CHAIRPERSON: Mr Visser, I think we were waiting for Mr Schoon.
MR VISSER: That is correct Chairperson. Mr Schoon is in attendance, he is ready to take the oath and he wishes to address you in Afrikaans.
WILLEM F SCHOON: (sworn states)
CHAIRPERSON: Please be seated. Which language would you prefer to use, English or Afrikaans?
MR SCHOON: Afrikaans please.
CHAIRPERSON: I think you must change the channels. Are you all right now, please be seated.
EXAMINATION BY MR VISSER: Brig Schoon, you are here to testify in an amnesty application, concerning an attack on a house of a Mr Nat Serache in 1985, on the 13th of February. Is that correct?
MR SCHOON: Yes, as far as my knowledge goes, Mr Chairperson, that is correct.
MR VISSER: You were not here yesterday at the hearing when we dealt with the application, where were you?
MR SCHOON: Mr Chairperson, I was at a doctor to receive flue treatment.
MR VISSER: Did you feel very bad yesterday?
MR SCHOON: Yes, I did.
MR VISSER: I assume that you feel a little bit better today?
MR SCHOON: Yes, I do feel better today because of the tablets that I have been taking.
MR VISSER: Are you applying for amnesty for your role in the attack on the house of Mr Serache? Can you tell us first of all, we find your application on page 75 to 88 of the Bundle, do you confirm the information therein subject to certain changes that may occur during the hearing?
MR SCHOON: That is correct.
MR VISSER: In the general background to the amnesty applications, serving as Exhibit A, have you read this document and do you confirm that your knowledge is the same as it was put out in the document and that it must be incorporated in your evidence?
MR SCHOON: Yes.
MR VISSER: You also received a Bundle beforehand, Exhibit B, it was a working from Brig Loots where he described the workings of the Western Transvaal Branch concerning MK activities in Botswana and liaisons with the government on both sides. Do you confirm that?
MR SCHOON: Yes.
MR VISSER: Can you then just tell us Brig Schoon, what is your memory with regard to the circumstances that led to the attack on the house of Mr Serache?
MR SCHOON: Mr Chairman, we had discussions, it was by the Military Intelligence, the Security Branch, it was on a farm between Zeerust and Mafikeng.
MR VISSER: Were you there, were you present there?
MR SCHOON: Yes. It was on a certain day ...
CHAIRPERSON: Sorry Mr Visser, when you were present, were you the person with the highest rank from the Police?
MR SCHOON: I do not believe I was, I think there was a General from the Defence Force that was present. Of the Police, yes, at that stage.
CHAIRPERSON: Who would have been that General?
MR SCHOON: Gen Liebenberg arrived the next day, but I assume that Gen Joubert could have been there.
CHAIRPERSON: But from the Police, were you the person with the highest rank?
MR SCHOON: Yes, that evening I was. On that evening.
CHAIRPERSON: Thank you.
MR VISSER: Let us just begin again, at that stage, what was your position? Where were you stationed and what was your position?
MR SCHOON: I was the Security Branch in Pretoria, where I was the Group Head of Section C.
MR VISSER: Was that the so-called Terrorist Unit?
MR SCHOON: Yes Mr Chairperson.
MR VISSER: And amongst others, Mr Eugene de Kock served under your command?
MR SCHOON: That is correct.
MR VISSER: And he was at Vlakplaas?
MR SCHOON: Yes, that is correct.
MR VISSER: You said that on the first day you were present, and the question is now, was there an officer with a higher rank from the Security Branch that evening?
MR SCHOON: No Mr Chairperson.
MR VISSER: What was discussed on that first evening?
MR SCHOON: Mr Chairperson, information was available that a certain Mr Serache who was in Botswana and that he managed a safehouse for MK members in Botswana and as far as I can recall, the information showed that at that same time there were people who were prepared or preparing to infiltrate South Africa.
MR VISSER: Very well. You have mentioned what branches of the Security community were present, but can you remember people, or by name, who were present?
MR SCHOON: There was Brig Loots, Gen Steyn and the Branch Commander of Zeerust, I think it was du Preez Smit and Mr Crause and various others whose names I cannot remember right now.
MR VISSER: In your opinion, how many people were at this meeting?
MR SCHOON: Approximately 20 I would say, it could have been more.
MR VISSER: Can you remember if the current Gen Erasmus was present?
MR SCHOON: It is possible that he could have been there.
MR VISSER: You cannot personally recall it?
MR SCHOON: I know that some of his people were there, and he possibly was present too.
MR VISSER: And then Brig Oosthuizen?
MR SCHOON: Yes, he was present.
MR VISSER: Col Muller from the Soweto Branch?
MR SCHOON: Yes.
MR VISSER: In other words there were people there that you could not recall?
MR SCHOON: That is correct.
MR VISSER: If Gen Erasmus was present, would he have been your Head or would you have been the senior officer?
MR SCHOON: I would have been the senior officer.
MR VISSER: Although he became a General later on?
MR SCHOON: Yes.
MR VISSER: You discussed Nat Serache. Did you also discuss other matters concerning MK activities in botswana?
MR SCHOON: Mr Chairperson, I believe that there was other discussions, but mainly it was about Nat Serache.
MR VISSER: The Security Branch, did they convey the information that they had, to the others?
MR SCHOON: Yes.
MR VISSER: What did you think will happen because of this planning?
MR SCHOON: It was very clear that the Special Forces will launch an attack on the specific house in Botswana.
MR VISSER: Mr Schoon, you were also involved in the establishment of a arms cache in Krugersdorp, is that correct? Was that also in 1988? I am sorry, I retract that, I am confusing two issues.
CHAIRPERSON: You may be asking too many questions then.
MR VISSER: Mr Chairperson, there is an easier way to make me - what was your role or ...
CHAIRPERSON: Do I have to talk to the Special Forces?
MR VISSER: You provided information, and what else?
MR SCHOON: According to my knowledge it was only the conveying of information.
MR VISSER: Did you hear anything else at a later stage concerning the planning meeting on the first day?
MR SCHOON: Yes, reports were given that the house was attacked in Botswana, but that nobody was injured or killed.
MR VISSER: We have heard in the document that was presented by the Investigation Team of the TRC, that people were injured in this attack. Were you aware of that?
MR SCHOON: No, but it is possible.
MR VISSER: And you then ask for it to be included in your application for amnesty? On the second day, what happened?
MR SCHOON: On the second day, Gen Liebenberg and Gen Schutte who were then at that stage Head of the Security Branch, also arrived at Ottoshoop.
MR VISSER: Were they informed about the meeting of the previous evening?
MR SCHOON: Yes, they were.
MR VISSER: Did Gen Schutte say anything?
MR SCHOON: Well, he said that he was satisfied, and that is about it.
MR VISSER: But you have already decided about the action, it was an authorised action?
MR SCHOON: Yes.
MR VISSER: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VISSER
MR KOOPEDI: I have got no questions for this witness.
NO CROSS-EXAMINATION BY MR KOOPEDI
MR MALAN: Mr Schoon, just so that I can understand it better, it was a joint meeting of Security Branch members and Special Forces?
MR SCHOON: That is correct.
MR MALAN: So the decision was made by both sections and was supported by both, but Special Forces would be the operators in this?
MR SCHOON: That is correct.
MR MALAN: Mr Schutte just testified, he said that he will give his, he will agree what will happen?
MR SCHOON: Yes, but it was a ruling that Special Forces will not act across borders. Can you remember if he repeated it there?
MR SCHOON: No, he didn't.
MR MALAN: Thank you.
CHAIRPERSON: Mr Schoon, I know that we are here to talk about the Serache incident, can you remember what else did people talk about at this meeting?
MR SCHOON: Mr Chairperson, it is possible that we could have talked about other targets.
CHAIRPERSON: It must have been?
MR SCHOON: Yes, I believe so.
CHAIRPERSON: Can you remember?
MR SCHOON: No, I cannot specifically recall what it was about.
CHAIRPERSON: You see, the reason why I am asking this question is, I would like to find out what this meeting was about.
MR SCHOON: It was about deciding on targets and Nat Serache was the primary target.
CHAIRPERSON: Identified as the primary target, he was identified as one of the targets at that meeting?
MR SCHOON: That is correct yes.
CHAIRPERSON: Let us discuss the unwritten agenda. Did you just talk about targets or did you, or was one of the items on the agenda, just targets or was there anything else on the agenda, concerning policy, possible actions within the borders of the country, or did you just discuss targets over the two days?
MR SCHOON: According to my knowledge, it was just targets in Botswana that we discussed.
CHAIRPERSON: It was over a period of two days?
MR SCHOON: Yes. Different people from the Security Branch made an input and I believe from Special Forces there was also certain input.
CHAIRPERSON: Now we get to the nitty gritty of the question that Mr Malan just asked you. I am always under the impression of the evidence in this specific hearing, that the decision to do something to Mr Serache and his house or whatever, was made or completed in the Defence Force, and that is my impression.
During the evidence there was talk about this meeting that took almost two days. You as the Head, the most senior person of the Police, testified that but no one of the Defence Force testified. You will be in the best position then to tell us what this meeting was about. Now I ask you specifically, and you testified that only specific targets in Botswana were discussed during the two days.
MR SCHOON: That is correct.
CHAIRPERSON: Remember that it seems to all of us that the decision to attack Serache's house or him personally and his wife, had been made. When you arrived at the meeting, the impression was created that that decision had already been made in the Defence Force, then what would you then discuss? If I am correct and if that decision had been made, what would you then have discussed?
MR SCHOON: Chairperson, I do not know if the Defence Force had already taken, or made that decision. They could only make that decision when their Commander was present and that was Gen Liebenberg, to then continue with such a decision.
CHAIRPERSON: But you were there, can you tell us what was discussed concerning Serache's attack?
MR SCHOON: Mr Chairperson, I can broadly speaking say that we discussed targets.
CHAIRPERSON: But you testified that Serache was one of the targets?
MR SCHOON: That is correct.
CHAIRPERSON: And it was discussed?
MR SCHOON: Yes.
CHAIRPERSON: So what was discussed and what was the decision made?
MR SCHOON: Information was provided by different members of the Security Forces.
CHAIRPERSON: Let us look at both options or possibilities, when a decision was made or when you started this meeting to continue or not - if this decision had been made by the Defence Force, I can understand that certain aspects for example what car he is driving, where he lives, who does he live with and ultimately the people from the Police could provide them with such information.
If the decision had not been made at that stage, by any one, then the discussion had to be or would have been about more serious aspects concerning Serache, would you agree with that?
MR SCHOON: Yes Mr Chairperson.
CHAIRPERSON: In that case, a decision would have been made that "look, here is a man and his wife who would be considered as two classic targets and they had to be eliminated", am I correct?
MR SCHOON: Mr Chairperson, I cannot recall that his wife had been mentioned.
CHAIRPERSON: Maybe I am making the same mistake as Mr Visser, but in any case, whatever the target was, would you have discussed matters at that meeting and the Defence Force tell what they know about the target, as well as the Police, that if his deeds were of such a serious nature, that he had to be eliminated or not, is that how it happened?
MR SCHOON: Mr Chairperson, as far as I can recall, all the information came from the Security Branch's side, we handled sources that was connected with the MK members in Botswana.
CHAIRPERSON: Was this now generally speaking?
MR SCHOON: Yes Mr Chairperson.
CHAIRPERSON: What contribution could the Police then make to this operation if the Defence Force had all of the information at hand?
MR SCHOON: Yes, they had the information.
CHAIRPERSON: And they conveyed this to the Defence Force?
MR SCHOON: That is correct, yes.
CHAIRPERSON: Who would have made the decision then to kill or eliminate these people?
MR SCHOON: Mr Chairperson, it was a presentation that went to their Head, to Gen Liebenberg.
CHAIRPERSON: But there had to be a decision beforehand "look, we are going to go to the Head of the Defence Force and it seems as if, it looks as if this person had to be eliminated"?
MR SCHOON: Yes, that is so.
CHAIRPERSON: So that decision that was made before it had to go to the Head, who would have made that, that would have been the most important decision concerning the life of that person?
MR SCHOON: Mr Chairperson, the information was placed upon the table and the next day it was presented to Gen Liebenberg and he took the decision.
CHAIRPERSON: So in that meeting no decision was taken?
MR SCHOON: Not to act, at that stage. The action had to be authorised or approved by Special Forces.
CHAIRPERSON: What was the purpose of the meeting?
MR SCHOON: To find consensus concerning Nat Serache as a target.
CHAIRPERSON: That is the point I am trying to make, who would then decide that he must be a target?
MR SCHOON: It was a joint decision.
CHAIRPERSON: Between the Defence Force and the Police?
MR SCHOON: Yes.
CHAIRPERSON: What if they did not agree on this?
MR SCHOON: Mr Chairperson, it was not in the hands of the Police to approve actions.
CHAIRPERSON: I am not talking about actions, I am talking about classifications and the classification of a person as a target or not. If there was not consensus, what would have happened?
MR SCHOON: Mr Chairperson, I believe that there was consensus.
CHAIRPERSON: Everybody agreed?
MR SCHOON: Yes, that this is a target and it had to be presented to the Head of the Special Forces.
CHAIRPERSON: In all the cases?
MR SCHOON: In this specific case, yes.
CHAIRPERSON: I am talking about the whole meeting, all the other cases, certain names were mentioned, I do not know how many, it doesn't really matter, but if a person's name came up, together with all the information that the Security Police had about that person, did it always show that he was a good candidate for elimination, he or she? Was there never an instance where you did not agree?
MR SCHOON: Not as far as I can recall, Mr Chairperson.
CHAIRPERSON: And that is how you got consensus?
MR SCHOON: That is correct.
CHAIRPERSON: I am trying to, please tell me if I am correct in this, I am trying to make a conclusion concerning this aspect.
If the information of a person indicated from the Security Police that this person is a threat to the country, then in the eyes of the Security Police, he becomes a target, but we know now that the Police could not then go across the border to eliminate people, so this meeting was actually a meeting to convince the people who could cross the border, that that person is a target, according to our information, he had to be eliminated, is that basically what happened?
MR SCHOON: Correct, yes.
CHAIRPERSON: So who took the decision to attack Serache?
MR SCHOON: The decision to act was taken by Gen Liebenberg.
CHAIRPERSON: From the Defence Force?
MR SCHOON: Yes, from Special Forces.
CHAIRPERSON: But as a target for elimination, he was identified by the Security Police?
MR SCHOON: That is correct.
CHAIRPERSON: Is this the case with all those persons?
MR SCHOON: As far as I know, yes Chairperson.
CHAIRPERSON: I see. Thank you.
RE-EXAMINATION BY MR VISSER: Could I be allowed to ask some questions in re-examination? Can you recall at what time this meeting commenced on the first day?
MR SCHOON: I didn't hear properly.
MR VISSER: Can you recall at what time the meeting began on the first day?
MR SCHOON: It was quite late during the afternoon and in the evening.
MR VISSER: Yes, and on the following day the meeting continued, or what was the position?
MR SCHOON: Chairperson, we were waiting for Kat Liebenberg to arrive.
MR VISSER: Did you continue with the meeting or were you simply waiting?
MR SCHOON: I think we continued, if I recall correctly. We continued with the discussion of general matters.
MR VISSER: There was also a division Military Intelligence, wasn't there?
MR SCHOON: Yes.
MR VISSER: What did they do?
MR SCHOON: They made their contribution regarding what they knew.
MR VISSER: Were they also active in Botswana?
MR SCHOON: Yes Chairperson, they also acted there.
MR VISSER: And did they also have their own intelligence sources there?
MR SCHOON: Yes, they did.
MR VISSER: Thank you Chair.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: You are excused.
MR SCHOON: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Is that all the evidence, Mr Visser?
MR VISSER: That is the evidence in this matter, thank you.
CHAIRPERSON: Have you got any witnesses, Mr Koopedi?
MR KOOPEDI: No, no witnesses Mr Chairperson.
ADV STEENKAMP: No further evidence, Mr Chairman.
CHAIRPERSON: It seems to be the evidence of this hearing. Mr Visser, have you got any argument?
MR VISSER IN ARGUMENT: Yes Chairperson, you have heard the evidence, it is fresh in your memory. We submit with respect that the applications in this case present no problem. It is clear that what had happened here was that there was a meeting which was a so-called target development meeting in which Mr Serache's name was tabled.
He was considered to be a very important MK man. There was the additional factor that as it was testified to by Brig Schoon and Gen Steyn, that there was intelligence that there were four cadres who were on the point of entering the Republic in order to commit acts of sabotage and terrorism, and that they were in the house of Mr Serache, and you will recall that Mr Steyn told you that there was an urgency in regard to Mr Serache and that he thought that it was that very same evening, after permission had been given, the go ahead had been given by Gen Kat Liebenberg, that the operation took place.
The applicants before you had no part in the practical execution of the operation and therefore cannot tell you what happened there, for obvious reasons, but it is clear that there was the operation. It is also clear that the house was destroyed or damaged and we know from the Investigation Unit's report that two people were injured, and we would submit Chairperson, that the applicants have complied with the provisions of the Act, and that you will consider granting them amnesty for any act, omission or offence committed by them in regard to this particular incident, and that would include their part in the discussions and their cooperation in the giving of information.
You will also recall that Gen Schutte and Gen Steyn told you in addition, that they were to assist where necessary on this side of the border, the recces who were going to go in. We would submit Chairperson that what we have here, is a conspiracy to commit murder and to destroy property, malicious damage to property and clearly none of these people afterwards, came clean on the actual events, and therefore they would also ask for amnesty in regard to defeating the ends of justice.
Thank you Mr Chairman.
CHAIRPERSON: May I raise two aspects with you, Mr Visser. All these applicants say they didn't know how the attack occurred, they had no party in deciding and planning the manner and the mechanism in which Serache, the target, would be eliminated, am I correct?
MR VISSER: That is correct.
CHAIRPERSON: They didn't know that they house would be bombed, and therefore could not have had any intention of committing malicious injury to property in respect of the bombing, because they didn't know that the bombing was going to take place. It could easily have been that he would have been shot?
MR VISSER: Chairperson, the evidence inter alia of Gen Steyn was quite clear. The facility was to be attacked and the people ...
CHAIRPERSON: Was that part of the plan or what?
MR VISSER: That is what his evidence was. His evidence was that that facility, the safehouse was the prime target and whoever was in it, that is exactly what he said.
Chairperson, it is a long time after that meeting today, where they have to give evidence, and clearly they cannot remember everything that was discussed there, but one must take a broad view of what must have happened there.
The probabilities are that they went for Serache and clearly that would have entailed by all accounts, damage to property.
CHAIRPERSON: Why does that follow?
MR VISSER: Well, because he ran a safehouse from where he accommodated infiltrators and we know that there were infiltrators in that house, according to what these applicants believed at that meeting. So clearly they were going to attack that house. If you attack a house, even in the slightest degree, there is going to be damage to that house. Even if the house is not the prime target, but in any event Chairperson, we come back to our submission and that is that if you are satisfied that there was an offence or a delict committed here, that we are perfectly happy if you consider granting amnesty for all offences and delicts which may appear from the evidence.
That would be in terms of the Act, Chairperson.
CHAIRPERSON: Defeating the ends of justice?
MR VISSER: Well, they obviously did not go to the press afterwards, or admit in public, or had anything done to prosecute people who had done this, and therefore there was a defeating of the ends of justice, that follows.
MR MALAN: May I just ask on this score, if you are guilty of the offence itself, can you at the same time be guilty of defeating the ends of justice?
MR VISSER: In my submission, very specifically yes.
MR MALAN: If you murder someone and you don't tell the authority, are you also guilty of defeating the ends of justice?
MR VISSER: No, but you must realise that these were all policemen that have acted, that have given evidence before you. They are there to maintain law and order and they have an obligation.
MR MALAN: They have an obligation to tell or to report crimes.
MR VISSER: Yes.
MR MALAN: But if they are the primary offenders, can you, I have never heard ...
CHAIRPERSON: A criminal, the perpetrator of an offence, I don't think has the intention of defeating the ends of justice, he has the intention of committing the crime.
MR VISSER: Yes, and thereafter?
CHAIRPERSON: So keeping it away from the police facilitates the commission of the crime?
MR VISSER: Yes, but now he is a policeman and the policeman is the man ...
CHAIRPERSON: Well, if he is the perpetrator, doesn't he then become a criminal whose act of committing a crime is his prime objective? How can he have the intention of defeating the ends of justice?
MR VISSER: Mr Chairman, yes, I don't want to waste too much time on this, but perhaps you have read Evil's case, where Chief Justice Roumpf as he was at the time - the facts in that case were that a person was assaulted in the charge office, in the presence of Evils and Evils didn't do anything, but the person who perpetrated - sorry Evils was the victim yes, but the point is ...
CHAIRPERSON: The person who assaulted Evils was not convicted of defeating the ends of justice?
MR VISSER: No, no, I know.
CHAIRPERSON: The other policemen who witnessed this was under obligation to charge their colleague, so we are talking about the perpetrator as opposed to a policeman with all the obligations?
MR VISSER: Yes, the observer wasn't a policeman in that case, but the attacker was. I am told that I am wrong, but be that as it may Chairperson. The fact is that Judge Roumpf ...
CHAIRPERSON: You said perhaps I read it, I have read it. The point of the matter is the assault took place in a charge office.
MR VISSER: That is right.
CHAIRPERSON: Where there were at least two policemen? One of the policemen assaulted Evils, the other ...
MR VISSER: Yes, that is how I had it, but I am told by my Attorney that I am wrong.
CHAIRPERSON: But any way for the purpose of the principle, his colleague, the policeman, watched this?
MR VISSER: Yes, and he didn't do anything.
CHAIRPERSON: He didn't do anything. He, who observed this, had an obligation to do something about it, and he didn't?
MR VISSER: Yes.
CHAIRPERSON: But the actual perpetrator who committed the assault, did not have any intention of defeating the ends of justice. He cannot have had.
MR VISSER: The judgement of the Court in Evils' case as I understand it and as I remember it, is that there is a legal duty on a policeman to report crime.
CHAIRPERSON: We will not quarrel with that.
MR VISSER: And what you are saying is, that is all very well, except if the policeman himself is the perpetrator?
CHAIRPERSON: Yes, well ...
MR VISSER: Chairperson, it may or may not be. If you will favourably consider granting amnesty for any offence or delict committed by these applicants on the facts of the matter, that is what the Act expects of you and that is what, we don't expect any more, anything more of you, and that is all that we would ask.
CHAIRPERSON: Any way, do you submit that conspiracy, malicious injury to property, defeating the ends of justice would apply to all the applicants?
MR VISSER: Yes, the defeating of the ends of justice only comes later, obviously. That is not part and parcel of what happens before.
CHAIRPERSON: Is that what they are applying for in each application in this hearing?
MR VISSER: Yes, indeed yes, Mr Chairman. Thank you.
CHAIRPERSON: Mr Koopedi, do you have any submissions?
MR KOOPEDI: As indicated when we started Chairperson, we asked for an indulgence in the sense that as soon as I am able to consult with Mr Nat Serache, I will sit with him, use the transcripts and we will then together prepare written submissions. This should be some time next week, Chairperson.
CHAIRPERSON: (Microphone not on)
MR KOOPEDI: My problem is ...
CHAIRPERSON: I am happy with the arrangement. You give me a date, I won't start working on the judgement until I receive your submissions, but you must tell me when?
MR KOOPEDI: I don't know when will I receive the transcript Chairperson. If I am given the transcript this week, the general conference is coming to an end over the weekend, so come next week, I will be able to consult and I would need only next week.
CHAIRPERSON: (Microphone not on) adequate time, would you accept that? I won't deliver this judgement until I have received your submissions, by no later than the 30th of August. You have about seven weeks.
MR KOOPEDI: I am happy with that Chairperson.
CHAIRPERSON: (Microphone), I don't receive it, I write the judgement without it. Is that fair?
MR KOOPEDI: What I will do Chairperson, should our decision be that there is no need to do any submission which is a very, which is a possibility, I will also indicate Chairperson, that we have decided not to furnish you with any submission, we won't leave you in the dark.
CHAIRPERSON: I will be happy with that, but all that I am saying is that if we agree on the 30th of August, at which date I will write this judgement. Whether or not I am in possession of your submissions, whether or not there are submissions that you have made, because I need to get done with my work. That is why I am asking you is seven weeks adequate time?
MR KOOPEDI: Chairperson, seven weeks is adequate time, however, I need to have the transcript. If I am not given the transcript in seven weeks, I won't be able to make the deadline, but I ...
CHAIRPERSON: I am prepared to put the order on record now that you be placed in possession of a transcript of this hearing, this particular one, relating to Serache, by no later than the 21st of August.
MR KOOPEDI: I am indebted Chairperson, that will help me a lot. Thank you. I am indebted, that will help me a lot Chairperson, thank you.
CHAIRPERSON: Mr Steenkamp, will you see that the tape recordings or records go to the necessary people who type this record?
ADV STEENKAMP: Mr Chairman, I will do so indeed. Maybe just for your information, there was also a previous ruling by yourself that if further submissions should be made in writing, whatever, they should be available within a certain time to all the parties as well, if they want to make further representations.
I am just mentioning it to you. That is on the first score. The second score, these proceedings are normally typed very quickly and they are available immediately on the website.
CHAIRPERSON: I am not talking about what normally happens, I am saying that it must be in Mr Koopedi's possession by the 21st and if they are busy with other work, they've got to drop that work, and do this.
I am not too sure what, Mr Visser, what is your attitude about receiving those submissions?
MR VISSER: Well Chairperson, there is very little I can say. I would have thought that Mr Koopedi would have been able to argue today, it is not his client that is going to argue? Secondly, the evidence isn't all that ...
CHAIRPERSON: I don't know what the nature of the submissions are going to be.
MR VISSER: Yes, well, I've got no answer ...
CHAIRPERSON: I undertake that if it is going to adversely, if it is going to be considered in any way adverse to your case, I will let you have a copy with the necessary time to respond to it.
MR VISSER: Well, with respect Mr Chairman, I want it in any event, whether you consider it to be adverse to my case or not, I want to decide about that.
CHAIRPERSON: That is what I asked you, what is your attitude?
MR VISSER: No, I thought that could be taken as written.
CHAIRPERSON: I don't know what you were thinking then, you want it in any case?
MR VISSER: Absolutely yes, please.
CHAIRPERSON: Mr Koopedi, I want it with me by the 30th of August, hopefully by that time you would have been able to give a copy to Mr Wagner.
MR KOOPEDI: I believe I would have done that Chairperson, I would have submitted it to them before.
CHAIRPERSON: In other words what I am saying is, while it is an indulgence on the panel's part, we want all possible arguments by the 30th of August.
MR KOOPEDI: Yes, I will make sure that ...
CHAIRPERSON: And everybody connected here must come to our assistance.
MR KOOPEDI: I will make sure that I prepare the submissions...
CHAIRPERSON: I am going to write the judgement on the 30th, with or without the submissions. Am I clear?
MR VISSER: Mr Chairman, matters are getting more and more complicated. It seems that we are going to have no time in which to react to these written submissions if they do come?
CHAIRPERSON: Mr Visser, let's be quite frank in this matter, how difficult can it be?
MR VISSER: It is not a question of how difficult, it is a question that I would need time to see what he says. I would also need a day or two at least. So if he gives the written submissions to you at the same time as he gives it to us, it gives us no time. Then he must give it to us, Mr Koopedi must give it to us a week beforehand Chairperson, beforehand.
CHAIRPERSON: That is what I have asked him, Mr Visser, I don't know if you understood my request to him. I asked him to come to our assistance because on the 30th I am writing the judgement.
It implies that he must get his documents to you or to Mr Wagner in good time.
MR VISSER: I would suggest a week beforehand. Aren't you prepared to make an order, Chairperson?
CHAIRPERSON: Why do you want to clutter the record with orders, Mr Visser? I mean we are trying to come to each other's assistance, I have come to your assistance in previous occasions and here we have an issue here that we need to assist certain people, and we are trying to do it in the most amicable way?
Now, if you really want an order, then I will make an order, but I didn't think that that would be the attitude? Do you want an order?
MR VISSER: Chairperson, I thought you were busy making rulings, if you are not making rulings, let's leave it.
CHAIRPERSON: Mr Koopedi, are you undertaking on record now to see to it that Mr Visser, let me not get involved in that, Mr Wagner's Attorney, that he is in possession of whatever submissions you are going to make, and if you are not going to make submissions, then you let him have that letter also?
MR KOOPEDI: Chairperson, I undertake that a week before the 31st of August, I would have by then, I would have prepared the submissions if any, and I would have delivered them to Mr Wagner.
CHAIRPERSON: That is what I am getting at, Mr Koopedi. If I say a week before the 30th of August, people normally go and rely on that date. I was hoping that you would be able to do it before then? ...(indistinct)
MR KOOPEDI: But that is what I said Chairperson, by that time I would have. For instance if I get the transcript next week, I would be able to find time to consult, and I would be able to make a decision whether we are doing submissions or not, which would till be a long time away from the end, but I am prepared to put it on record that all parties will have the submissions or will have knowledge that there will be not be any submissions, timeously, long before you want, long before the 31st of August Chairperson.
CHAIRPERSON: I will accept that and rely on that. We will reserve the judgement until then. What is the next matter, Mr Steenkamp.
ADV STEENKAMP: Mr Chairman, if I may ask your indulgence, there is a matter I think that needs to be cleared up, between, in the next matter of Naledi. If will take us about three or five minutes.
CHAIRPERSON: ...(indistinct)
ADV STEENKAMP: Mr Chairman, Mrs Naledi is not here yet. We have endeavoured this morning to trace her, she has been apparently a last - maybe you must use the earphones Mr Chairperson, I will gladly speak up.
Mr Chairman, the position is this, Mrs Naledi is not present here this morning.
CHAIRPERSON: We don't know why?
ADV STEENKAMP: Her legal representative is here, however, Adv Makhubele is present as Mr Wagner and Mr Visser is aware of. The position why Mrs Naledi is not here yet, was discussed briefly with Mr Wagner as well as Mr Visser.
Mr Visser's attitude was there is no way he will start with Naledi, he is ready and Mr Loots is only available for today while we are still putting matters on ...
CHAIRPERSON: Mr Steenkamp, let me just point out one thing and I am getting tired of this. ...(indistinct) the panel seems to be the people who have to react to the whims and fancies of everybody else. I am asking why the victim isn't here.
I am not concerned as to what was agreed upon between representatives, etc. Is there a reason why she isn't here?
MS MAKHUBELE: Thank you Chairperson, if I may address the panel. Apparently at the pre-hearing it was decided that the Naledi matter would proceed today, which is Tuesday. I am told that Mrs, unfortunately the victims were not informed of the arrangement. The letters that they have just state that between the 10th and the 14th.
Mrs Busang or Mrs Naledi came here yesterday, which was on Monday. Unfortunately she did not speak to Mr Steenkamp, she was informed by some person whom I don't know, that she should come on Wednesday. When I came here yesterday in the afternoon, I was told that she has already left, someone has told her to come on Wednesday. I tried to contact her by the telephone number supplied to me, she is not known at that address.
We have been trying this morning to call Cape Town, so they can confirm her physical address, so that someone may go and fetch her. That is the reason why she is not here, Chairperson.
If I may also point out there is a matter if Chairperson recalls that was before the Committee last Thursday, the Swaziland incident, the victims were not here too, only one came. I learnt yesterday that the reason they did not come was due to miscommunication, because one of the victims came here yesterday, which is the date which the victims had been supplied with.
I am asking an indulgence in the interest of the victims, Chairperson, because it would appear that victims are not kept up to date regarding the arrangements. They are given a date, when they come on that date, they learn that their matters have already been heard. Thank you Chairperson.
CHAIRPERSON: When were you briefed on this matter?
MS MAKHUBELE: I was briefed last week, I have my documents if I ...
CHAIRPERSON: Can't you tell us, Monday, Tuesday, Wednesday or whatever?
MS MAKHUBELE: I cannot recall but I think it is a day before the pre-hearing. The pre-hearing was on Friday, I was briefed a day before, it was on Thursday.
CHAIRPERSON: The week before last, on the Thursday?
MS MAKHUBELE: I was briefed a day before the pre-hearing.
CHAIRPERSON: In a matter that was supposed to start today?
MS MAKHUBELE: Yesterday, the 14th, yes.
CHAIRPERSON: Is there any particular reason why you are not able to communicate with your client?
MS MAKHUBELE: As I indicated, in the matter that appeared last thursday, I was only informed that Thursday morning, that the matter is coming before the Committee. I think Mr Steenkamp called me at about half past eight, and said the matter is proceeding at half past nine. I came here and that is when I met the lady who was from Swaziland.
I didn't have time to contact the other victims, because they knew that the matter was coming yesterday.
CHAIRPERSON: ... it would have been the first time you would have met this victim, yesterday. If no one told her that the matter is coming on Wednesday, starting on Wednesday, would it have been the first time that you met this victim, yesterday?
MS MAKHUBELE: No Chairperson.
CHAIRPERSON: Have you met her before, Mrs Naledi or whatever her name is, that is not present today, who was told yesterday that the matter is only starting on Wednesday? When did, have you ever met her?
MS MAKHUBELE: I haven't met her, I had intended to consult with her, that is why I say the telephone number that was supplied to me, whenever I called, it was, they said they didn't know her. I was relying on her coming here, because I knew that during the course of this week, she would come here, that is the reason I came here yesterday to consult with her, only to be told that she had already left and she was told to come on Wednesday.
CHAIRPERSON: Mr Steenkamp, who told her that?
ADV STEENKAMP: I am not sure Mr Chairman. I am not sure who told her that, we have endeavoured this morning to see if we can find Mrs Naledi to proceed.
CHAIRPERSON: I am not asking about that, what has been done, I am asking who told her?
ADV STEENKAMP: I have no idea, Mr Chairman.
CHAIRPERSON: ... starting tomorrow?
MS MAKHUBELE: Yesterday in the afternoon.
CHAIRPERSON: And who told you that that was stated to her?
MS MAKHUBELE: I don't know his name. If I can ...
CHAIRPERSON: See him? So you haven't consulted with her at all?
MS MAKHUBELE: No, I haven't.
CHAIRPERSON: So you don't know if the matter is being opposed or not?
MS MAKHUBELE: I don't know, but I have read the transcript and her submissions to the Committee, to the Human Rights Violations Committee on a previous occasion and ...
CHAIRPERSON: Mr Steenkamp, is there any other matter that we can start with?
ADV STEENKAMP: Mr Chairman, we can start immediately with the arms cache, the so-called Krugersdorp arms cache.
CHAIRPERSON: Who are the representatives in that matter?
ADV STEENKAMP: Mr Wagner and Mr Visser.
CHAIRPERSON: ...(indistinct)
MR VISSER: Yes Mr Chairman, we can continue with that. I just want to place on record, that we never said that Mr Loots is not going to be available tomorrow. This was what was agreed yesterday in your chambers, that is it.
CHAIRPERSON: And none of us were told about this kind of problem?
MR VISSER: ...(indistinct) but we will continue with the Krugersdorp case.
CHAIRPERSON: Before we carry on, we can continue the Krugersdorp matter, what is the position with Mrs Naledi now? What are we going to do?
ADV STEENKAMP: Mr Chairman, I can maybe just speak, what I have discussed with my colleague, Adv Makhubele, that is if you look at the Bundle, there was testimony led by the mother of the late deceased, there is also a copy of the inquest record.
CHAIRPERSON: Well, that does not help us Mr Steenkamp, what are we doing to ensure that she is present? That is her right to be present?
ADV STEENKAMP: Mr Chairman, we have already contacted Cape Town in order to find the correct telephone number. I have also asked our witness protection people to find out and clear out the address and if possible, to go out and pick up Mrs Naledi, apparently she is staying somewhere in Soweto. We have already done that.
Our people is already busy doing that. Just for the record, I may just place on record then, the indication I had with Adv Makhubele was that we can proceed with this matter, and if necessary, of course all the submissions by the victim is already in the record, and she indicated to me that she had no difficulty. That is the best I can do.
CHAIRPERSON: I think she has a right to come here, straight forward, for herself. In the previous matter, the victim chose to be somewhere else and it is our indulgence that is allowing him to make submissions if he so needs to or wants to.
In this case, this lady's rights were affected, not through her own fault. That is the important issue, we must respect her rights. How is the Advocate representing her, going to be able to conduct the matter if she hasn't consulted with her?
ADV STEENKAMP: Mr Chairman, I can only, because as far as I remember, Adv Makhubele was appointed a long time back, the notice of the pre-trial was also faxed to her office. I am in the hands of the legal representatives, Mr Chairman, and over and above that, I would gladly do whatever is necessary to make sure the victim is here. I have cleared this up with her as well. That is the best I can do.
CHAIRPERSON: Whatever the case is, the lady's rights have not been complied with, she is not being assisted with exercising her rights, we need to do everything today to see to it that we put her in a position where she can exercise her rights, even if to tell us that she is not interested in the proceedings.
We cannot proceed on that matter, before we have done that.
ADV STEENKAMP: Sure, Mr Chairman.
CHAIRPERSON: I want to be kept updated about the progress in respect of locating Mrs Naledi today. That is not a request.
MR KOOPEDI: Chairperson, may I be excused?
CHAIRPERSON: Yes.
MR KOOPEDI: Thank you Chairperson.
CHAIRPERSON: I don't know who are more frustrated, me or you?
MS MAKHUBELE: Chairperson, I will be waiting here until I am wanted.
CHAIRPERSON: Are you not involved in any other applications Adv Makhubele?
MS MAKHUBELE: No.
CHAIRPERSON: Only that one?
MS MAKHUBELE: Only that one.
CHAIRPERSON: Yes, Mr Visser?
MR VISSER: Chairperson, the application now before you is the one of an arms cache that was created in Krugersdorp in March 1988. Please allow me a few remarks before we continue. Chairperson, you will hear certain differences of opinion as to relevant facts which occurred at the time.
We have attempted to find out what the true position is, without much success, so we are going to present that evidence to you as it is, for you to decide. There appears to be some misunderstandings in regard to this arms cache and one of them is that it is sometimes attached to the incident of the raid into Botswana in 1985.
CHAIRPERSON: ...(indistinct)
MR VISSER: No, that is one that you are going to deal with in future, I think in two weeks' time or so, that is a 1985 one, and it becomes very confusing. I don't want to spend too much time on it, but you will see that in your Bundle, at page 76, no, not 76, it is not in this Bundle. In fact it is in the 1985 Raid Bundle, I don't want to take up too much time. But he there refers to an attack on a house of representatives in Cape Town, which he says gave rise to the attack.
That is taken up by Mr Stiff in his book, the Silent War, and I just want to ...
CHAIRPERSON: Mr Who? Mr Who?
MR VISSER: Mr Peter Stiff, I referred you to this book before. The only point about this is, I just want to warn you Chairperson, this arms cache had nothing to do with the 1985 raid, because this was in 1988 and there seems to be a huge amount of confusion about that.
CHAIRPERSON: Is that what you are going to attempt to show?
MR VISSER: No, we are just telling you this, because the evidence will be that this was in 1988 and obviously the 1985 raid could, this could never have had anything to do with that.
CHAIRPERSON: You are saying this arms cache was established in 1988 and any thought that it was related to a planned attack in 1985, cannot be chronologically correct?
MR VISSER: That is the first point. Then Chairperson, for what it is worth, this attack was planned and executed, there was a raid into Botswana in 1988, Mr de Kock in his amnesty application, and I am sure he will testify to that as well, stated that it was an air raid, and that is according to our recollection, the correct facts.
We have attempted, my Attorney has attempted through the University of the Orange Free State to obtain press clippings of that time because that was our recollection. Unfortunately their computers have been down for the last week and a half, week or week and a half, week, and he was not able, so that we could actually give you the evidence of what had happened. The point about that, Chairperson, is that this arms cache was not the reason, was not created to be a reason for an attack on Mr Naledi in Botswana, because you will observe that that incident took place on the 28th of March and Mr de Kock in his amnesty application says that there was an air raid into Botswana after the discovery of this cache, and he places that date on the 28th of March.
What we are trying to say is there is already a lot of confusion about this incident, but as far as we could ascertain, the arms cache had nothing to do with Mr Naledi, it had to do with an excuse for a full scale raid, and it was an air raid into Botswana. Incidentally, in that raid, nobody was killed. So we know that it wasn't Mr Naledi because there four people were killed.
CHAIRPERSON: Mr Visser, I don't know if you are able to answer the question I am going to ask. If the establishment of this cache was related to a subsequent air raid, were there any deaths occurring or gross human right violations in that air raid?
MR VISSER: No, none, nobody was killed. There may have been people injured.
CHAIRPERSON: ...(indistinct)
MR VISSER: That we don't know. As I say we attempted ...
CHAIRPERSON: Well certainly I think according to the Act, an attempt to kill is regarded as a human right violation.
MR VISSER: An attempt at any of the human right violations, in terms of the definition in Section 1.
CHAIRPERSON: ...(indistinct) air raid must have been committed with the intention of killing people, I would imagine?
Okay, fine, I am just trying to get this thing into perspective, before any more confusion occurs.
MR VISSER: I am afraid that you are going to hear confusing evidence in this matter.
CHAIRPERSON: Where will this confusion come from, the applicants or from where?
MR VISSER: Well Chairperson, the applicants don't all remember this matter the same. There are some differences as to where they were, did they go to Cape Town, who okayed the mission, etc, etc. We are going to say to you now Chairperson, that it really is detail. As far as the relevant material facts are concerned, there is no disputes, but there are confusion on the fringes regarding where this fits in, what raid was it that this was supposed to be the excuse for, and what were the targets that were really targeted in Botswana. I just mention them Chairperson, to attempt to avoid you being confused when you hear some of the witnesses give evidence about this.
But I again say that it is not relevant really to the material issues of the amnesty applications, what is relevant here is that there was a decision to create the arms cache, it was created and the press were told. The evidence is going to be as simple as that, but there is going to be some evidence as to people going down to Cape Town and getting authorisation and from whom it was given, etc.
CHAIRPERSON: Are they going to testify that they knew that this arms cache was being established with the view of that air raid?
MR VISSER: Absolutely yes, there was going to be a raid, and this was to be the excuse, yes. All of them will say that. Thank you Chairperson, Mr Schoon is the logical point to start.
