present?

MR VEYI: I was with him."

I'm sorry, I should have referred you to the second one as well.

"MR LAMEY: Can I just stop you there? You say we drove (now that's on the way to this intersection), who drove the vehicle?

MR VEYI: Selamolela was the driver."

Then at page 616 Chairperson, after he had said those things, he says:

"If my memory serves me well"

he now qualifies it,

"MR VEYI: I was with Selamolela, if my memory serves me well."

Now you will recall, during my cross-examination when I put to Selamolela: "But Veyi was quite adamant you were there" and he was saying: "No, he's making a mistake, that's perhaps how he remembers it, but I know I wasn't there, he might be confusing me with Sefuti, I wasn't there, I would have remembered it. I never saw Simelane in the boot", then it was suggested that Mr Veyi in his evidence made it clear that he wasn't quite sure of his facts and we said at the time that we will look up the record, Chairperson, now we've done that and we are happy to say that our recollection was correct, he was quite adamant and expressed his evidence without any qualification up to page 616 and then for the first time he made a qualification. So that objection, Chairperson, we say was not well-founded.

Paragraph 247, it was put by Mr Lamey that Veyi and Selamolela would say that they never washed on the farm. We've dealt with that. Veyi repeated that version to the Committee. He says he never washed there and we refer you to C(C)(3) and to the evidence of Selamolela that says, and Coetzee and Pretorius and Mong that said that all of them did wash at the farm.

And then lastly we remind you of the contradictions about putting Simelane into the dam and the fact that none of this was ever put to either Coetzee or Pretorius or Mong.

Chairperson, lastly, we come to the evidence of Mr Gilbert, (incorrectly spelled with two ll's) Thwala. Mr Thwala, we say Chairperson, his evidence, the value of his evidence must be judged by the fact that he is, for obvious reasons, not in a position to give direct evidence as to what happened to Ms Simelane after her arrest. Now that was what his evidence was about. His evidence was to show that the applicants must as a necessary inference, have murdered Ms Simelane. His evidence that he believes that she was killed by the Security Police, is therefore based on inferences, probabilities and speculation. His evidence stands in contrast to the evidence of Coetzee, Pretorius and Mong, that she was replaced in Swaziland. Insofar, we say, as the probabilities in this regard became relevant, and we say although it is not necessarily conclusive, but credibility becomes relevant and we say in regard to Mr Thwala, the following may be relevant to the degree of reliability placed on his evidence.

In his evidence-in-chief, Mr Thwala said that he already knew on the Saturday when Simelane was arrested, that there was a problem. He spoke to Duma Nkosi and he spoke to the family of Simelane on the telephone. He deactivated the Duma Cell and the Vaal One Cell and he had safe houses in Swaziland evacuated and placed under observation to see whether anybody came around to do anything at those safe houses. He says that Simelane could not have been turned, because nobody went to the safe houses and the Duma and Vaal One Cells were not disturbed by the Security Police. It follows by inference that because of this she was not turned and that she was killed.

Now Chairperson, of course, that is an inference and there's no gainsay in that but the question is, is that the probable inference? We have no idea at this stage, what would have motivated the police 17 years ago either to go and break up a cell, or to decide for example to leave the cell under observation to see whether that led them to something else. We cannot at this stage, speculate and none of this was put to the witnesses to respond to, but we can't speculate as to whether or not it was important to the Security Police to go to Swaziland and go look at the safe houses. We don't know. The fact of the matter is, Chairperson, is that there could be explanations for that and I leave you with one submission and that is that certainly the inference that Thwala wishes you to draw, is not the only logical or even probable inference, because of the fact that nothing happened to Duma's unit and nothing happened to the Vaal One Unit, except for one thing, Chairperson. It's common cause that Mr Duma Nkosi was later arrested, we know that, so Mr Thwala is not correct when he says nothing happened to the Duma Cell. Duma himself was arrested.

We say Chairperson in 252 that the probabilities raised in the evidence must be weighed against the following. It must be born in mind, according to Thwala, Simelane was in one of his units and apparently an important one at that, her being the leader of the Vaal One Cell, because that certainly is the impression that his evidence on the record, 2200, gives.

CHAIRPERSON: Is that in fact the position, Mr Visser? I can't recall that being his evidence that Ms Simelane was the leader of the Vaal One Cell. You say it's on 2200?

MR VISSER: Let us just read that, Chairperson. I might be overstating it and if I do I'll withdraw that, but let's just read that, 2200, because I was coming to the fact that we cross-examined him about that and that he denied that he had said so.

CHAIRPERSON: Well, this is his evidence-in-chief, Mr van den Berg is leading him on page 2200.

MR VISSER: Yes. You see Chairperson, the part that I'm referring to, if I may just find it - I'm just trying to find out, it seems to me that's the wrong reference.

MS THABETHE: Is it not page 2186, where he talks about upgrading?

MR VISSER: Yes, my attorney has just referred me to 2186. That's not what I had in mind.

CHAIRPERSON: I'm concerned about being the leader of Vaal One Cell.

MR VISSER: Yes, yes, correct, Chairperson. We know that, and I was going to come to it, that at 2185 which I read to Mr Thwala, he said that she was handling a unit that was operating in the Vaal Triangle and I suggested to him that that leaves the impression that it was her unit, that she was handling it.

CHAIRPERSON: He was saying she was a courier.

MR VISSER: Yes, that was his explanation and I don't find fault with that, but then he said that, I said to him: "But your evidence was that she had been upgraded from a courier" and then there was an argument as to whether she had been upgraded or was going to be upgraded, you will recall, but Chairperson, it takes the matter no further really. I'm quite happy to strike out the word leader. She was obviously an important person and a trusted person and that's the point I'm trying to convey and I apologise for the reference 2200, it doesn't seem to be relevant here, it must be wrong.

In spite of this alleged knowledge of Mr Thwala that Simelane had disappeared, we say that he makes no real effort to trace her. He does not inform his Head Office in Lusaka, or make enquiries with his Head Office, or the ANC structures in Botswana. According to his evidence in cross-examination he does the following. He files a report. He did not even enquire whether this report had reached Lusaka before 1985 at the Kabwe Conference, so he files a report and now he's asked: "Give us pertinently what you did, what enquiries you made" and he said he wanted to have Langa detained to be interrogated by apparently the members of his unit let him go back home. Then secondly he says, he referred to one Buhme, B-u-h-m-e, also referred to on the record, who was thought to be - by the ANC to be Simelane, but it's quite clear that this was not an enquiry which he made, it's an enquiry that was directed to him. So thirdly he says he spoke to someone at the Kabwe Conference in 1985 and made enquiries at an ANC structure, that's the last thing he did in 1991...

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MR VISSER: For those who are becoming concerned Chairperson, I'm almost through. Yes, Chairperson, the point here is that on his evidence, he does four things. He wants to interrogate Langa, but he can't because he's been released. He files a report which he hands to his Commander, which he doesn't know whether that was promoted to Lusaka until 1985. In 1985 he talks to somebody, he makes enquiries, we don't know what the end result of that is. We take it that - I'm sorry, I see it's 1 o'clock. Chairperson, may I just complete this? He makes enquiries. We don't really know what the end result of that is, but we take it that nothing comes from that and then fourthly he talks to the structure investigating the whereabouts of family members of bereaved families, in 1991 and Chairperson, if I may just complete this submission, we say in fact it is strange that he allows the family of Simelane, with whom he has two or three meetings in Swaziland, to go on a wild goose chase, to make enquiries themselves. A person named Oupa, who is approached by the family and who resides in Botswana, he goes to Lusaka to make enquiries and one just asks oneself this question, why was Mr Thwala so unconcerned? He was her Commander, according to his evidence, why didn't he do all these things? In point of fact we say he made no enquiries at all. Why does he not simply tell the family that he believed that Simelane was in the hands of the Security Police Chairperson and that they should make enquiries in the RSA, which incidentally they did out of their own accord through attorney de Klerk. His evidence that he considered Simelane to be in the hands of the Security Branch as only one of the possibilities, Chairperson, was less than frank.

CHAIRPERSON: Didn't he say that he spoke with the family in Swaziland on the Saturday?

MR VISSER: Yes, he spoke to them on three occasions. Not on one of those occasions Chairperson, according to his own evidence, does he tell them that he will make enquiries. In fact he doesn't make enquiries with Lusaka, make enquiries with Botswana, he never tells them: "But look, there's no point in you making enquiries because she's probably in the hands of the Security Police".

CHAIRPERSON: But that's my question Mr Visser. Isn't that what he said to us, that on the first occasion he met with the father, I think it was in Swaziland, he told the father everything including the fact that he had sent her to the Republic and if I understand his evidence correctly, he raised the possibility that she was possibly in the hands of the police in South Africa, with the father?

MR VISSER: You are absolutely right, Mr Chairman, and I have no argument with that, but he meets them on three occasions, not in that week, over a period of time, that's the point, and when I cross-examined or tried to cross-examine Mr Thwala in that regard, because this is the relevance of that issue, is "Why didn't you tell them" - forget about Botswana, because that came only much later, much later, "... she's in the hands of the Security Branch"?. His answer to that was but that in his mind, was only one of the possibilities and then I asked him: "What were the possibilities in your mind?" He said the one was that she was in the hands of the Security Branch and the second one was that she might be on her way back to Swaziland, and the third one is that she might have gone into hiding. Why we say that that is not a frank answer, and that's really the point I'm making, is that the other two possibilities would have disappeared with the passage of time, at some point or other, call it a week, call it two weeks, or a month if you wish, but within a month, surely, call it three months, Thwala being in the position where he was as a Commander of the Urban Machinery of the MK in Swaziland, would have known for a fact that she had been arrested, Chairperson. He would have suspected that from day one, but grant him the benefit of the doubt that he didn't, which we don't understand, but grant him that benefit, he would have convinced himself within three months at the outside that she was in the hands of the Security Police. And on that point we make this submission, Chairperson. Why doesn't he make any enquiries? And we ask you to ask yourself that question. With what knowledge does his lack of enthusiasm fit in? We suggest that one of the possible answers is that he knew that enquiries wouldn't bring any result, because he knew that she was dead, she had died at the hands of MK people when she came back to Swaziland. While we're talking about probabilities and we're speculating Chairperson, that is as sound a speculation as the ones that Mr Thwala has raised here with you and that's the point that we are making.

Chairperson, lastly, we just mentioned it in passing, the report in Exhibit T, page 22, that it appeared apparently from the information of the family that only ten years later Mr Thwala informed them that he had sent Simelane to the RSA, raises an eyebrow. It's not that important, it doesn't take the matter any further, but Chairperson, it's worth mentioning. He denied in cross-examination, the accuracy of that report, Chairperson. We can't take that any further, but we submit that the above scenario about his lack of enthusiasm, his lack of enquiries, Chairperson, can well be associated with the acts of a person who knew that Simelane was no longer in the hands of the Security Police and that something had happened to her, which had made it impossible for her to be found. I'm told it's not 22 it's 23. Chairperson, that's another - 23 paragraph 7.

Chairperson, I'm sorry to have kept you. I see it's nine minutes past one. Would it be convenient for you to take the luncheon adjournment now?

JUDGE DE JAGER: How long will you still be Mr Visser?

MR VISSER: Chairperson, I think you'll be able to judge by the speed with which I've been going, I've only got some, my arithmetic's not that good, some ...(intervention)

JUDGE DE JAGER: In the following pages you sort of mention, well it's submissions, it's - you're not referring to evidence as such, or records, I don't know whether you want to add something to it.

MR VISSER: Yes, Chairperson, perhaps if we come back, with what Judge de Jager has put to me in mind, I may well be able to go quickly about that. I'll go through this, but there are some submissions that I must still make to you, yes, but I won't be long, Chairperson, another ten minutes probably, to a quarter of an hour.

CHAIRPERSON: Do you think you're in a position to do that now, Mr Visser?

MR VISSER: Yes, I can certainly continue now and finish.

CHAIRPERSON: Yes.

MR VISSER: Chairperson, in paragraph 253 at page 77 we deal with Mr Thwala's evidence as to the counter-measures which he took. Now we set that out, we've given you references. We submit to you that it's strange that he thinks, or - first of all he thinks that Simelane being in the hands of the Security Police is only a possibility, but he takes counter-measures. Then the obvious ones he doesn't take. He does not stop arms importations at that stage, just to see what is happening, what might happen, but in favour of Mr Thwala I must immediately concede that on his evidence, she didn't know about arms, so there may be an explanation for that, but that goes only so far, because now arms are being confiscated by the police, very shortly after the arrest of Simelane. Mr Thwala denied that, but that was the evidence given by Coetzee and Pretorius and it wasn't denied in cross-examination.

Some 18 people are arrested within the next six months, five/six months and I asked Mr Thwala:

"Now Mr Thwala, didn't you consider there to be a leak?"

"Yes."

"Didn't you consider that that leak could be Simelane?"

"No."

Why not, Chairperson? Why not?

ADV GCABASHE: I thought his response was it was because of SWT66 that all of these people were arrested and she had nothing to do, that was ...(indistinct) had nothing to do with Nokuthula.

MR VISSER: That's the point I'm making. Why couldn't it have anything to do with Nokuthula?

ADV GCABASHE: Oh, but I thought you had conceded earlier that there isn't much they got out of Nokuthula, except for that statement that she wrote, isn't that what one of your submissions was?

MR VISSER: No, Chairperson, that's a concession I never made. We are saying that partly as a result of the interrogation of Ms Simelane, these people were arrested. I don't understand why that should be a surprise, that's been the evidence all along. Certain targets were identified which were blown up and certainly there's nothing that I can recall that I said that made any concession in regard to that. In any event, Chairperson, may I continue?

We say in paragraph (b) that that was the evidence that these people were arrested and arms shipments came into the country and were confiscated and then there was a string of people who were arrested because of that and it was in fact the evidence of Mr Thwala that it was because of SWT66 that all of these people were arrested and he was supported by Mr Mkhonza who said the same thing, but that wasn't the evidence of the persons for whom we appear. We say that one thing stands clear and that is that Mr Thwala, who at that stage may or may not have thought that it was because of SWT66, cannot be heard to say that he never considered that it might be a leak that came because of the disappearance of Simelane, Chairperson. And Adv Gcabashe's question is dealt with in D at page 78.

Now Chairperson we deal with the issue of his speculation about the elimination or the murder of Ms Simelane. We say first of all it is significant that he raised it in his own evidence-in-chief, Chairperson. It's on that basis that we deal with this issue. We refer again to the question of his apparent unconcern to make serious enquiries, his whole explanation of the assumption that the ANC did not kill Ms Simelane is based on two things. Well first of all, it's based on the assumption that she in fact returned to Swaziland as my witnesses say, but he says that it's based on - he bases his assumption on the fact that if she had come back and she had been suspected of having turned, there would have been processes and Chairperson, we dealt with the processes. That would not necessarily have happened, we all know that. And he informed the units under him of the fact that she had disappeared. Now if he didn't draw the inference that she was in the hands of the Security Police, I submit to you that 90% of the unit members under him would have drawn that inference.

Then Chairperson, while I'm on that point, in his evidence-in-chief he made it quite clear and the reference is here somewhere, that he told the unit under him in Swaziland and in fact that the machinery in Swaziland knew about her disappearance, while in his cross-examination here he would only concede that he told Duma's Unit and Vaal One to disband and not even telling them that she had disappeared. Well it wouldn't have been necessary to tell Duma that because Duma knew that.

We say, Chairperson, his explanation that she would have been subjected to processes depending on whether she would have made a clean breast of her having been turned or not, Chairperson, is just not acceptable.

It is interesting to note in passing that Thwala apparently takes it for granted that a person who was arrested by the Security Police might be turned by them, because that's his point of departure on this whole speculation. His evidence-in-chief that it would have been a process that would have been followed, we say, Chairperson, is disingenuous. We know of many ANC people, members and supporters, who have died at the hands of the ANC Department of Safety and Security, but we also know of many more that were murdered by members or the supporters of the ANC without any processes being followed, on a mere suspicion of collaboration with the Security Branch. If this fact is borne in mind, the exculpatory explanation by Thwala presents no explanation at all, because he simply doesn't cover that base. And then, Chairperson, which I don't intend to read to you, the portions of the Motsoanyane Commission which we put to Mr Thwala, or attempted to put to him, we have extracted and placed that on record for you at page 79 and you can read that for yourself, Chairperson. We say that that does not support a point of departure that where there were processes, everything would have been committed above board. We say far from it, as was found by the Motsoanyane Commission. And then, what would have happened to people who were not put through the processes? One can imagine what would have happened with them. There would be no record at all.

It is submitted Chairperson that the reality of Simelane's situation was that once it was suspected that she was arrested by the Security Branch and once she was held for a period of approximately a month, the ANC, through its members and supporters, seriously suspected her of having turned.

Mr Thwala's evidence in cross-examination, this is where I deal with it in paragraph 256, he said he only told Duma's unit and Vaal One Unit, but we looked it up Chairperson and at the record in his evidence on 2190, his evidence-in-chief he says:

"Then I alerted our unit in Swaziland."

Nothing can be plainer than that and one wonders why he denies it now. And over the page at 2191, second sentence:

"Then the machinery, it became clear to us that something has happened to Nokuthula, so there are certain things we needed to have done."

All of that is on the assumption that she is in the hands of the Security Police, so he took the steps which he told you about.

We say, Chairperson, in paragraph 25(a), Mr Thwala was an exceptionally hostile witness, he was also evasive and refused to answer questions and sometimes of the simplest questions. When he wasn't able to judge where the questions were leading, instead of giving truthful replies, he refused to answer unless the relevance of the question was explained to him. We say Chairperson, that's the mark of a person who's not telling you the truth.

The unreliability of his evidence is demonstrated in his concession to Mr Lamey that Mkhonza could have thought that it was Simelane who was to bring material to him and not vice versa and his concession about hard and soft material, where he was quite adamant about it just a minute ago, we say Chairperson is very strange. When he was questioned about the evidence of Coetzee and Pretorius, he denied everything put to him, seemingly on principle. It is submitted and we set out, Chairperson, the basis of our submission that his evidence is not reliable and trustworthy and we mention the points to you, which we're not going to discuss in detail.

Chairperson, as far as - if we can go to paragraph 82, general submissions are made in regard to the issues covered so far and then we come to the credibility and reliability of Coetzee, Mong and Pretorius. We say they were not shaken Chairperson, in cross-examination, there was nowhere where their evidence manifested clear dishonesty or anything of that nature, they certainly attempted to make a full disclosure of all relevant facts and their versions do not contain any inherent improbabilities and we ask you to accept their evidence Chairman as correct and truthful as they have given it. As far as Ross and Williams are concerned Chairperson, there is no dispute of their evidence and their evidence may be accepted as it stands. We therefore submit Chairperson that the applications which are before you by these applicants, comply with the requirements of the Act and all the other issues raised by the Act and we would therefore ask you to consider granting them amnesty.

My attorney has just referred me to paragraph 265, 6 and 7. Chairperson yes, perhaps one should say this. I'm referring to page 82 from the top, paragraph 262, the issue that has taken up most of the time during this hearing is the question "What happened to Ms Simelane?" Well the answer to that is a brief one, we don't know. Now we can start speculating from there. Either the applicants are lying to you and that they in fact killed her, or Thwala is lying to you, that he knows that members of his unit in Swaziland killed her, or none of them know. It might even be that Mr Mothiba, Sgt Mothiba and Mr Langa who took Ms Simelane to Swaziland, might have killed her. One couldn't imagine why they would have wanted to do that, but if you want to speculate, all of these are possibilities. The point we are making to you, with respect, Mr Chairperson and Members, is that its not for us to speculate and to rely on conjecture. Nobody can really give positive evidence about this. The only real positive evidence is a reference in the ANC representations to a Sibongile that was killed in an accident in Angola. Now, Mr Thwala, when I put that to him, didn't come out and say to you: "Oh yes, yes, I know about that, but that wasn't Simelane, that was somebody else." He didn't say that. So it seems - I'm sorry, is there a problem?

ADV GCABASHE: Yes. What Mr Thwala said was that there is a record somewhere in their archives that would tell you exactly who that person is, but by implication he was saying that it was not, in fact he probably went on to say that it was not this particular Sibongile, it was a totally different person.

MR VISSER: With great respect, he said that - the answer he gave was this, he said that person's family would have been informed, thereby inferring from that as a point of departure, it wasn't Simelane. My submission still stands, Chairperson. He never told you, as far as he's concerned it wasn't Simelane. That he didn't say. Secondly, it was quite clear in our attempt at cross-examination of Mr Thwala that many people don't know where their loved ones are that have disappeared while they were with the ANC in other countries. They made it quite clear, so that can't possibly be the only inference that it wasn't Simelane. The fact is there's a reference to Sibongile and that was her MK name and I'm saying to you, Chairperson, with respect, that's the only positive evidence you've got about what happened to her.

ADV GCABASHE: To who?

MR VISSER: To Simelane.

ADV GCABASHE: No, there's a Sibongile whom you cannot connect to Simelane. This is the whole point. This is the only point - you cannot do so, so you don't have any real evidence, if you were able to come back Mr Visser and say: "Here we have the record and we can categorically say to you, here is evidence of that Sibongile being Nokuthula Simelane", yes, I'd understand your real evidence, but on the basis of what you're submitting, you don't have that evidence.

MR VISSER: Chairperson, yes. First of all, it's not for me to present that evidence, I don't have access to that kind of records anyway, but what I'm saying is that this is the only indication which you have which comes closest to positive evidence, but if you don't agree with my submission, then so be it Chairperson. But the rest is pure speculation, in my respectful submission and we say in paragraph 264, it's not for the Committee to speculate, Chairperson. There may even be strong suspicions or doubts, but that's not sufficient. The applicants Coetzee and Pretorius have applied for amnesty in other incidents as well, some of them include the murder of members and supporters of the ANC, where they came and said: "We killed these people" and some of those served before you in Johannesburg on the last occasion. Now one must ask oneself this question. If they had in fact killed Simelane, why - how is it - how do you explain that they would in this case not come out and admit it? In fact, Chairperson, in many - and one does not want to say by that that, or cast any idea that they should have done this, but if they had killed Simelane, this would have been an easier application than what I'm being faced with here now, because I'm now faced with speculation and we don't know what the answers are.

With great respect, Chairperson, if they had killed her, I'm submitting to you in the light of the other applications for amnesty in which they are involved, they would probably have admitted it to you, in fact they would have admitted it to you. And that is all I wanted to add, thank you Chairperson.

CHAIRPERSON: Thank you Mr Visser. We'll now take the luncheon adjournment and reconvene at 2 o'clock.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes, Mr Lamey, have you got any submissions?

MR VISSER: Chairperson, I'm wondering whether you would allow me just to interrupt you for a brief moment. There is one point that did go a begging and I should have referred you to it. May I just direct your attention to page 82 of our written argument, paragraph 267?

CHAIRPERSON: 267?

MR VISSER: Yes. Chairperson, the reason why I mention that is there's a reference there that I didn't give and I should give you. Chairperson the submission that we make there is that if you granted amnesty and evidence should come to light later, which indicates that the applicants did in fact murder Simelane, they can obviously be charged and they could also be civilly sued for damages Chairperson, because they would not have obtained amnesty as Judge de Jager pointed out right at the outset for murder and Chairperson, there's authority for this proposition in the Amnesty Decision in the Mthimkhulu matter at page 6 of that - I see my attorney is offering you a copy of it. If you want one.

CHAIRPERSON: We have it, you can just refer to it Mr Visser.

MR VISSER: Yes, I just wanted to refer you to page 6 Chairperson, where this situation is set out and to draw your attention specifically to the fact that in that case it was found that there was at least prima facie evidence that there was an attempt to murder Siphiwe Mthimkhulu was he was in the custody of the Security Branch during October 1981 or shortly thereafter. The Judgment says

"There may even be a suspicion that one or more of the applicants might have had a hand therein. It is equally possible that they might not have been involved at all, (etc., etc.)"

And then it says :

"All the applicants deny that they were involved in an attempt to murder the deceased during October 1981, and there is no evidence before us to contradict their denial. It could cause grave injustice to regard suspicion as proof against one or all of them and if against one, who would that one be? ..."

Chairperson, I just want to rectify my neglect to refer there to the Mthimkhulu case.

CHAIRPERSON: Thank you Mr Visser, we've noted that. Mr Lamey, have you got any submissions?

MR LAMEY: Yes, thank you Chairperson.

MR LAMEY IN ARGUMENT: Chairperson, I believe you are in possession of written Heads of Argument. I must say I haven't checked that so closely, but I assume that it's correct.

Chairperson, I did not intend to deal with all legal aspects concerning the interpretation of the Act in such an elaborate manner in which my learned friend did. My submission is that and I think by now the Amnesty Committee, with all due respect, is in a position, understands the interpretation of the Act, the purpose of the Act and my submission is that perhaps the most difficult part in the past of applying the criteria was around the political objective and I submit in this case, that is not much the issue in this matter as it is common cause that the victim was intimately involved with the activities of Umkhonto weSizwe, the military wing of the ANC and that the applicants that I represent were all members of the Security Forces who acted as provided for in Section 20(2)(b):

"... members of the Security Forces and acted against publicly known organisation or liberation movement and/or against members or supporters of such organisation."

Chairperson, it is also just my submission that the three applicants that I represent were lower ranking officials and acted in all they did under the instructions of their superiors, specifically their Commanders, specifically the Commander which was applicant Coetzee in this instance.

Chairperson, perhaps the main issue in this matter is the element or the requirement of full disclosure and I will deal with that later. Firstly I want to deal with the applicant Mkhonza and in this regard, my submission is that to be successful in his application, not so much turns about the requirement of full disclosure in his instance, but as the question was raised during the evidence as to whether he has really committed an offence or delict, being that he was under the impression as he stated in his written application, also again repeated that in his evidence and the impression that the rest would be a lawful arrest.

Chairperson, in paragraph 2.4 on page 4, I have made my submissions in this regard. It is submitted that in determining whether an act or an omission constitutes an offence or delict, the Committee should not place itself in the position as a final Arbitrator, such as a court of criminal law. It is submitted that the proper approach would be rather to place itself in the position of a prosecuting authority, which would be able to formulate a charge and I say that a prosecuting authority would be able to charge a person for an offence where an offence was committed.

Now Chairperson, in the broader spectrum of all the evidence here, it is common cause that the arrest here (arrest in italics) and unlawful arrest and then secondly whether a person was connected with that offence; now Mr Mkhonza was in this position, that he was told that the person be arrested by Coetzee and he was used as an instrument in that, not knowing the full facts and the intentions in the mind of Coetzee. Now the further element is whether a prosecuting authority would connect a person with the offence and I submit that both these elements would be present if you judge the position of Mkhonza. In fact there was an offence committed.

Secondly that he is connected with that offence. In other words he's a link in the whole chain. Now it is only during a whole full criminal trial, Chairperson that one really establishes via evidence and the evidence of an accused person, whether he really had the necessary mens rea to commit the offence, but the point that I wish to make, Chairperson is that in my submission the whole purpose of granting amnesty is to prevent prosecution of - unnecessary prosecution of persons, in other words a person - the intention is, in my submission is that a person is placed in the position if granted amnesty, that when he's prosecuted, he can immediately raise the defence that: "I've been granted amnesty", so that a court of law doesn't have to go through all the process and procedure to establish the guilt of that person.

So in short, the submission is that in judging this aspect, the Committee should not usurp the function of a court of law, which a court of law will do after hearing all the evidence, in judging whether the person had the necessary mens rea, but rather to grant amnesty to a person where he could reasonbly be linked to an offence and thus my submission that this is indeed the case of the applicant, Mkhonza.

The other aspect, Chairperson, is that as far as Commissions are concerned and also the delict aspect on which a person would be entitled to amnesty, the test, as you all know, to determine negligence, is an objective one that I have stated in paragraph 2.1, is an objective test, one of the ...(indistinct). Now in respect of what Mkhonza has testified that he didn't know whether the - and he assumed that the arrest would be lawful, if one applies the objective test, one could make out many arguments perhaps as that he, in thinking that it would be a lawful arrest, he did not act in a reasonable manner, because him being a policeman at that stage, probably in being a Security Policeman, he must have known also of instances where a person was unlawfully arrested, could be blamed for making an unreasonable assumption here that the person would be lawfully arrested.

It is my submission that despite the fact that he testified that he did not know whether she would be unlawfully arrested, or that he assumed that the arrest would be lawful, does not, should not in my respectful submission, giving the whole gist and purpose of the Act, deprive him of amnesty in this instance. I want to add further that I think it would be some absurd, with all due respect, result if everyone else receives amnesty afterwards and he's the only one not receiving amnesty because he was and despite the fact that he was an instrument and a link in the chain receiving instructions from his superiors, which he had to obey.

Chairperson, now as far as the applicants Veyi and Selamolela are concerned, I will deal here paragraph by paragraph with what I have stated in the written Heads. The submission is that it's common cause that the victim was last in the hands and under the control of applicant Coetzee and other members. Applicant Veyi and Selamolela could not provide any direct evidence as to what ultimately happened with the victim. The applicants Veyi and Selamolela were not at difference with the other applicants concerning the fact that the victim was kidnapped. There was also not much difference as to the methods of the assault, except for the use of the shocking device as testified by Selamolela and submerging the victim in the dam. The main difference between the version of the above applicants and that of the co-applicants, is whether the assaults and torture continued up to the last time that they were directly involved with the victim. That is the fourth week, or approximately the fourth week of her detention, coupled with these issues, the conflict as to what the physical condition was of the victim in the fourth week of the detention at the farm in Northam.

The applicant Coetzee, supported by the other applicants, maintained that the assault and torture upon the victim occurred during the first week. If I say here other applicants, it obviously means those applicants that were also at the farm in Northam and not all of them were there, I concede, occurred during the first week of her detention at the farm at Northam and not only her face was swollen during the - and that only her face was swollen during the first week of her interrogation. Coupled with this is a version that the victim started to co-operate, according to applicants Coetzee, Pretorius as opposed to the versions of applicants Veyi and Selamolela that she was uncooperative.

Chairperson, in this regard, I just want to pause here by referring to an aspect which appears from the Heads of Argument of my learned friend, Mr Visser, on paragraph 50, page 9195. One of the aspects that was referred to and which is relied upon to strengthen the evidence that Ms Simelane had given her co-operation, is discussed in paragraph 195 where it is - the submission is made based on evidence that was given, that she had given information concerning targets which were to be attacked and those targets were in fact attacked on 10 September 1983, the Johannesburg/Durban railway line and power stations in Fairlands and Bryanston.

Now, Chairperson, if one has a look at the initial application of Coetzee which is in the first bundle dealing with these incidents, the explosion incidents, then right at the start where on page 245 its described as Second Contingency, then it's stated Dates Unknown 1982, 1983, Sandton and Randburg. Now what is clear here is that later there's a definite date referred to by Coetzee whereas initially it was stated as 1982/1983. What is also peculiar about this aspect, Chairperson, is that nowhere in the initial written application is there reference that the reasoning or the reason for the blowing up of these power stations was as a result of information that was received from Simelane. Now Chairperson, it is my submission that this must be weighed also in the probabilities of this matter as to whether she was co-operative and that also has a direct bearing as to the duration of her assaults or torture while being detained.

Now it's my submission that there's nothing improbable of the versions of Veyi and Selamolela, namely that the victim was assaulted and tortured up to the fourth week of her detention and that her physical condition was in a bad state when they last saw her on the farm, in the sense that she could hardly walk.

Chairperson, if I could just pause here and just mention another aspect which is, in my submission, a strange aspect and that is in the evidence of Veyi, he pointed that out where he said that one of the reasons why, well he pointed out that if Ms Simelane was recruited as testified, she would have been given a recruitment number. Now Coetzee testified that she was given, in fact a number. She was registered as an informer, but he couldn't recall the number. What is strange about this aspect, Chairperson is that there are elaborate references of informer numbers in the application in the bundle by Coetzee and Pretorius, like SWT66, RS, all of them are referred to, but strangely he cannot recall or mention the name of the recruitment number of Ms Simelane.

Now Chairperson, it is also in my respectful submission strange that if she was in fact recruited and that she divulged information to the extent of giving information of power stations to be blown up, that she would have been kept in leg irons during her detention and at a secluded place on a farm for a period up to approximately four to five weeks, because the duration of her detention was never really disputed.

One, on a probability would, in my respectful submission assume that if she was recruited and she was co-operative and she gave all this information which must have been during, after the first week, because the power stations were blown up on the 10th of September 1983 and as my learned friend indicated, the detention must have then started round about the 3rd of September, then Chairperson, my submission is it is highly improbable that if she co-operates to that extent, that there was any reason to keep her for such a long period on the farm.

Chairperson it's my submission that the explanation that the applicants Veyi and Selamolela would not have known that she was recruited necessarily because the reason advanced for that was that Ms Simelane herself said that simple words to the effect, according to Coetzee, that she doesn't want the other black members to know this in order for her own protection. Then strangely we have the situation that Langa and Mothiba are the ones that accompany her to the border, must have known about her recruitment.

We all know that Langa was himself also an undercover agent and Mothiba also a permanent policeman, like Veyi and Selamolela. No reason was given or advanced as to why there was a distinction between the black members, why would Veyi and Selamolela be necessarily excluded from knowing that or that - and Mothiba and Langa only be privy to this?

Now Chairperson, it's my submission that all these improbabilities which I've just pointed out, strengthens this action in the probability of the version of Veyi and Selamolela, in fact that she was tortured and assaulted up to the last time that they saw her on the farm and strengthens the probability of the version as to what her physical condition was like and also strengthens the probability of their version that she did not co-operate.

Now in paragraph 3.6 the submission is also made, is that why would these applicants place themselves on the scene in the fourth week of the detention, describe assaults on her, that is now the victim, in which they also confess to have played a role. If that did not occur, it is highly unlikely that any person would act contra his own interest in describing the offences in which he incriminates himself, if that did not occur.

It's further submitted that an important fact is that at the time when the applicants and then I think here's a typing error - made statements to the Attorney-General and made their amnesty applications, Chairperson, there are two words that are not right there, describing assaults and the condition of the victim when they last saw her, they could have had no idea as to what potential other amnesty applicants such as Coetzee, Pretorius and others would say and therefore could not have been in a position to skilfully concoct a version for the reason of some ulterior motive against applicants Coetzee, Pretorius and others.

Chairperson, so it's my submission that is also, and copies of their statements were handed in as exhibits for the Committee which they made to the Attorney-General. It is submitted that no ulterior motive on the part of the applicants, Veyi and Selamolela was established or could be inferred. It is conceded that there were certain differences between the version of Veyi and Selamolela. At this point I just want to pause and say that my learned friend has, in his Heads of Argument, referred to various inconsistencies and differences, Chairperson. I will come back to that later when I also deal with some of the submissions made by my learned friend in his Heads of Argument.

The first difference pertains to the question whether Selamolela accompanied Veyi when Veyi saw the victim last huddled up in the boot of Coetzee's motor vehicle. It is submitted in this regard that the difference between the version rather leads credence to the testimony of the applicants than it leads to a negative inference to be drawn from their evidence. If Selamolela really had a motive to give evidence which has an adverse effect against the evidence of other applicants, one would have expected an attempt on his part to corroborate the version of Veyi in this regard.

It is further submitted that Veyi, in re-examination, also qualified the presence of Selamolela by stating, if he remembers correctly and the reference is there to the record on page 702. In this regard it is submitted that it must also be taken into consideration that Veyi on other instances, according to his own version and also according to the version of Selamolela, travelled in a vehicle with one Sefuti. Considering the time lapse since the incident, the difference in the two versions is in all probability, attributable to a lack of clear memory and a bona fide but mistaken belief that Selamolela accompanied him on this occasion, whereas it could very well have been Mr Sefuti.

The other difference was whether Selamolela actively participated in the assault at Norwood. In this regard it is submitted that the re-examination of Veyi clearly established that he was referring in general to all the members who participated, but was not in a position to state exactly what role each member had played and therefore was also not in a position to state whether Selamolela actively participated in the assault. Yet again it is submitted that Veyi's evidence is a bona fide assumption. Chairperson, I think here is also some typing error, which I apologise for. Yet again it is submitted that Veyi's evidence is a bona fide assumption, but upon closer scrutiny, taking also the time factor involved, it does not create any conflict with the evidence of Selamolela.

Lastly, it could be argued that there's a difference between the allegation of electric shocks that were administered once on the victim, as testified by Selamolela and the fact that no reference was made of this by Veyi in his evidence.

It is submitted that this difference is again rather an indication of credible evidence on the part of both these applicants. The fact that Selamolela witnessed this, does not mean that Veyi was in a position to witness this, bearing in mind that the incident only happened once. If Selamolela had any motive to fabricate this portion of the evidence, we would have expected him to aggravate this aspect by stating that it occurred more than once. If the two applicants had also a motive and a purpose and motive to concoct their version, it would have been very simple for Veyi also to confirm this aspect.

Finally, as far as the applicant Selamolela is concerned, a question could be raised as to whether he was frank when he stated in his written application that he never assaulted the lady himself. In his verbal testimony he explained what he meant by assault, namely actively hitting or kicking the victim. It is submitted that the applicant did not have a good understanding of the legal technical meaning of assault in the sense that his participation in holding the victim while she was assaulted by others, or putting a bag over her head while she was assaulted by others, also constituted an assault on his part as co-perpetrator. Chairperson, this aspect and his meaning about this was also covered with him in his evidence-in-chief. It is my submission that he clearly indicated what he meant in his written application when he said that he, when he stated that he never assaulted him himself and that is that his understanding was he didn't hit or kick the person, but he never shied away from his role in holding her and assisting with the placing of the bag over her head. Chairperson, I may just add here that Coetzee, applicant Coetzee also conceded that this was the role of Selamolela.

It is submitted that all the above applicants have satisfied the requirements for amnesty and it is submitted that as far as the versions of Veyi and Selamolela parts with the versions of their co-applicants Coetzee, Pretorius and others, can neither be - can never be said - I apologise again here, Chairperson, in the total context of all the probabilities in this case and the total context of all the evidence and the context of the likely explanation for the disappearance of the victim, that their versions are probable or unlikely or not credible and their version therefore failed the requirement of full disclosure.

Chairperson, if I may just then refer to certain aspects in the Heads of Argument. Chairperson I just want to point out that I have not analysed all the references which my learned friend has made in support of his contentions and I submit that, and I assume that the Committee will do that during their deliberations and before giving Judgment, I just want to point to certain aspects which I have picked up since receiving the Heads of Argument this morning, which in my submission are not a correct inference.

Chairperson the first aspect that I have picked up is on paragraph 4 on page 54, my learned friend makes the submission, says:

"It is significant that Mr Lamey did not put it to any of the applicants ...(indistinct) cross-examination."

That is the aspect about the dam incident where the victim was put in the dam. In this regard I wish to refer to page 72 of the record, Chairperson, where yourself, Chairperson, referred to this. I just want to read this:

"CHAIRPERSON: Mr Coetzee, I'm not sure what you are reacting to. It was put to you that she was placed into the dam after interrogation at the house because she had soiled herself and had wet herself. Do you know of this?

MR COETZEE: Yes, Chairperson we washed in the dam. That was my answer."

Now Chairperson, then the previous page, page 71, it was put to Mr Coetzee by myself:

"Mr Selamolela says in his statement that on several instances she had to be taken to a dam where the purpose was, or Radebe did this, was to put her into the dam so that she could clean herself. This usually happened after interrogation at the house as he stated in his statement."

And he says:

"Because, during ..."

and this is my instructions,

"during these assaults and interrogations, she soiled herself and wet herself and that is why she had to be taken to the dam to be cleaned."

So Chairperson, my learned friend was under the impression that nothing of this was put to Coetzee. It's my submission that the record will reflect that it was put to Coetzee.

JUDGE DE JAGER: It wasn't put that her head was submerged under the water.

MR LAMEY: Or that Coetzee was present, Chairperson, that's paragraph 3.

JUDGE DE JAGER: We follow you.

MR LAMEY: Yes. Chairperson, yes, that may very well be so, I haven't scrutinised the record in all that detail and I don't want to comment on that, but all I'm saying is, Chairperson, that a big point is made as to the difference here of Veyi and Selamolela whereas Veyi said that putting her into the dam was part of the interrogation and torture. It's my submission that this difference is not all that material in the sense that the incidence of putting her into the dam, did happen during the course of interrogations, so if one applicant has a perspective of this was all part of the interrogation and torture and the other one is able perhaps to distinguish in more finer lines about this aspect, it is my submission that that difference is not really that conflicting.

CHAIRPERSON: Your point is that you have put the incident to the witness, there might have been differences on the detail, but the fact of this incident was put.

MR LAMEY: Yes.

CHAIRPERSON: Alright.

MR LAMEY: I concede there might have been differences as to the perspectives as to the reason for putting her in, but the fact that it happened was in fact put to them and corroborated by both these applicants.

CHAIRPERSON: Yes.

MR LAMEY: Chairperson then the other aspect, paragraph 225, sorry on page 57, paragraph 226, my learned friend states

"Mr Lamey put it to Coetzee that Veyi and Selamolela would give evidence of torture with a shocking device."

Sorry Chairperson, yes that was indeed correct. It was put, the record will reflect that it was put on behalf of both Veyi and Selamolela. Chairperson, my submission here is that the record will reflect that that was put on behalf of Veyi and Selamolela but Chairperson, my submission is that the fact that Veyi did not, he didn't state that in his evidence and my submission is whereas he could very well have done so, the fact that it was put on behalf of both of them in my submission does not at all impact here on the credibility of Veyi in this regard, because as I have stated before, Chairperson, that if Veyi really had the motive and intention to concoct evidence or to fabricate evidence Chairperson, he could easily have also testified in his evidence that that did happen, but he testified that he didn't witness that.

Now Chairperson, on this aspect I wish also to submit that the fact that Veyi testified that he didn't witness that, doesn't mean that it didn't happen. Chairperson, we all know from I think from experience in this amnesty process that people who are involved with the detention of a person are not always at every point in time together when certain things happen and therefore the fact that Selamolela testifies to this, doesn't mean, although Veyi was at the farm at that stage or in the area, would necessarily have witnessed this aspect.

CHAIRPERSON: And more than fifteen years after the event.

MR LAMEY: Yes, that is also an aspect that must be taken into consideration but although I am inclined to think that if an electric shock happened which Veyi saw, he probably would have remembered that and would have testified to that but the fact that he says: "I didn't see that", my submission, the only reasonable conclusion is that this is an honest statement, he didn't see that, but the fact that there's that difference between him and Selamolela, doesn't mean that Selamolela is lying about that.

Now Chairperson, the other aspect is that the suggestion that Veyi supplemented his written application with regard to the duration of the detention in Norwood after having been in the presence of Selamolela during the preparation of Selamolela's statement, now this submission is made in paragraph - reference is made in paragraph 234 of my learned friend's Heads of Argument. Now Chairperson, my learned friend has quoted this aspect.

"What I did when I was with Mr Lamey, he told me that Selamolela was also present. After taking my statement, he would take Mr Selamolela's statement."

Now Chairperson, this statement that Veyi refers to, could never have been the written application of Selamolela, because you would see that the date of the supplemented application of Veyi is May 1999 and that Selamolela's written application Chairperson was in ...(intervention)

JUDGE DE JAGER: Repeat the first date please.

MR LAMEY: May 1999, Chairperson.

JUDGE DE JAGER: Thank you.

MR LAMEY: And then Selamolela's written statement, I just want to get to the page in the bundle, is dated the 27th of May 1997. But Chairperson the point that I want to make, with all respect to my learned friend, he hasn't quoted the full context of the evidence of Veyi in this regard. I want to refer to page 572. My learned friend has referred actually to page 571. Now that aspect wasn't all covered on page 571, on page 572 the portion which my learned friend quoted stopped at page 571, but this aspect went further on page 572.

"Yes and you heard him say that Simelane was kept at Norwood for approximately a week.

MR VEYI: Mr Lamey only wanted to know whether I know the story of Simelane and Selamolela, whether I was present in this case and then I agreed that I was present during the Nokuthula incident, then I don't remember anything else."

"You are avoiding the question. Did you hear Mr Selamolela tell Mr Lamey that this lady was kept at Norwood for approximately a week? It is a simple question."

"No I didn't hear him."

Chairperson, I don't know whether your pages are different.

...(indistinct - talking in background)

MR LAMEY: Chairperson I remember that in the beginning we had this problem that the records had different pages but I think the pages that my learned friend now refers to are in fact - another copy which corresponds with my copy.

MR VISSER: Yes, Chairperson, this is the official transcript that has just been placed before you. The other ones, and which also accounts for my incorrect references in my Heads, I discovered, was at the time when we also worked off the computer print-out which you've got in front of you and those page numbers are way out, but we will make available our copies of the first hearing in Johannesburg, so that you have the official record and that should accord to most of the references which I've given, except one or two somewhere, which I've perhaps missed.

MR LAMEY: Now Chairperson, if I may also just point this out, according to the evidence of Veyi, he went to Norwood approximately two to three days after the initial arrest, so in the context of that evidence, his initial statement before the Attorney-General which he supplemented in his - which was supplemented was with this footnote as it appears on Exhibit S(1), could not have been correct, because he stated in that initial statement

"This lady was taken to a farm at Northam. The day after the arrest I was also posted to go to the farm to guard her"

and in his supplemented statement he says:

"The preceding two sentences appear in my initial statement which I made. After I made the statement I remembered the lady was not taken immediately the day of her arrest to the farm at Northam, she was at first detained at Norwood Police Quarters in Johannesburg for approximately a week."

Now this approximately is also just an estimation, nobody, neither him nor Selamolela stated that it was definitely a week, but the point is Chairperson that according to the evidence of Coetzee, she was arrested on the Saturday and then Monday they spoke to Brig Schoon and then it was decided to move her away. The point is, Chairperson, clearly the broader context of all the other evidence, Veyi, nothing turns really on this point because Veyi realised that his initial statement that she was taken immediately after her arrest to the farm in Northam must have been incorrect, especially regarding his own evidence that he only attended at Norwood some two to three days after her arrest.

Chairperson, then the other aspect which my learned friend states is patently dishonest about Selamolela's evidence, on page 242, is the position where the car was parked at the back and then certain differences in his version of Selamolela. Chairperson, I would appeal to you to read the context of this evidence carefully and it's my submission that one shouldn't, one could with many aspects of evidence put evidence in hindsight under a magnifying glass. The gist of what Selamolela stated here was that the vehicle wasn't parked at the main entrance where it would have been more obvious, it was parked at the back of the building, but he also said that the position where the car at the back was parked, was also a place where residents in the building, like children, have access to. That is the gist of his evidence and when he states that there were children playing, Chairperson, he doesn't mean in fact that there were children playing at the time, it just means that in the total concept of the evidence that there were children also in that building and the children are playing around and they could also come across the car parked at the back and the situation there.

MR LAMEY: Chairperson and then in paragraph 8 my learned friend on page 73 refers to

"Not Selamolela nor Veyi ever made mention before their evidence was presented to the Committee of strangulation yet they both testified that and we submit that that is significant with regard to their credibility."

Now my learned friend hasn't referred to a page in this regard. I have checked the record. Veyi refers to strangling, but not Selamolela. Now Chairperson, in this regard, if that is a difference in their version...(intervention)

JUDGE DE JAGER: Could you kindly perhaps give us a reference where Veyi refers to it?

MR LAMEY: If you would just bear with me.

JUDGE DE JAGER: Mr Lamey they say that the statement is that they did not refer to strangulation before they gave evidence, so that was in their applications, I presume that they ...(no microphone)

MR LAMEY: Yes.

JUDGE DE JAGER: Do you differ here ...(indistinct - no microphone)

MR LAMEY: No, no, no, no, that is correct, Veyi didn't refer in his written application to strangulation, but the point that I want to make here is reference is also made to Selamolela here. Now Selamolela didn't mention this in his written application, neither in his verbal evidence. Veyi made reference to this in his verbal evidence.

MR VISSER: Chairperson, if I may be of assistance, ...(indistinct - no microphone)

MR LAMEY: Chairperson I must - unfortunately when I checked this I didn't now make a note, but I'm just trying, it's an aspect that I did highlight in my record, so I just want to see if I can't quickly find the passage. Yes, on page 510 Chairperson, he states

"MR VEYI: She would be kicked, punched, and then she would be strangled. She would be taken to the dam, put inside the dam and then she would be taken out of the dam."

Page 510 and then also on page 511, there's again a reference to that, where he also refers to the wet sack, but in addition to that also to strangle.

Now Chairperson, in cross-examination this aspect wasn't really on Veyi, if my recollection is correct, really disputed or elaborate cross-examination of this aspect, really to determine as to what he meant by strangulation, Chairperson. We have the evidence that there was a bag placed over the head of Ms Simelane, that was conceded by Coetzee also and that, I think Selamolela also testified that it was placed over her head in such a way that it would suffocate her and then she would be put into the dam to regain her breath, something of that sort.

Chairperson, my submission in this regard, I think in the manner of this act of putting a bag over one's head and closing it around the neck, is something very tantamount to strangling also, or the physical act of doing that and it's my submission that if you conclude that that perhaps did not happen, my submission is here that an adverse finding could not be made against Veyi in this regard, Chairperson.

Chairperson, there are various references to the record to support my learned friend's submissions. I must say I didn't have the opportunity really to scrutinise the record and really to reply meaningfully to the submissions of my learned friend, Mr Visser. Chairperson, all I would submit and I, to appeal to the Committee, is to look at those references, but also to look, in my submission, to the broader context of the evidence and really focus on the main aspects of potential differences and disputes between the parties. Chairperson, it is my submission, my learned friend has made the submission on behalf of his applicants that given the time span here, it's very easy to highlight and put under, you know look at differences in a magnifying glass. My submission, my learned friend is perhaps, with all due respect, more sensitive to differences between the applicants that I represent for the reason of the main dispute as to whether what the condition of the victim was up to the last time, as well as whether she was tortured up to the fourth week.

Chairperson, my submission is one can expect certain differences. My submission in general is that whatever differences there are between the version of Selamolela and Veyi, that there is a reasonable explanation for that difference, one being also the time factor as to well as perhaps bona fide, but mistaken beliefs, as I've pointed out and different recollections which in my submission the fact that there are these differences rather strengthens their credibility than goes against it.

Chairperson, in general, my learned friend has made the submission that as far as the evidence of Selamolela is concerned, that he's a most unreliable witness. Chairperson, then in general my submission is that, just to answer to that submission, is that I think Mr Selamolela was indeed an honest witness, a witness that was tempted to the best of his ability to state the events which he recalls. You have seen him in the witness stand Chairperson and it is my submission that nothing, no negative inference from his demeanour or his way in answering the questions could be drawn from his evidence.

Chairperson, it is also correct that Mr Veyi did concede that the differences between what he stated to the press and his evidence here, one aspect which was pointed out was the question of the tap, where he said they didn't wash themselves and Selamolela said they washed at the tap, Chairperson, that type of difference between a previous statement and what you've stated here Chairperson, it's my submission, is not material in the broader context of the evidence before you. It is my submission that even if we assume that he shied away when making the press statement from his own involvement, the point is, Chairperson, that he didn't shy away from that and his role and his participation in assaults before this Committee and on that is my submission, he should be judged on his performance in the witness stand before this Committee and not on certain differences between his version here and what was stated to a journalist.

Chairperson, those are my submissions, thank you.

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

MR VAN DEN BERG: Thank you Mr Chairperson. I've prepared short Heads of Argument which you have before you on behalf of the family of the victim.

In brief, Mr Chairperson, only the applications of Coetzee, Pretorius, and Mong are opposed. Insofar as Mkhonza, Veyi and Selamolela are concerned, the applications are not opposed and the primary reason for that is the steps which initially Veyi took in respect of the family, steps to seek reconciliation and to assist the family in determining what became of their daughter and sister.

Additionally I don't make any submissions in respect of the applications of Ross and Williams, their involvement is of an extremely limited nature and it doesn't deal with the essential conflict between the parties here.

Mr Chairperson, to take the matter further, if one has reference to the criteria as set out in the Act, I don't believe that any of those aspects are in dispute, save and except the question of full disclosure.

I wanted to highlight certain aspects in my Heads, I want to make certain submissions in respect of purely that aspect. Mr Chairperson it's common cause that Nokuthula Simelane was an ANC agent and that she acted for them as a courier. It must follow from that that she was exposed to the risk of arrest and attempts to extract information from her. I believe that it's common cause that she disappeared and has not been seen since approximately September 1983. It appears from the evidence that we have before us that she was last in the presence of Coetzee and Pretorius. There is the allegation that she was handed over to Mothiba and Langa for re-infiltration into Swaziland.

If I can deal with the instructions which were given to her. Coetzee alleges that she brought certain target identifications for inter alia, the Fairlands and the Bryanston power stations. Mr Chairperson, my reference to pages are under the, I believe, the bundle that you have before you, which doesn't correlate with Mr Visser and Mr Lamey's bundles, but references to pages 14 and 15 and to page 40. I have the version in which there appear to be fewer pages than what Mr Visser and Mr Lamey have. It's a sort of condensed, or the version with smaller line breaks and what have you, line spacing.

When the denial in respect of that instruction is put to Mr Coetzee, he avoids the issue and the reference there is page 148. Pretorius's version is somewhat different and he says that she brought confirmation that these particular operations should proceed. Mkhonza in turn denies that Simelane was involved in these - in the Bryanston and the Fairlands power stations.

I want to associate myself with the submissions made by Mr Lamey in respect of the aspect which he has raised on the Bryanston and Fairlands power stations to the effect that details in respect of Ms Simelane are not contained in the applications themselves and there is one further aspect, and whilst I don't have the reference to it, on a reading of the record, it appears to me that Mkhonza and Langa sent the message back to Swaziland, I think it was through Langa, that the meeting between Simelane and Frank and Scotch did not take place. There is the evidence from Mkhonza that he was taken off to the East Rand and that he had his hand put in plaster of Paris and the message was sent back that this meeting didn't take place. If the meeting didn't take place, it follows that the instructions could not have been conveyed. My learned friend, Ms Thabethe points out, this is at 377 of the record.

There is, as I recall, Mr Chairperson, a dispute in respect of the business relating to "kopdraai" as to whether all of the policemen were advised that this, from the outset that this was that kind of operation or not, but it is clear that towards the end of the alleged turning operation, certain policemen are kept away from it, are kept out of it and so you deal with quite a large group of policemen initially and that that gets whittled down. My submission is that that doesn't follow in logic.

Additionally, following from that is in response to a question put by Ms Thabethe, Coetzee alleges that Simelane was re-infiltrated for use and the record reflects that it was for use in the Natal and Swaziland portions of the ANC, but it is common cause and it's not disputed that she was part of the Transvaal Urban Machinery and she would have been of no use to either Coetzee or Pretorius as part of the Natal Machinery. I'm sorry, I don't have the reference there, I will try and track that down.

There are a number of aspects pertaining to her detention and her assault, and I've just given you the references there, I don't want to take you through each and every one of those. Briefly those are the use of foot cuffs and on page 36 is the lengthy debate with Mr Coetzee as to the logic of that. There is the question of the discrepancies in respect of her assault and if you have a look at the evidence of Mr Pretorius where, on my cross-examination he said there was no difference between how she would have been treated and how she would have been assaulted as a woman, as opposed to a man and for some reason in re-examination he said that that was not the case, that there would have been a difference.

There's been the debate between the various applicants in respect of the use of electric shock treatment. Can I refer you there specifically to page 197. This is Mr Pretorius being led by Mr Visser. Towards the bottom of that page, Mr Chairperson, Mr Visser asks:

"Which assaults did you commit against her?"

He says:

"By slapping her with a flat hand against her face and head, by then punching her with my fist in her sides and on her back and then I was also part of the suffocation action on the particular person."

Mr Visser asks:

"Was any electric shock device used?"

The answer is:

"Yes."

Over the page, Mr Visser I would submit is clearly surprised by the answer.

"Were you ..."

"No."

"Aware that there was any such device on the farm?"

I didn't see anything like that and I wasn't aware of anything like that."

And then later on when he reverts to the prepared statement, he reverts to the question of the denial of Selamolela, that you will find at page 199 where he reads from his prepared statement.

There is the manner in which Mr Coetzee dealt with Mr Lamey's cross-examination in respect of the severity of the assault. The physical condition of Ms Simelane and I want to submit that the way that he deals with that, and I'm referring to page 31.

Then there's the lengthy debate about the question of soiling, the washing in the dam and that whole issue and then through the Heads there has been an ongoing debate as to whether she was kicked or not and whether Coetzee and Pretorius participated in that. There are two references that I can give you. I think firstly at page 28 Mr Coetzee is being cross-examined by Mr Lamey. Then Mr Lamey, about midway, about ten lines from the top says:

"And their task was to watch her and to hold her during interrogation. Is that correct?"

Mr Coetzee replies:

"That is correct, Chairperson."

Then ...(indistinct) but it says:

"And he"

and I think Mr Lamey said that: "Veyi sal getuig."

"Veyi will also give evidence that from time to time he had to and his participation was more than holding onto her during the interrogation. He slapped her, he can recall kicking her."

"Yes, Chairperson."

"Is that correct?"

"Yes Chairperson."

And then if you have a look at page 155, this is Mr Coetzee answering questions from the Panel. About midway down the page, Mr Chairperson you asked Mr Coetzee:

"Those assaults during the first week, were they serious assaults?"

Mr Coetzee replies:

"I have already stated that we bagged her, we hit her with the fist and we slapped her. There is a possibility that she may have been kicked, but at this stage I cannot recall."

To move on Mr Chairperson, we deal with the consequences of her arrest as set out by the applicants. They allege that, this is Coetzee and Pretorius, that she was co-operative. Coetzee says that there were two reasons, or two separate incidents which indicate that she was co-operative. There was firstly the arrest of eighteen cadres and then secondly the action taken against the ANC's MK Special Operations Unit led by Barney Molokoane. If you have reference to the written application by Mr Coetzee in bundle two, page 276, he makes those allegations.

Mr Chairperson, it's not disputed on the evidence that Ngedi was only arrested during May 1983, sorry that should be 1984, my apologies, there's a typographical error there. He was arrested during May 1984 and that is more than eight months after Simelane's abduction and Barney Molokoane's death occurred during November 1985, more than two years after her abduction. Mr Chairperson, if you have reference to the press clippings which were attached to Mr Coetzee's application, there is an article, I think from the "Beeld," there's an Afrikaans article which makes reference to an incident in Durban. Maybe I should just get it out for you.

JUDGE DE JAGER: What was the exhibit number there, or wasn't it that one?

MR VAN DEN BERG: Mr Chairperson, it's Exhibit T and attached to Exhibit T, I think marked as page 27, it deals there with "18 Trained Terrorists Apprehended". Now the article is not dated, but if you have reference to the bottom of the second column of that article, it deals with

"Apart from the seven ANC terrorists who were shot dead during skirmishes with the police, four of them ..."

that's a refinery in English, I'm sorry, my Afrikaans let's me down somewhat, ...

"in Durban."

That incident, Mr Chairperson, took place on the 13th of May 1984. It was the subject of an amnesty application heard at Durban during October last year, and if you have a look at the ANC's Further Submissions, Volume 2, the list of MK operations page 81 details that application. It was dealt with in the amnesty application of Mr Aboobakar Ismail. So that's just to give the 18 a date. In any event, neither Coetzee nor Pretorius could dispute that it was around the 25th of May.

Then there's the whole question of - sorry Mr Chairperson, at the top of page 5 of my Heads, I say that it's common cause that SWT66 facilitated the arrest of Ngedi. I hear through Mr Visser's argument this morning that that's perhaps not common cause, but I'm going to revert to that aspect later on, when I deal with some of the aspects raised by Mr Visser in his Heads.

Moving on then is the question of the handling of information. To refer you to page 340, this is the evidence of Mr Pretorius. It was the whole question which I raised with him as to what was done with the information which was extracted from her and we dealt with the question of the various reports and reporting back to headquarters and inter-reaction with other branches of the Security Police. About I would say two-thirds of the way down, Mr de Jager sought clarity, well it's about half-way:

"Excuse me I think that you said that it is correct. "That is why we did", so therefore you are saying that you reported to Head Office and you sent directly the reports to let's say the Eastern Transvaal."

Pretorius says:

"Yes."

"Well he used the example the Eastern Cape"

And he says:

"That is correct, yes, the Eastern Cape."

I then ask:

"Did you send feedback or information with regard to Sibongile to the Eastern Transvaal?"

And the answer is:

"Negative."

Now one of the things that was put on the table quite early on in this application was the relationship between Ms Simelane and Mr Molokoane and I believe that it's common cause, Molokoane was active in the Eastern Transvaal, he was one of the cadres responsible for the attack on Sasol.

We deal with Duma Nkosi and I hear what my learned friend Mr Visser says about things pointing in different directions, but the fact of the matter is that no action was immediately taken against Nkosi. He was later arrested and from Mr Thwala, the suggestion is that that was as a consequence of the arrest of Ngedi.

CHAIRPERSON: Was - after the initial order to cease operations, were they, this unit was one of them that was reactivated eventually, according to Mr Thwala, if I remember his evidence correctly.

MR VAN DEN BERG: That is correct, Mr Chairperson.

CHAIRPERSON: Would this arrest have been subsequent to the reactivation?

MR VAN DEN BERG: As I understand it Mr Chairperson.

CHAIRPERSON: Yes, thank you.

MR VAN DEN BERG: The there is the issue of the manner in which Coetzee and Pretorius answered questions. There were a number of occasions on which initially I thought it was my poor command of the Afrikaans language, but it was also taken up by Mr de Jager as to the way in which questions were answered and the kinds of answers that were elicited which were ambiguous, vague, meaningless, they were in Security Branch kind of double speech and I give you an example there at page 43 and 44.

To deal with the issue of SWT66 and she is a person who traverses the length of this application, initially when I had asked for a disclosure of her identity, that was refused and perhaps rightly so at that point in time and it may well have been a fishing expedition, but it's apparent that her role was more, or she had a larger role in this matter than initially met the eye. It's clear that she was a conduit between Mkhonza and Langa and Gilbert Thwala. It's clear that she had access to high-ranking ANC members including Siphiwe Nyanda. It's the evidence of Mkhonza and Veyi that information obtained from her led to action against Ngedi and I will revert to you with a more detailed reference. My submission, Mr Chairperson, is that it would have taken a very simple enquiry on her part or directed to her, to ascertain what became of Nokuthula Simelane. She was highly placed. In her feedback sessions with Coetzee, that question could very easily have been asked and so the suggestion by Coetzee and Pretorius that once she was re-infiltrated, they lost contact, with respect Mr Chairperson, simply doesn't follow.

Mr Chairperson there is the evidence of Gilbert Thwala and whilst those of us who are legal practitioners and we may have a discomfort in the manner in which he conducted himself, I think that it would be fair to say that the interaction between Mr Visser and Mr Thwala really was almost a reversion to the conflicts of the past. It was quite clear that what Mr Visser wanted to do was to have fingers pointing at the ANC and Mr Thwala rather than at his clients and that is the spirit in which Mr Thwala dealt with the matter. My submission is that he was a direct and a forthright witness, that his cross-examination did not undermine material aspects of his evidence-in-chief, that he displayed less courtesy than one would expect to Mr Visser, I don't believe that that should distract you from the essential aspects of his evidence. What is crucial from his evidence is, and this was put to both Pretorius and Coetzee, is that they had absolutely no knowledge of the Vaal Unit, none whatsoever. It suggests that there was no co-operation. Two possibilities exist in respect of Mr Thwala. He's lying when he denies that there was knowledge of her return, or he was not consulted in respect of steps taken against her.

Insofar as the second proposition is concerned, only a limited number of people knew that she was coming to South Africa. Only as I understand it, Mr Thwala or SWT66 could have drawn her disappearance to the attention of the Security and the Intelligence Department. Mr Thwala's evidence is quite clear that in any steps taken against her, he would have been consulted.

Insofar as Mr Thwala's conduct is concerned, he immediately made contact. When he realised there was a problem, he made contact with the family, he did so telephonically. He met with the family on a number of occasions in Swaziland, he followed that up on his return to the country. If Mr Thwala was as guilt as, or if there was a possibility that Mr Thwala was involved in this matter, my submission is that he would have stayed as far away from this matter and from the family as he possibly could have, he would have said that he knew nothing about the matter. My submission is that on the basis of his conduct, post, his dispatching her and his conduct now in coming forward, you can't point fingers at him and the probabilities must point the other way.

Mr Chairperson, if I can deal with various aspects raised by my learned friend in his Heads of Argument and I'm simply going to follow his Heads and raise various aspects. If we could start, Mr Chairperson at page 47, paragraph 173. If I understood Mr Visser correctly, it's concede that the Mpo that is referred to is in fact Gilbert Thwala. You will recall that at the beginning of the application a photograph was handed up, it's common cause that that photograph is not Gilbert Thwala. It's common cause that the photograph of the person concerned was not the person who instructed Simelane to come to South Africa.

JUDGE DE JAGER: But was that photograph about a person known in I don't know which circles, as Mpo?

MR VAN DEN BERG: Mr de Jager, it would appear from the evidence that the Security Policemen identified him as Mpo, but from Mr Thwala's perspective and from the perspective of people in the Transvaal Urban Machinery, he was known as Curtis and various other names.

Can I refer you to page 38 of the record and also pages 41 and 42, 38, initially, Mr Chairperson. This is Mr Lamey's cross-examination of Mr Coetzee, the bottom of the page:

"And as such he (I presume that that refers to Mkhonza) received instructions from some MK Commander Mpo to meet with Ms Simelane at the Carlton Centre where she had certain material, at that stage he did not know if it was hard material, weapons, ammunition or soft mater, documents and other information, to hand this over to him."

And Coetzee agrees with that.

Then pages 41 and 42, towards the bottom of the page, on a question from Mr de Jager. Mr de Jager asks:

"Are you sure that you are referring to two separate people when you refer to Mpo, or is there just one?"

Mr Lamey then continues with his cross-examination:

"Well that's what I'm trying to clarify, Chairperson. I'm simply in the process of obtaining instructions, if I might have a moment please?"

Then I intervene:

"Mr Chairperson, earlier this morning there was a delay because of certain information which had been given to the Evidence Leader in respect of a person identified as Mpo. That person is present here. I haven't had the opportunity to consult with him, but I can certainly try and facilitate this process as well."

You respond to me saying:

"Yes, we note that and that might be where the answer lies, Mr Lamey."

Then over the page Mr Lamey continues and he says:

"Mr Chair, may I just put my instructions as far as my client's knowledge is concerned. I have shown him the photograph which has been distributed. The MK Mpo whom he says he last saw in Swaziland, who gave him the instructions to meet the lady Simelane is not the one on the photograph. He also doesn't know the other name of that specific MK Mpo, that's as far as we can take it."

MR LAMEY: Chairperson I just - the reference on the other record is page 95 to 96, in the official record.

MR VAN DEN BERG: Then to move on in Mr Visser's Heads, page 50, paragraph 196, the corrections in respect of Mpo (Justice Ngedi) have been made, but the allegation there is made that Justice Ngedi was arrested while she was on the farm and that's not correct and so we can move on from that.

We've dealt with paragraph 198 and the question of the false flag operations to protect Ms Simelane and I've given you the reference there which my learned friend had given us and that's page 377.

Page 56 Mr Chairperson, paragraph 222, I've dealt with the question of what Mr Coetzee said in respect of kicking and the references there are page 28 and 155.

Mr Chairperson, if we can deal with the submissions in respect of Mr Thwala, page 76 and paragraph 252. The suggestion there is made that Mr Thwala made no real effort to trace her, but if you look at his evidence-in-chief there is the evidence in respect of the communication with the family, the family initiating discussions with an attorney, the fact of the matter is that Mr Thwala was in exile, he was a member of a banned organisation at that time. I'm not sure what enquiries he could have made internally, he followed it up through his channels by making a report to the ANC and by following that up on various occasions. You can have reference I think to page - on the record that I have at 2196, that's his evidence-in-chief.

"I came in with Duma, we tried to ask the International Aid and Defence Fund to apply for an interdict that Nokuthula should be released so that she attends the graduation ceremony, but our problem was that nobody would admit that Nokuthula was ever arrested."

I think that my pages may be one or two different to what you have them, probably 2194, it's in that vicinity.

Then page 77, paragraph 252.7. That simply doesn't accord with the evidence which Mr Thwala gave in respect of his various meetings with the family. Page 77, paragraph 253, paragraph (a) thereof, the steps that he took. The steps that he took, Mr Chairperson, were in respect of the units which he believed could be compromised, they didn't stop operations altogether and so the fact that arms continued to be infiltrated through other channels unrelated, Mr Chairperson I mean with respect that doesn't take it any further and then paragraph - sorry page 78, small paragraph (d), the aspect of the leak. In cross-examination he conceded that he thought there was a leak, but he denied that the leak was Simelane. He maintained that the leak must have been Selamolela (who had no part in bringing Ngedi from Swaziland) and SWT66. Mr Chairperson, can I refer you to the record page 2136, your's might be probably 2134, I'm not quite sure why there's a difference in the numbering but this is my cross-examination of Mr Selamolela. I've got 2136, Mr Chairperson. At the top of the page it says:

"The time that you participated in his arrest, was the informer SWT66 present?"

I see that it is on that page but slightly further down. Mine's right at the top.

MR VISSER: I'm sorry, may I just request Mr van den Berg, my learned friend to tell me where he is at the moment and what he's busy with.

MR VAN DEN BERG: Mr Visser I was dealing with your page 78, the small paragraph (d) and then I wanted to refer to the record page 2136 and it seems to be a little way down the page, about a third down, where I asked Selamolela about SWT66. I just wanted to draw that portion of the evidence to the Committee's attention. Mr Selamolela says in response to my question

"The arrest of Justice Ngedi was brought, the information was brought by W66, so that is the one who made it possible that Justice Ngedi should be arrested."

I say: "If I understood your evidence correctly, he was arrested when he crossed over from Swaziland into South Africa. Do I remember correctly?"

Mr Selamolela says:

"Let me explain it this way. Their informer whom I am talking about had a contact with Justice Ngedi in Swaziland, so W/O Coetzee arranged with that particular informer that we should go to Swaziland because a week before he was arrested, SWT66 went to Swaziland and when he came back he informed W/O that Justice Ngedi wanted to come to South Africa, then W/O Coetzee arranged that I should accompany that informer in Swaziland and then when we returned, we came with Justice Ngedi. That is when he was arrested at the border."

So the link there quite clearly is SWT66 and the evidence was that this occurred during May 1984.

I think those are the only things that I wanted to take issue with Mr Visser on.

Those are my submissions on behalf of the family, Mr Chairperson and as I said, they relate purely to the question of full disclosure. I won't address the other issues. I believe that as the evidence has been tendered, that those aspects would be satisfied.

CHAIRPERSON: Thank you Mr van den Berg. Ms Thabethe.

MS THABETHE IN ARGUMENT: Thank you Mr Chair. Initially I had no submissions to tender, but I just want to submit that I'm in support of my learned friend Mr van den Berg's submissions to you, especially with regard to the evidence that was led by all the applicants which are in conflict with one another, with regard to the period over which Ms Simelane was tortured. Mr Visser's applicant seems to be saying she was only tortured for one week, whilst Mr Lamey's applicants seem to suggest that she was tortured for the whole four to five weeks and Mr Chair and Honourable Members of the Committee, my submissions would be, it doesn't follow why, if Mr Visser's applicants claim that she turned within a week, why they would have still bound her in chains, leg chains and also there was evidence that they did slap here now and again. It just doesn't follow if she turned within a week, why they kept her for five weeks and I would support Mr Lamey's applicants that she was kept for five weeks and she was tortured for five weeks and I would argue that the Committee considers their evidence, or their version favourably.

Further, in support of Mr van den Berg's submissions, I would submit that the Committee considers favourably the evidence of Mr Thwala, Gilbert Thwala, that more especially the fact that if Nokuthula Simelane was taken to Swaziland as the applicants have alleged, then Mr Thwala would have known about it and I don't think he has any reasons, or I don't see any reasons why he should lie about the fact that he did not know anything about Nokuthula Simelane's coming back to Swaziland.

Further Mr Chair, I think I would like to support the fact that it's an understatement to say Mr Gilbert Thwala did not take any steps to look for Simelane. I think that's an unfair statement to make, more especially because the question was asked more than three times and Mr Gilbert Thwala did state categorically what he tried, or the efforts that he made to try and find Ms Simelane.

Thank you Mr Chair and Honourable Members of the Committee.

CHAIRPERSON: Thank you Ms Thabethe. Mr Visser, any reply?

MR VISSER: Chairperson, I will only reply to those issues which I believe I haven't covered at all in my own evidence-in-chief.

CHAIRPERSON: Yes.

MR VISSER IN REPLY: Chairperson on Mr Lamey's argument there's one point and that is the issue of the reference to the written application by Mr Coetzee and as I understand, his criticism is if Simelane had given Coetzee and Pretorius the targets which they say she identified to them, one would have expected that in Coetzee's application where he applied at page 251 for the limpet mine explosions and the Spoornet connection explosion. Chairperson, it is true that Ms Simelane's name is not mentioned. That's clear, but it's also not entirely true to say that Coetzee did not mention at all the fact that he received this from information, the targets and if you look at page 252 you will see the reference. It's a long story that he has, Chairperson and he talks about all sorts of things and then Brig Muller's instructions etc and then he comes to page 252 and he says, the second paragraph

"At this stage the particular targets were already known to me as being the targets which were made known to me by one of the cover agents. Brig Muller had to be informed by me regarding the precise location of the two aforementioned power stations."

So there is a reference, fair enough, point conceded that Ms Simelane's name is not mentioned, (1), point (2) is that one would have expected if he intended to refer to Ms Simelane, he would not have referred to an agent, but to an informer, Chairperson and then the date. He wasn't aware of the date. Now my submission on that issue is that these applications, you've heard evidence before in what haste these applications were drawn, he hasn't given evidence about any of that at this stage and there may be a perfectly logical explanation, one of them being that at the time we just put down the essentials of what we were certain about and we didn't go into detail. Chairperson with respect, just that one swallow doesn't make the Summer and it doesn't detract from the value of my submissions in this regard to you and of their evidence to you, Chairperson.

Mr Chairman I don't believe that there's anything which I haven't dealt with, which Mr Lamey has mentioned and I will ...(intervention)

JUDGE DE JAGER: Mr Visser, the electrical shocks. You refer to that, I think it was page what? Can you ... was that page 78, or what was on page... no it wasn't page 78. Just a moment. Mr van den Berg you referred to it I think.

MR VAN DEN BERG: The reference that I made Mr de Jager was at page 197 in respect of Pretorius.

JUDGE DE JAGER: Yes.

MR VISSER: Thank you. If I may immediately go to that issue, Chairperson. Page 199, my learned friend in his written argument and in his oral argument stated by way of criticism that it was agreed that, by Pretorius, that electric shocks were in fact applied to Ms Simelane as I understand it and he referred you to page 199, sorry 197. Now Chairperson, I want to read that to you. Chairperson, I'm going to have to borrow my records back from you unfortunately. I received from Ms Thabethe the other record and I'm just getting referred to the one and when I have to refer to the other. I'm looking at 197 right now, Chairperson and I want to read it to you. I start at the bottom of that page, which my learned friend Mr van den Berg read, but I'm going to read a little further on. I say

"Was any electric shock device used?"

What is recorded here is:

"MR PRETORIUS: Yes."

Can we go over the page? My learned friend says I was taken aback. Well you can judge for yourself from what there is here, whether that was so or not.

"MR VISSER: Were you aware that there was any such device on the farm?

MR PRETORIUS: I didn't see anything like that and I wasn't aware of anything like that."

Now please ask yourself this question, how could the previous "yes" then be correct, Chairperson?

MR VISSER: Did you or anybody else in your presence kick her with a foot?

MR PRETORIUS: Not that I ever saw."

So that's the story, that's what my learned friend is relying on and with great respect, Chairperson, it's quite obvious that yes, either if it was said it was clearly wrong, or more probably it's a typing error, but it doesn't fit in with his evidence, his evidence is he never saw anything like that and he wasn't aware of anything like that. So that takes care of that point.

The second point that my learned friend made was with reference to page 133 and as I understand it, he criticised it. Yes, I don't seem to have 133 in this bundle. I'm just looking for it now. I don't seem to have it.

JUDGE DE JAGER: I haven't got it either in my bundle.

MR VAN DEN BERG: Mr Chairperson, I also don't have page 133, so I don't think that I would have referred to that. Perhaps if Mr Visser deals with the ...(indistinct) and I can give him the correct page reference.

MR VISSER: It might be that I've found it in the other record, Chairperson and that's the reference. Yes, in fact that is the position. The 133 is in the formal record which I want to refer you to that evidence. It starts

"MS THABETHE: Now after that five weeks or so, you decided to send her back to Swaziland, is that correct?

MR COETZEE: Yes, Chairperson.

MS THABETHE: For what purpose? Maybe I missed that evidence.

MR COETZEE: Chairperson, for the use in amongst the ANC structure in Natal, ag in Swaziland"

and my learned friend on that basis makes a submission in paragraph 8.2 of his Heads. With great respect Chairperson, he corrects himself when he says Natal, ..."ag, in Swaziland", in other words "I mean Swaziland, not Natal", my learned friend keeps him to that. It's no point at all.

Now Chairperson, I thought we made it quite clear. We don't concede on the evidence that the Mpo that gave the instructions was in fact Gilbert Thwala, but what we said is for purposes of this hearing, being as immaterial as it is, we're not going to contest that evidence. That was it, so let's step off that issue.

Now Chairperson, as far as the enquiries are concerned, my learned friend Mr van den Berg says: "What other enquiries did he have to make internally?" We never suggested that he made any enquiries at all, we asked him what enquiries he made. He could have made enquiries which we suggested with the ANC Head Office, with his command structure as did the family, etc. That's what we were talking about. We weren't talking about internally. We know that de Klerk, Attorney de Klerk made enquiries on behalf of the family.

Then Chairperson what my learned friend read in relation to my paragraph 253(d), he referred to page 2136 I think if I'm not mistaken, all of that refers to the evidence of Mkhonza, not to the evidence of Coetzee or Pretorius or Mong, with great respect. As far as Ms Thabethe's evidence is concerned - oh, Argument is concerned, she suggested, the only thing that I thought that I should comment on, she suggested that there was no reason for Mr Thwala to lie if he knew that Simelane had come back to Swaziland. Well, we thought that we pointed quite pertinently to some reasons why he would have all the reason in the world to act exactly as he did, if he had the knowledge that she came back and she is not alive anymore today.

Chairperson, I'm not going to rehash my main argument, I'm not going to fall into that trap. I hope I haven't missed anything material, but I don't believe I have and we do stick with our main argument and we ask you to consider that. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Visser.

Yes, thank you very much. That concludes the outstanding incident in this cluster of applications. The Panel is going to need time to consider this matter and to formulate a decision and hopefully also formulate decisions in all of the other outstanding incidents in this particular cluster where decisions have not yet been produced, so the decision would be reserved.

Ms Thabethe, I assume that takes care of this Panel's business here?

MS THABETHE: Certainly Mr Chair.

CHAIRPERSON: Thank you very much. Well then we will take the opportunity to thank the legal representatives for your assistance in this matter, it's appreciated and we extend the traditional thanks to everybody who assisted us in coming back here and being able to finalise this matter, our staff, the proprietors of this venue, the interpreters, the members of the public who attended, the police for their assistance and then last but not least, to my colleagues on this Panel with me for their assistance, it's much appreciated.

On that note we will adjourn the proceedings. Thank you.

HEARING ADJOURNS