Amnesty Hearings

CHAIRPERSON: Returning to what has been referred to as the De Kock 5 Hearing, the Committee remains the same. There has been one change as far as I know in representation. Would you please place yourself on record?

MR ROUX: As it pleases you, Chairperson. My name is Jaco Roux, I'm from the Pretoria. On instruction from Strydom Britz on behalf of Mr Labuschagne, I replace Mr Roelof du Plessis.

CHAIRPERSON: Thank you. Are there any matters which any parties wish to raise before the hearing commences?

MR ROSSOUW: Thank you Chairperson, Rossouw on record. Chairperson, I represent applicant, Douw Willemse. Chairperson, Willemse you will recall at the first or the second day of when this hearing started, I made an application that his application be postponed as partly heard, adjourned as partly heard. Mr Willemse had a relapse, he is suffering from post-traumatic stress disorder. Chairperson, in view of this hearing, he again consulted his psychologist and I was provided with a letter from the psychologist in which he expresses the opinion that Mr Willemse would relapse again and that it could be life threatening, Chairperson, and that he recommended that Mr Willemse not be subjected to cross-examining. Sorry, Chairperson, psychiatrist - a Dr van der Merwe provided me with the letter. Chairperson, I've made copies of that letter available to all representatives around the table as well as the Committee and Chairperson, I would at this stage repeat the application I made at the previous hearing that Mr Willemse's application be adjourned again as partly heard and that it be dealt with after all the facts have been placed on record and that the Committee can make a finding on those facts.

Chairperson, as I have stated previously, there is a precedent for this application in the form of Brig Cronje who suffered a heart attack and in some of the applications, Chairperson, his application was adjourned and findings were made even though he did not testify. I don't know, Chairperson, if there are any objections to that application?

CHAIRPERSON: How far did we get with Willemse's evidence if at all?

MR ROSSOUW: Chairperson, he didn't testify.

CHAIRPERSON: He didn't give evidence, no. Subject - I would like to hear the opinions of the representatives of the other applicants and of the victims and interested parties. From the papers - only for myself, do not anticipate any great divergence in Mr Willemse's evidence and the other evidence we've heard and it appeared to me that if he were to put up a very brief affidavit, that it would not be necessary for him to give evidence unless for some reason or another any other parties feel there is need for that and would you like to express an opinion now or would you like to think about it?

MR HATTINGH: From our point of view, Chairperson, there is no need for Mr Willemse to actually testify.

MR ROUX: As it pleases you Chairperson, from our opinion we accept the request of Mr Rossouw and we do not have any problem with it if his application is done or dealt with by means of an affidavit.

MS VAN DER WALT: Chairperson, I also have no objection and I'm of the opinion that if Mr van Dyk has given his evidence then he would be able to confirm Mr Willemse's application because they were together.

MR LAMEY: Just for the record, Lamey representing Mr Fourie, I've got no objection to the application.

MR PRINSLOO: Chairperson, Prinsloo on behalf of Deetlefs and Pienaar, I have no objection and I share the opinion of my colleagues.

MR RAMAWELE: Chairperson, on behalf of A Nofomela, I do not have any objection although I have to put it on record that Mr Nofomela will however say that he was not with Mr van Wyk and Mr Willemse at the same point. He will either say that he was with Willemse and Badenhorst but we don't have any objection in Mr Willemse giving evidence by way of an affidavit. Thank you.

MR NTHAI: Yes, Chairperson, I will accept an affidavit but we will reserve our right in terms of having looked at the affidavit to call for cross-examination if needs arise.

MS COLERIDGE: Chairperson, just in relation to the letter that we have received, I just want to make a request to the legal representatives of Mr Willemse to furnish us with a copy of psycho-analysis report and the tests that were used on Mr Willemse in support of the findings hereof, Chairperson.

MR ROSSOUW: Chairperson, I'll make the necessary enquiries in order to attempt to obtain the test results and place it before the Committee.

Chairperson, one aspect that I should just mention as far as Mr Willemse is concerned. He was here the first day of the hearing and it was after he heard Mr de Kock's evidence and you remember that I was specifically instructed to place on record that he is in agreement with Mr de Kock's version that the instruction was - final instruction was to eliminate all the people. Chairperson, that's on record but for that aspect an affidavit can also be obtained from him. That's not contained in his affidavit in the bundle.

CHAIRPERSON: Well if it's on record I think that's sufficient and I must say again speaking only for myself, I'm not speaking on behalf of my Committee in this. We have had evidence from various of the applicants that they were engaged in other actions that they may be confused when they say that A or B was with them, it may have been at some other time and it could have been B or C who was with them and I don't think that that sort of differences are going to play any great part in the findings of the Committee in this regard. So I think it's not necessary subject again to what you might say, if he prepares an affidavit for him to deal in detail with the evidence of all the other applicants who have already given evidence if he merely sets out briefly what he himself can remember. Do you agree?

MS COLERIDGE: In order, Chairperson. Shall we call this an Exhibit, Chairperson?

CHAIRPERSON: Well I'm trying to think what number it is.

MS COLERIDGE: The last was H, Chairperson. The last Exhibit was H.

CHAIRPERSON: H, so this will be J.

MS COLERIDGE: Thank you, Chairperson.

CHAIRPERSON: While we're talking about exhibits, I find an interesting sketch map lying in front of me which presumably we're going to be told about shortly. Should we call that K?

MS COLERIDGE: Thank you Chairperson.

MS VAN DER WALT: Thank you, Chairperson, that's the next applicant's evidence.

CHAIRPERSON: Right, are we ready to proceed?

MS VAN DER WALT: The following applicant who will be called is Mr van Dyk.

PAUL J VAN DYK: (sworn states)

EXAMINATION BY MS VAN DER WALT: Thank you Chairperson. Mr van Dyk ...(intervention)

CHAIRPERSON: Go on. Is it possible to turn that right hand light further up or further away from me please? Thank you.

MS VAN DER WALT: Your amnesty application, Mr van Dyk, is in bundle 1, the formal application page 212 to 214. The incident for which you apply for amnesty today appears on page 215 to 218 and the political motivation from page 219 to 226, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: You have also heard the evidence of the other applicants who have given evidence in this incident. I would like to take you to the incident as it appears on page 216, paragraph 2, where you make mention that certain arrangements were made with an informant who would take the persons crossing the border to a certain point. Do you recall that part?

MR VAN DYK: Yes, I recall that incident.

MS VAN DER WALT: And do you know what was the arrangement with the informer?

MR VAN DYK: Chairperson, according to my knowledge, as I recall it today, I myself did not deal with the informer. It was Mr Pienaar and Mr de Kock who spoke to the informer most of the time at that stage. They only informed me at the end that I had to go to a certain point close to the Nerston /Amsterdam /Lother crossing or junction where we had to set up an ambush in order to arrest or eliminate certain people who would come through.

MS VAN DER WALT: What was the instruction before you departed, that the persons would come in with a bakkie had to be arrested or they had to be shot dead?

MR VAN DYK: Chairperson, my instruction ...(intervention)

MS VAN DER WALT: No, I mean you were at another point but do you know what had to happen with the persons who came in the van?

MR VAN DYK: The discussions, I would not say that I was present at any meeting or any great discussion but what I did infer or from what was informed or mentioned to me was that all the persons in the van or in the bakkie would be eliminated at a certain point.

MS VAN DER WALT: You mention in paragraph 2 that the arrangement was made with the informer that the person, the informer, would drive the bakkie up to a certain point where he would stop the bakkie and then they would attempt to arrest these persons. Do you know about that, that this was told to the informer?

MR VAN DYK: Yes, this was mentioned to me but this was only meant for the informer. They couldn't tell the informer that they would eliminate the persons, they told him that they would arrest the persons but that was meant for the ears of the informer.

MS VAN DER WALT: And paragraph 3 you mentioned that you were divided into three groups. Which group were you with?

MR VAN DYK: I might just say that the three groups, my group at the Nerston/Amsterdam junction.

MS VAN DER WALT: That is Exhibit K that you signed or which you drew up to assist the Committee?

MR VAN DYK: That is correct, Chairperson. There the group was divided into two because the old road joined the - had a junction with the Nerston/Amsterdam Road.

MS VAN DER WALT: You refer now to the Exhibit K that you drew up and you indicated north. If we can take it north,

the top of the document, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: And then the East will be on the right and then Nerston's border post would be in the Eastern side of Exhibit K. Then it is the Nerston/Lother Road and then the Amsterdam Road makes a T-junction with the Nerston/Lother Road. Now this road that you have referred to, you speak of the old road. Is that to the right hand side of the T-junction where it cuts through the angle?

MR VAN DYK: Yes, that is the old gravel road before the road was tarred that went through there.

MS VAN DER WALT: Very well, you said there were three groups, there were two groups at that point, is that what you mean?

MR VAN DYK: As I have said, Badenhorst and Mogadi was at one point, that was more to the Nerston border post side, it was not very far, it was a matter of 30 - 50 metres away from each other.

MS VAN DER WALT: And where were you?

MR VAN DYK: I was on the corner of the Amsterdam junction.

MS VAN DER WALT: You indicated there Van Dyk, Willemse and Mr Nofomela who were at that point?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: What were your instructions, what did you have to do there?

MR VAN DYK: The initial instruction was, we suspected as the information led that we received that persons who would bring persons through are usually local people because he knows the area quite well, he will take the persons to a certain point and then he returns to Swaziland and information was also that Nox Dlamini would be waiting in a vehicle on the Swaziland side and we had to attempt, the person would bring the insurgents through, we had to catch him and then he had to point out the vehicle in Swaziland to us where we would also try to eliminate those people.

MS VAN DER WALT: You also made mention in paragraph 3 that the persons who would cross the border, you would arrest them, is that correct?

MR VAN DYK: Yes, the arrest - if there were no other people involved then it was chiefly the person who would bring these insurgents through, he just accompanies them through. The information that we had was that it was not a trained person, he was not armed, he would only bring the people through but he knew where the person on the other side was waiting and you wanted him to take him to the vehicle where the other person was?

MR VAN DYK: That is correct.

MS VAN DER WALT: What would you do at the other point?

MR VAN DYK: There, Chairperson, we would try to eliminate persons in the vehicle.

MS VAN DER WALT: So you would have killed them right there?

MR VAN DYK: That is correct.

MS VAN DER WALT: What happened on this particular evening? You went to this point?

MR VAN DYK: Chairperson, we held observations at this point and as far as I can recall, it was approximately 9 o'clock in the evening when these four persons moved past. The bakkie turned down the Amsterdam Road. I am not certain whether the bakkie arrived there before them or after them but when the bakkie arrived there, according to my information and as far as I can recall, the bakkie was there first. No, they were first then the bakkie came afterwards.

MS VAN DER WALT: When you refer to "them"?

MR VAN DYK: The four persons who came through from Swaziland.

MS VAN DER WALT: Very well.

MR VAN DYK: And the bakkie stopped approximately 100 metres from us. We switched off the headlights but the parking lights were still on and as there was some movement at the back of the vehicle, because they were moving past the tail lights of the car, the vehicle then moved away and we saw some persons coming back. There were two persons who were coming back. I would say approximately two or three metres away from us at the point where we were - that is now Willemse, Nofomela and I. We had a torch and we shone it on them and I noticed that the one person had a firearm over his shoulder.

MS VAN DER WALT: Continue please?

MR VAN DYK: Shots were fired to and fro, one person fell and the other person ran away.

MS VAN DER WALT: If I could just refer you to Exhibit K? You indicated a vehicle turning into the Amsterdam Road, that is there next to the or on the old road that you drew there. Is that the point where you saw the vehicle?

MR VAN DYK: Yes, that's where it was standing.

MS VAN DER WALT: And the vehicle came from which direction?

MR VAN DYK: From Lother.

MS VAN DER WALT: And the persons walking?

MR VAN DYK: They came in from Nerston side.

MS VAN DER WALT: And you say the one person escaped? Do you know who was the person who escaped?

MR VAN DYK: The man who escaped was Mr Sindane.

MS VAN DER WALT: And the other person was killed?

MR VAN DYK: Yes that is correct.

MS VAN DER WALT: Very well and you have knowledge that the other persons further along the Amsterdam Road had set up an ambush for these persons, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: Did you later contact these persons?

MR VAN DYK: I'm not certain whether he had his vehicle there with a radio or whether there was just a vehicle hidden in the bush. I cannot recall whether I drove to them or whether I contacted them by radio but I did inform them.

MS VAN DER WALT: And what happened to the person whom you killed there?

MR VAN DYK: He ran across the Amsterdam Road over the Lother Road and there were trees that were cut down there, they were laying in lanes. He went through there and we couldn't find him that night.

MS VAN DER WALT: But the person who was killed?

MR VAN DYK: Oh, the person who was killed. Mr Botha picked him up.

MS VAN DER WALT: That is the applicant who still has to give evidence?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And then did you later return to where the other persons were who had shot the persons in the bakkie?

MR VAN DYK: Yes, I'm not sure to which point we went to, I did go back to the point where the person was shot with the bakkie but from there, as far as I know, I went back to Piet Retief or to Amsterdam, I'm not sure.

MS VAN DER WALT: So you have knowledge that persons were killed at the bakkie?

MR VAN DYK: Yes I do know.

MS VAN DER WALT: And at that stage under whose command did you serve?

MR VAN DYK: Under Col. de Kock.

MS VAN DER WALT: And where were you stationed?

MR VAN DYK: Security Head Office Pretoria and Vlakplaas.

MS VAN DER WALT: And the instructions to eliminate the persons, where did you get this instruction?

MR VAN DYK: This came from Col. de Kock.

MS VAN DER WALT: There was a post-mortem inquest where certain statements were taken by Mr Pienaar. You also made a statement there and that is in the bundle, bundle 2, pages 15 and 16, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: You have gone through the statement and there are certain aspects that you would like to point out to the Committee, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: Paragraph 3, you make mention of Sgt Badenhorst who took up position along with you, what do you say about that?

MR VAN DYK: Chairperson, at this stage, this is the stage that Mr Nofomela picked up problems.

MS VAN DER WALT: You see you mention here that Badenhorst and Willemse took up position next to the tar road while Nofomela and Mogadi took up position, what do you say about that today?

MR VAN DYK: What I would like to explain that at this stage Mr Nofomela picked up those problems for which he is still incarcerated and I tried to take him out of the picture so that he should not give evidence in this incident and I placed him at another point.

MS VAN DER WALT: Where there was no shooting?

MR VAN DYK: Yes, where there was no shooting.

MS VAN DER WALT: And paragraph 10, on page 16, is that paragraph correct or not?

MR VAN DYK: As far as I can recall Chairperson.

MS VAN DER WALT: You mention that you'd said that - told the person that there was a policeman?

MR VAN DYK: That is correct, Chairperson. That is not how I put it, there was no talking so I did not tell the persons we were police officers, they had to stand still. We saw this person who was armed and then we fired shots. We didn't ask questions and nothing was said.

MS VAN DER WALT: So what you were saying there is a lie?

MR VAN DYK: Yes, that is not correct.

MS VAN DER WALT: And the rest of the paragraph you don't have a problem or the rest of the statement?

MR VAN DYK: That is correct, there's nothing further that I can see.

MS VAN DER WALT: You then apply before this Honourable Committee for amnesty with regard to the murder, the person that you shot as well as conspiracy to murder to kill the other persons who were in the van?

MR VAN DYK: That is correct.

MS VAN DER WALT: And the attempted murder of Mr Sindane?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And defeating the ends of justice?

MR VAN DYK: That is correct.

MS VAN DER WALT: And perjury because you made the statement under oath?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And any other offence which might flow from your actions there at the incident?

MR VAN DYK: That is correct.

MS VAN DER WALT: As well as any delictual accountability?

MR VAN DYK: That is correct.

MS VAN DER WALT: Thank you, Chairperson.

NO FURTHER QUESTIONS BY MS VAN DER WALT

MR HATTINGH: Hattingh on record, Chairperson, I have no questions, thank you.

NO QUESTIONS BY MR HATTINGH

CROSS-EXAMINATION BY MR RAMAWELE: Thank you Chairperson, it's A Ramawele for Mr Nofomela. I just have a few questions.

Mr van Dyk, you say that you were with Mr Nofomela at the corner of - at the T-junction - the corner of Lother and Nerston, at the T-junction of Amsterdam?

MR VAN DYK: That is correct, Chairperson.

MR RAMAWELE: And where was Mogadi?

MR VAN DYK: Mogadi was as I have said approximately 30 - 50 metres away from there.

MR RAMAWELE: Mr Nofomela will say that you were with Mogadi more nearer to the Nerston border gate, you were only two?

MR VAN DYK: No, I was at the Amsterdam T-junction along with Willemse and Nofomela.

MR RAMAWELE: And Mr Nofomela will further say that he was with Mr Willemse, Mr Badenhorst at the Amsterdam T-junction.

MR VAN DYK: If he says so, I will not argue with him but I was with Willemse and Nofomela at the T-junction. MR RAMAWELE: Are you saying that you're not going to dispute that, that it could be true that he was at that particular T-junction?

MR VAN DYK: Please repeat that question?

MR RAMAWELE: Are you saying that if you are not going to dispute what Mr Nofomela is going to say as to with whom he was at the T-junction, are you saying that it could be true? What do you say? Mr Nofomela?

MR VAN DYK: No, all that I'm saying is that I was with Nofomela at the T-junction. If he says I was somewhere else I differ from him but I cannot place words in his mouth.

MR RAMAWELE: And you are saying at the time when you were waiting at the T-junction the instruction was that people coming from Amsterdam towards going back to Nerston border gate were supposed to be arrested?

MR VAN DYK: That is correct, Chairperson. If there were no problems we would try to apprehend the man and take him over to Swaziland.

MR RAMAWELE: Because Mr Nofomela will say that there were no shots which were fired by any of the people who were going back to the Nerston border gate?

MR VAN DYK: That is not how I recall it.

MR RAMAWELE: If you will further say there were no instructions to arrest or catch them, the instruction was to eliminate them?

MR VAN DYK: That is not how I recall it.

MR RAMAWELE: And he will further say, Mr Nofomela, that before the shooting occurred there was no torch which was used, it was only used after the other one had escaped?

MR VAN DYK: Please repeat that question?

MR RAMAWELE: He would say that there was no torch which was used before the shooting, it was only used after the shooting when one of the people who were going back had escaped.

MR VAN DYK: No Chairperson, I cannot recall who all had flash lights but a light was shone there and that is how I saw that the man was armed and that is where the shooting ensued and afterwards no light was used.

MR RAMAWELE: Mr Nofomela will further say that there was absolutely no attempt which was made to arrest the people who were going back?

MR VAN DYK: Yes, I saw the persons were armed and we didn't take any chances, not with a person who had a firearm in his hand.

MR LAX: Can I just clarify something? You've just said the people were armed. Were they both armed?

MR VAN DYK: Only the one person, Mr Sindane, was armed.

MR LAX: Please continue?

MR RAMAWELE: I've got no further questions, thank you.

NO FURTHER QUESTIONS BY MR RAMAWELE

CROSS-EXAMINATION BY MR LAMEY: Thank you Chairperson, just one or two questions.

Mr van Dyk, you did not actually expect that a person like Mr Sindane would go back with a firearm, do I understand you correctly? You would have tried to arrest him if there was a possibility?

MR VAN DYK: That is correct, Chairperson. Usually the guide would take the persons through, he was not armed and then go back again but in this case Mr Sindane was there and he was armed. It went different then what we planned.

MR LAMEY: So it went different when he returned and he had a firearm?

MR VAN DYK: That is correct, Chairperson.

MR LAMEY: And you were in command on the scene or at the scene?

MR VAN DYK: That is correct.

MR LAMEY: And you could exercise your discretion with regard to the instruction from De Kock where there was a potentially dangerous situation to act according to what you thought was best?

MR VAN DYK: That is correct.

MR LAMEY: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR LAMEY

CROSS-EXAMINATION BY MR ROSSOUW: Thank you Chairperson.

Mr van Dyk, I would just like to take you through Mr Willemse's version and it would appear that you primarily agree but the one aspect what I would like to take up with you is that Mr Willemse said that the two persons who returned, it was said to the two persons who returned to stand still and you say no words were exchanged at all?

MR VAN DYK: Chairperson, this thing about the words that we would have told the people "we are the Police, stand still" that was not so, I can answer to that honestly. No words were uttered there.

MR ROSSOUW: So Mr Willemse is mistaken?

MR VAN DYK: Yes, I think he is mistaken. This comes from beforehand when with the post-mortem inquest we decided that we would say that we warned these persons to add more credibility to the post-mortem inquest but it was not so. We did not utter any words.

MR ROSSOUW: And Mr Willemse also made a statement in the post-mortem inquest and you said that you decided upon this. Was he part of this decision, this discussion?

MR VAN DYK: Yes he was.

MR ROSSOUW: Then I would just like to ask you, Mr Willemse says that he heard that a firearm was cocked by one of the persons who returned. Do you have such recollection?

MR VAN DYK: I cannot recall. It is possible but as I have said it happened so quickly, the lights were switched on and it's possible but I cannot recall that it happened.

MR ROSSOUW: And you have said now, did I understand you correctly that you shot the person? The person who was killed there, did you shoot him or did Mr Willemse shoot?

MR VAN DYK: No, we all fired shots. I cannot say whether I shot him or Nofomela shot him or Willemse shot him. All three of us fired shots, so all three of us could be responsible.

MR ROSSOUW: Very well and then with regard to the instruction you would have noted that Mr Willemse in his statement said that the plan was to abduct the person who returned and then he had to point out where he came through the fence and you say it went further. He had to go and point out the bakkie on the other side of the border?

MR VAN DYK: Yes, there was vehicle on the other side of the border who brought the people to the border and it would take the guide back. He had to go and report back in Mabana or Manzini.

MR ROSSOUW: So there was talk or consideration of arresting the person who would return?

MR VAN DYK: That is correct, Chairperson.

MR ROSSOUW: And then the final plan would be to eliminate that person along with the occupant of the bakkie on the other side of the border?

MR VAN DYK: That is correct.

MR ROSSOUW: So the final plan would be, as Mr de Kock had testified that everyone would eventually be killed?

MR VAN DYK: Yes, everyone would have been killed.

MR ROSSOUW: Mr van Dyk, what was your rank at that stage at Vlakplaas?

MR VAN DYK: I would imagine I was a lieutenant at that stage.

MR ROSSOUW: So you were senior to Mr Willemse?

MR VAN DYK: That is correct.

MR ROSSOUW: He was a sergeant at that stage?

MR VAN DYK: That is correct.

MR ROSSOUW: So you were in command there at the scene?

MR VAN DYK: Yes.

MR ROSSOUW: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR PRINSLOO: Mr Prinsloo. I have no questions, thank you Chairperson.

NO QUESTIONS BY MR PRINSLOO

MR ROUX: Mr Roux, I have no questions, thank you.

NO QUESTIONS BY MR ROUX

CROSS-EXAMINATION BY MR NTHAI: The information that there would be people coming on that day, these ANC fighters, who gave that information?

MR VAN DYK: I received the information from Messrs Pienaar and De Kock.

MR NTHAI: Did they tell you where they got the information from?

MR VAN DYK: From an informant that was known to Mr Pienaar.

MR NTHAI: Was this information given to you at a meeting?

MR VAN DYK: No, not at all. It was just personally conveyed to me but there was no meeting.

MR NTHAI: Who conveyed that to you?

MR VAN DYK: Mr de Kock.

MR NTHAI: Is that at the same time when he gave you the order to go to the other side?

MR VAN DYK: Before that it was discussed already the information. I think we were there for another incident other than this one and I knew that an operation would be launched here, I just did not know exactly when it would happen, I was not sure, but Mr de Kock informed me but I cannot give you a specific time.

MR NTHAI: No, no. So you were not present when the discussion about the operation took place?

MR VAN DYK: I do not know of any discussion that had taken place. The discussion was most of the time between Mr de Kock and Mr Pienaar. I did not attend any big meeting but they told me that a decision was taken here and here and it was just told to me the afternoon and the evening of the incident that we would set up the ambush and that was that. They did not tell me long before the time but that there was information that persons would come through, I knew that a day or two before the time.

MR NTHAI: And then when you were given this information, were you given the details of who are the people who are going to come out and how many people were going to come?

MR VAN DYK: They only told me that persons would come through from Swaziland through the Nerston post and that this man would transport them.

MR NTHAI: And what was your order from Mr de Kock, what did he tell you?

MR VAN DYK: I had to go to the Nerston border post or the Amsterdam/Lother junction and set up an ambush there for the persons who would come in and then those who returned, I had to try and arrest them so that we could go back to Swaziland to find Mr Dlamini so that we could eliminate him.

MR NTHAI: When you say you set up an ambush, what do you mean?

MR VAN DYK: Please repeat that?

MR NTHAI: When you say you set up an ambush, you were told to go and set up an ambush, what did you understand?

MR VAN DYK: Yes, my instruction was to arrest first and then I would eliminate them so the ambush was duel. If things did not go right I would take a decision at the point.

MR NTHAI: No, Mr Dyk, I just want to understand what Mr de Kock told you. Did he tell you to go and ambush this person, did he tell you to go and arrest this person?

MR VAN DYK: I just said, Chairperson, my instruction was as I have said, I had to see whether the guide - if the guide was not armed we would abduct him or kidnap him or arrest him, whatever you want to call it. We would go to Swaziland and eliminate those people there but at the point there I would decide if things went wrong, I would decide what to do and the actual purpose of the whole operation as Mr de Kock put it, everybody had to be eliminated. Let's say the person that I found there at the Amsterdam junction and take that person to Swaziland to point out the bakkie and the persons there, they would all be eliminated. So it was a duel purpose.

MR NTHAI: So are you saying that Mr de Kock did tell you that you must arrest this person who was returning, is that what he told you?

MR VAN DYK: If it was possible but eventually he would also be eliminated.

MR NTHAI: Because you see, Mr de Kock was very clear that the order was to eliminate these people, there was no question of arresting anybody?

MR VAN DYK: Yes, eventually everybody would be eliminated. My instruction was why would there be two points, Chairperson.

MR LAX: Sorry, just explain for me, what is the relevance of there being two points? What's that got to do with your answer?

MR VAN DYK: Chairperson, what I mean by that is if we had to set up an ambush for these persons, we could have done it at one point and eliminate the persons there instead of having two points. The second points purpose was to find the man who returned so that he could point out the vehicle on the Swaziland side and then they would be eliminated but eventually Mr de Kock said everyone had to be eliminated, that's correct. The primary purpose was that he had to serve his purpose and then he would also be eliminated.

MR LAX: What you say doesn't make sense at all. For this reason, that - just listen to me. De Kock's already told us that the information, in the arrangement with the driver was that they would stop the vehicle at a certain place. You weren't part of the planning? So why are you drawing your own conclusions? You were simply told to go and put an ambush there. You've told us that twice already in your evidence. Once in evidence in chief and twice under cross-examination. Your precise words were "I was ordered to set up an ambush", correct?

MR VAN DYK: That is correct.

MR LAX: Well an ambush is not to arrest people, an ambush is to kill people? You set up and you lie and wait and you open fire when they pass you? Isn't that an ambush?

MR VAN DYK: Chairperson, I said a trap, not an ambush because a trap can mean anything, we can have a diamond trap where you can catch people smuggling diamonds, we can trap people to kill persons, a trap can mean many things and an ambush, I don't know what the Afrikaans word - that only means in English that you will just kill.

CHAIRPERSON: Mr van Dyk, as I understand your evidence, you were not to take part in the ambush where the people in the bakkie were killed?

MR VAN DYK: No, Chairperson, I was far from there.

CHAIRPERSON: You were to take into custody the people coming back to try to find, if you could, information from them where the other bakkie was parked and then to go there and kill all of them?

MR VAN DYK: That is correct, Chairperson. Where I was lying the bakkie picked up the persons and left and I would say approximately five or six kilometres where Mr de Kock was lying in wait. I apologise for not being clear there.

MR NTHAI: So there was a discussion between you and Mr de Kock on how the - what you call a trap - was going to be set up?

MR VAN DYK: That is correct, Chairperson, that was normal, he was in command. We discussed it.

MR NTHAI: And the order from him was that you must go and set up a trap and later on you must go and kill those people, is that what he said to you?

MR VAN DYK: That is correct, Chairperson. If things went according to plan. If I could abduct or kidnap someone there and then take it further then I could eliminate the persons there.

MR NTHAI: No, no, no, I just want to understand exactly your discussion between you and Mr de Kock. Did he say to you that you go and set up a trap and arrest those people and then thereafter go and eliminate those people the other side? Is that what he said?

MR VAN DYK: He told me go and set a trap and try to arrest the persons who would come through the guide. I had to attempt to arrest that man but at the point where we were lying I could take my own decisions as well if things did not go according to plan.

MR NTHAI: And what type of firearms were you carrying?

MR VAN DYK: Chairperson, I am not entirely certain but I know we had firearms with silencers. I cannot recall whether these were sub-machine hand carbines or pistols, I'm not certain. We had a variety of these firearms. The purpose of the silencers attached to the firearms was if the persons returned and we had a shooting incident there then we would not alert the persons who were moving in the bakkie.

MR LAX: How would the people driving in the vehicle hear you shooting? They would have driven away already at the time you would have had to open fire?

MR VAN DYK: That is correct, Chairperson.

MR LAX: They couldn't possibly have heard you?

MR VAN DYK: If they were not far away they would have heard if we used normal firearms.

MR LAX: Wasn't the objective of the silencers totally different? The objective of the silencers was to prevent the army people patrolling in that area from hearing?

MR VAN DYK: No, there was no such discussion.

MR LAX: Well that's what the other witnesses have said so far, there were people patrolling that area, you didn't want them to know what you were up to?

MR VAN DYK: No Chairperson ...(intervention)

MR LAX: Well that's why you - why otherwise would you use a silencer?

MR VAN DYK: My purpose ...(intervention)

MR LAX: No, no, no, not what your purpose was, why else were you given the order to use a silencer? Because you were ordered to take those weapons with silencers?

MR VAN DYK: If those people moved back quickly and that bakkie was still standing there, and it departed late, they would have clearly heard if we shot without silencers.

MR LAX: But anyway, the record will speak for itself. You've given your explanation. Sorry Mr Nthai, please continue?

MR NTHAI: Were all the firearms fitted with silencers?

MR VAN DYK: As far as I can recall, yes.

MR NTHAI: And where were these firearms coming from?

MR VAN DYK: We had many of these firearms at Vlakplaas.

MR NTHAI: So they all came from Vlakplaas?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: And the one that you were carrying, where did you get it, were you given it by Mr de Kock?

MR VAN DYK: Yes, usually because these firearms, if it was not used it was locked up at Vlakplaas. So Mr de Kock would usually supply us.

MR NTHAI: No, I'm talking about the firearm that you were carrying, you were given by Mr de Kock?

MR VAN DYK: If I used one with a silencer I would have received it from Vlakplaas and Mr de Kock was in control of these firearms.

MR NTHAI: You can't remember what type of a firearm you were carrying yourself?

MR VAN DYK: I'm not certain whether I had a hand carbine or a pistol.

MR NTHAI: You can't recall that you were carrying another one?

MR VAN DYK: No.

MR NTHAI: You never had another one?

MR VAN DYK: Another firearm? No, I did not have another one, I had a pistol or a hand carbine.

MR NTHAI: Now it appears you had a discussion with Mr de Kock in detail. Now you see, the one who ordered you to use the silencers, or that came from you?

MR VAN DYK: No, I think the proposal, I would not say that it came from Mr de Kock or myself but the discussion point was that I cannot recall who proposed it but the purpose was because this vehicle stopped close to us and if this person returned and shooting ensued, that the persons would depart in the vehicle and would not hear that there was a shooting because then the operation would be jeopardised

MR NTHAI: So you are saying that these people came in and they moved to where the bakkie was parked, is that correct?

MR VAN DYK: Correct, Chairperson.

MR NTHAI: And at that stage they were not aware of your present, is that correct?

MR VAN DYK: No they were not, that is correct Chairperson.

MR NTHAI: Was there a stage when they became aware of your presence?

MR VAN DYK: Only when they returned and we shone the light at them and the shooting ensued.

MR NTHAI: Did they shoot at you?

MR VAN DYK: According to my memory, yes they did.

MR NTHAI: And who - you are the people who opened fire first, is that correct?

MR VAN DYK: I would not be able to say who fired shots first, it happened so quickly there was no time. I am not able to say who shot first but we did shoot.

MR NTHAI: Do you still remember how many shots you fired?

MR VAN DYK: I cannot recall.

MR NTHAI: Now I just want to come to the point after the shooting. Are you saying that you tried to chase this other person?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: And how far did you go, to chase him?

MR VAN DYK: Chairperson, we did not get very far because he ran over the Lother Road and they were busy cutting down trees there, there were many branches and bushes there and things were lying all over the place. If we have a look at Exhibit K you would say I draw some lines there. That is how the things were lying in rows there and these heaps were easily five or six feet high, you couldn't go through them, you had to move around them and in the dark we lost the person entirely.

MR NTHAI: And you were no longer worried about the other person in the vehicle who was waiting for them?

MR VAN DYK: The person in the vehicle? You mean the one in Swaziland? No, we knew that if we could not find that person and we could not execute that operation on the other side because we did not know where the vehicle was on the other side.

MR NTHAI: Now I just want to - and then when did you - let me put it, when did you see Sindane again, the person who escaped?

MR VAN DYK: I think it was the following day. Mr Pienaar found him as I understand it at the counter-insurgency unit. They arrested him somewhere. I'm not sure whether it was at Amsterdam or Piet Retief, but I did see him.

MR NTHAI: Was he injured when you saw him?

MR VAN DYK: Yes he was injured. I'm not sure whether he was shot through his upper leg or through his hip or through his arm but he was injured, yes.

MR NTHAI: And you can't recall where you saw him?

MR VAN DYK: I'm not sure whether it was at Piet Retief or at Amsterdam but Mr Pienaar was also there so I cannot recall exactly where it was.

MR NTHAI: And you recall the farm where he was taken to?

MR VAN DYK: The farm? No.

MR NTHAI: The place where you were there, where you had braaied.

MR VAN DYK: No, I was not there, I cannot recall that.

MR NTHAI: So after his arrest you say you never had any dealings with him?

MR VAN DYK: No, I only saw him once and not again thereafter. Why I recall that I saw him is that we all returned to the area the following day to see whether we can find the man. That is why I cannot recall where exactly I saw him afterwards and later, once again, it was in court in Ermelo.

MR NTHAI: And you don't remember and incident where he was being assaulted?

MR VAN DYK: No, not at all.

MR NTHAI: You did not see that?

MR VAN DYK: No, I did not see any such thing.

MR NTHAI: Well, you see, he's going to say that you assaulted him?

MR VAN DYK: No, Sir, sure not.

MR NTHAI: But do you recall him? Do you recall Mr Sindane?

MR VAN DYK: That is correct, I saw him. But assaulted? I never assaulted him, not at all.

MR NTHAI: I see. I want to take you to his affidavit that appears on bundle 2. That is page 75. Well, first of all I need to indicate to you that Mr Sindane is going to give evidence and in his evidence there are certain things that are not correct. Some of them I pointed out the other day. Now I want to take you in particular to paragraph 9 where he is saying

"When they took off the blindfold I saw that I was surrounded by about 5 men in civilian clothes."

Oh, 19, I'm sorry. Paragraph 19, my bundle is a bit folded, I'm sorry. 19.

"Where I later discovered that members of the Security Police station in Piet Retief"

and he says in particular:

"I saw W/O Pienaar and W/O Botha. I believe that they were the ones who had beaten me. I was then taken to Piet Retief."

Did you see the blindfold when you saw him?

MR VAN DYK: No, Chairperson, I cannot imagine seeing anything like that.

MR NTHAI: You see, Mr Sindane is going to say that actually the person who is referred to as W/O Botha is actually you?

MR VAN DYK: No, Chairperson, then the statement is just as incorrect as the others. I did not assault him, I was not close to him. I only saw him and I had no further dealings with him.

MR NTHAI: The same applies to paragraph 20 where he says

"En route to Piet Retief I was taking to a nearby farm where I was again beaten by W/O Botha. He hit me in my face."

MR VAN DYK: I have no knowledge of this.

MR NTHAI: Well he is going to say, Warrant Botha, it's referring to you because he had an opportunity to see you today?

MR VAN DYK: That is not true Chairperson.

MR NTHAI: And he is actually going to say that the reason why he put the name of W/O Botha was because he had a discussion with Masego while they were in prison and as they were describing the people who assaulted him, I think they gave him the name of Warrant Botha. He is now satisfied that you were the one that assaulted him with an open hand. You deny that?

MR VAN DYK: I deny that Chairperson. I never participated in any interrogation of Mr Sindane and I do not know Masego.

MR NTHAI: I want to show you another paragraph, that is paragraph 26. You must just tell me if you are finished looking at it?

MR VAN DYK: I've already seen it, yes thank you.

MR NTHAI: Are you saying you know nothing about the photographs that are mentioned in that paragraph?

MR VAN DYK: No Chairperson. I have no knowledge of this Msandile. Is that not the person who was shot there at the T-junction because I am not sure to whom you refer here.

MR NTHAI: No, I'm just saying do you know about the photographs that are mentioned there, photographs that were shown to him?

MR VAN DYK: I have no knowledge, Chairperson.

MR NTHAI: And you don't know of this person that he is referring to?

MR VAN DYK: I have no knowledge.

MR NTHAI: Well he is going to say that you know about that?

MR VAN DYK: That's his problem.

CHAIRPERSON: Are you going to be much longer?

MR NTHAI: Yes.

CHAIRPERSON: Well I think we'll take a short adjournment at this stage.

COMMITTEE ADJOURNS

MR NTHAI: (continues) Thank you, Chairperson.

CHAIRPERSON: You're still under your former oath.

PAUL J VAN DYK: (s.u.o.)

MR NTHAI: Yes Mr van Dyk, I just want to take you back to the shooting incident. You see, Mr Sindane is going to confirm that what Mr Nofomela put to you that they never fired a shot on their side, do you dispute that?

MR VAN DYK: Chairperson, I shall deny that. We exchanged fire, it did not only come from one side.

MR NTHAI: Why are you sure, why are you sure that there was an exchange of fire?

MR VAN DYK: Well afterwards, as far as I recall, shells of the VZ25 that Mr Sindane had was handed in during the post-mortem inquest, that is far as I can recall, the shells were picked up there.

MR NTHAI: Did you pick up the shells?

MR VAN DYK: As far as I know we shone the flashlights there and we picked up the shells to ascertain how many shots were fired. I think we picked up two or four shells, I'm not sure.

MR NTHAI: When did you do that? At what stage did you do that?

MR VAN DYK: It was that night, that same evening.

MR NTHAI: No, but after the shooting you chased Sindane?

MR VAN DYK: That is correct, yes.

MR NTHAI: So you want to tell me you came back?

MR VAN DYK: That is correct, we came back to the point.

MR NTHAI: Just explain that? What happened? So you chased him and you came back?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: Why were you coming back?

MR VAN DYK: To check at the scene itself. The other person was shot there, he was dead he was lying there and Mr Sindane was gone at that stage and there was no way that we could find him that night and then when we returned to see if we could determine how many shots were fired and what happened there.

MR NTHAI: And where was - the body of Msandile was still lying there?

MR VAN DYK: Yes it was still there.

MR NTHAI: You left the body there and you chased Sindane, is that what you're saying?

MR VAN DYK: That is correct, Chairperson. I don't know whether if it was even ten minutes that we were gone from the scene.

MR NTHAI: Yes, so what happened first is that after the shooting you chased Sindane and you didn't check whether there was a person who was shot or not?

MR VAN DYK: No Chairperson, we ran after Mr Sindane directly because as I said it was dark and there was a wire fence there. We had to get through the wire fence and follow Mr Sindane. I know that area quite well, I worked there many years and I realised that there was no way that we would find him there in the dark and that is why I returned back to the point where the shooting had taken place.

MR NTHAI: Are you telling you only realised that you shot Msandile after you returned?

MR VAN DYK: No Chairperson, we saw the one man falling and we saw the other man running away and if I am not mistaken I think the other person was probably Mr Mogadi. I think someone remained behind. I cannot recall exactly what happened but some of the persons pursued Mr Sindane and the possibility that someone else remained behind is not excluded.

MR NTHAI: But when you came back there did you find somebody?

MR VAN DYK: Yes.

MR NTHAI: Who was there when you came back?

MR VAN DYK: Mogadi was there at that point.

MR NTHAI: So when you chased - yourself, I'm talking about yourself now, when you chased Sindane you were not sure whether that person was dead or not?

MR VAN DYK: At that stage I could not say for sure that he was dead but when I returned I saw that he was dead but at that stage when we ran after the other person, I did not stop next to the person to check. We just ran after Mr Sindane at that stage. But as I said, he had a head start and we had to get through a fence to get after him.

MR NTHAI: At that stage you were not aware who was the person who was shot, whether the person who was shot was the person carrying a firearm or not?

MR VAN DYK: No, according to what I recall the person who escaped was the person who had the firearm, he threw the firearm down and ran away.

MR NTHAI: You saw that?

MR VAN DYK: Yes, I could see that in the light of the torch.

MR NTHAI: Let me come to the torch, the torch thing. You see, Mr Sindane is also going to confirm that the torch was only used, in other words he is going to confirm what Mr Nofomela is saying, that the torch was only used after the shooting, not before. What do you say to that?

MR VAN DYK: He ran away, Chairperson, I cannot see how he could say that. I mean we shone the light at them and then I noticed that they had a firearm and that is when we started shooting.

MR NTHAI: So are you going to dispute that?

MR VAN DYK: Yes I will deny it.

MR NTHAI: Who was having this torch?

MR VAN DYK: I think there were two torches. Willemse as far as I know had one and I'm not sure whether Nofomela had the other one but I cannot recall whether I had it but I think there were two torches.

MR NTHAI: And the torches that you used to see this firearm, which one was that? If there were two torches?

MR VAN DYK: Well they were walking next to each other or behind each other, I'm not sure, I think Mr Sindane, they walked behind each other as far as I can recall. I'm not sure he walked in front or whether the other person walked in front but they walked together next to each other. When you shone the light at them you could see both of them, I would say.

MR NTHAI: Can you describe these torches, what kind of torches are those?

MR VAN DYK: A normal torch.

MR NTHAI: A small one?

MR VAN DYK: No, it's a three cell torch.

CHAIRPERSON: And where did he have this firearm when you shone the torch and saw it?

MR VAN DYK: It was over his shoulder, Chairperson. Over his shoulder as far as I can recall.

CHAIRPERSON: How do you mean over his shoulder?

MR VAN DYK: It had a shoulder strap attached to it, it was over his shoulder.

CHAIRPERSON: Because as I recollect the evidence, that when Exhibit A, was it, was handed in with photographs, we were shown this firearm and it doesn't seem to have a shoulder strap on it. It is the one second to the right with a barrel on the red ...(indistinct).

MR VAN DYK: Chairperson, are these the firearms that were found in the vehicle?

CHAIRPERSON: The others are, this is the firearm that was found at the scene of your shooting.

MR VAN DYK: Yes, but as I recall it had a shoulder strap. It's possible that he had it in his hand but I can recall, as I recall it, it had a shoulder strap.

MR LAX: That's what you testified earlier and it struck me, it struck me particularly when you were taken through your affidavit and you didn't correct that? You were specifically shown the paragraph dealing with what you saw, paragraph 10 on page 16 of bundle 2. It's the paragraph at the top of the page. If you look at the second last sentence, you say

"I immediately observed that the one person had a firearm in his hand and that he had lifted it up."

That wasn't your evidence at all and you didn't correct that when you were given an opportunity to?

MR VAN DYK: Chairperson, if I said that I picked it up, that's correct. The question that was asked of me now was that can I recall that he had a shoulder strap which had hung from but if the thing was in his hands that was also possible. I cannot say now that it was so.

MR LAX: He couldn't have had it over his shoulder if he had it in his hands? He's holding it in two hands and he picks it up. Now that's very different to walking, as you demonstrated, like this, with a rifle as one would walk with a rifle with a shoulder strap.

MR VAN DYK: No Chairperson, what I mean is that if the strap was over his shoulder the firearm will hang down here.

MR LAX: But there's a big difference between walking with the shoulder strap whether it's pointing up or down is irrelevant and having it in your hands?

MR VAN DYK: But he had it in his hands.

MR LAX: But how could he have it in his hands if he had it on a shoulder strap.

MR VAN DYK: It was over his shoulder and he held the firearm with one hand.

MR LAX: Normally you hold a rifle with two hands, isn't that so?

MR VAN DYK: Yes if you want to get technical he could have held it with one hand or two hands.

MR LAX: You explain to me how in the time you saw him and you opened fire very quickly, right? Say yes, don't nod your head. Just answer, I said right? And you nodded your head. Do you mean yes? Hello?

MR VAN DYK: Please repeat the question then I'll answer?

MR LAX: I said you opened fire quickly and you nodded your head and then I said the nod is not going to get picked up on the microphone.

MR VAN DYK: That is correct, Chairperson, I shot when I saw the man had a firearm.

MR LAX: Correct, now how could he fire shots at you so quickly that once he's got the rifle over his shoulder?

MR VAN DYK: I think he is a trained person. If he came in with a firearm and had to return and the purpose was to use it. I cannot see that he could not react if persons got up in front of him all of a sudden.

MR LAX: But you see, on your evidence the man threw the thing away and ran away?

MR VAN DYK: That was after the shooting, after he shot him he ran away. Yes, if shots had been fired at me I'd return fire and I ran away again, it has happened to me.

MR LAX: On the evidence as you've told it to us, what time did he have to do that? And he starts running away at the same time because he ran away so quickly you couldn't catch him?

MR VAN DYK: Chairperson, this all happens in a fraction of a second. We shone the light at the man, I saw he had a firearm and there was a shooting, everybody shot and the man ran away at the same time. At a fraction of a second there was no time for them to stand, it's a reaction that takes place immediately.

MR LAX: No, well carry on.

ADV SANDI: Excuse me Mr Nthai. Mr van Dyk, did you personally have any light with you and a torch?

MR VAN DYK: That is what I'm saying. I'm not sure whether I had the torch. I think Willemse had the one flashlight. I'm not sure whether Nofomela or I had the other one but I'm not entirely certain.

MR LAX: But you're sure you had a torch?

CHAIRPERSON: No, ...(indistinct) or Nofomela.

MR LAX: Oh, so you're sure you didn't have a torch?

MR VAN DYK: Nofomela or I had a torch, I'm not sure which one but as far as I know, we had two flashlights there.

MR LAX: Yes, but you would know if you were carrying the torch and firing with you other hand?

MR VAN DYK: Would it make a difference if I said that I had a torch?

MR LAX: Because previously you testified that you weren't sure which of the other two had the other torch?

MR VAN DYK: Let me put it as such. If I can exclude something I would say that I had a torch and Nofomela had a torch.

CHAIRPERSON: You have said consistently, haven't you, that Willemse had a torch?

MR VAN DYK: That is as far as I know, why I say Willemse had a torch, he tied it with tape to his firearm, the flashlight, because when one switches it on it will shine where you are shooting, that is how we did it. That is why I am not certain whether Almond or myself had the other torch but we had two torches.

MR LAX: If you'd used a carbine as you think you might have rather than a pistol, you would have taped it to the barrel of that carbine as well?

MR VAN DYK: That is correct, Chairperson.

MR LAX: Please don't talk to your attorney when you're testifying or to your legal practitioner. You're under oath, you're giving evidence. I've noticed you've done it a few times. You're not entitled to, if you want to ask a legal question of your attorney you're entitled to do that but you're not entitled to explain your evidence to her, over and over again. Please understand that.

MR NTHAI: Mr van Dyk, are you saying that you can't recall whether your firearm was attached with a flashlight?

MR VAN DYK: Because I am not certain whether I had a hand carbine or a pistol or if I had a hand carbine I would have taped it to the barrel, but it's not possible with a pistol.

MR NTHAI: Well you see, the reason why I'm asking you this is because this was put to Mr de Kock by your legal representative. It was put that your firearm had a flashlight?

MR VAN DYK: Mine? I'm not certain whether I had a pistol or a hand carbine, that's why I said if I had a hand carbine we would normally do it like that. If I had a pistol I could not have done so.

MR NTHAI: But you don't recall telling your legal representative whether your firearm had a flashlight or not?

MR VAN DYK: Not that I can recall, I'm not sure.

MR NTHAI: Yes, it was put, I can come to that specifically.

CHAIRPERSON: Have you got the reference to that?

MR NTHAI: It doesn't have pages, the one that ...(inaudible).

MS COLERIDGE: Chairperson, it's the cross-examination by Ms Prinsloo - Van der Walt, sorry.

CHAIRPERSON: Page 882, the top of the page?

MR NTHAI: Yes, it says - you see that?

MR HATTINGH: It's actually at the foot of page 881, Chairperson.

MR NTHAI: Yes, where it says

"And he will also further give evidence that when these persons moved there, there was a flashlight attached to his firearm and when he showed his light on the person he saw that one person had been arrested and he saw that there was no possibility that anybody could be arrested. He then fired."

CHAIRPERSON: And that was later corrected to explain that the counsel had not meant to say "arrested" but had meant to say he saw that one person had been armed.

MR LAX: Yes, just let me place on record that we have slightly different numbering on some of the transcripts but we've quoted the correct paragraph.

MS COLERIDGE: Chairperson, I just want to explain the position regarding the numbering, is that some of the legal representatives have the internet facility so then it would be sent through the internet and others had received the bundles so therefore it changes in the numbering.

MR NTHAI: So your firearm had a flashlight?

MR VAN DYK: Not as far as I can recall.

MR NTHAI: So your legal representative didn't put it correctly to Mr de Kock?

MR VAN DYK: That could be yes.

MR NTHAI: Now I want to come to your affidavit. The affidavit you made for the inquest. That is the one that appears on page 15 of bundle 2. You are saying that the reason why you didn't place Mr Nofomela at the scene of the shooting itself, what was the reason?

MR VAN DYK: According to my knowledge at that stage, Mr Nofomela was involved in the matter for which he is currently incarcerated. The court case was pending at that stage and we wanted him to alter the picture so that he would not testify in the case.

MR NTHAI: So you want to tell me that you involved him in this operation while knowing that he was involved in a case?

MR VAN DYK: No, Chairperson. I think the hearing only took place later and the statement which we handed up later. At that stage when the statement was handed in and the post-mortem inquest had to take place, we decided to remove Mr Nofomela from the picture.

MR NTHAI: By then Mr Nofomela was not yet arrested, is that correct?

MR VAN DYK: No, he was not yet arrested but the case was pending.

MR NTHAI: What do you mean he was ...(intervention)

MR LAX: Sorry, can I just interpose? You made this affidavit on the 16th August 1986?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And this incident happened on the 14th August 1986?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And if you knew he was already involved in a case Mr Nthai's original question to you stands? Why did you use Nofomela who was already involved in a case in this operation?

MR VAN DYK: Chairperson, I think the dates here, the dates that are mentioned here are probably not entirely correct. I'm not sure but the point of the matter is that Mr Nofomela was involved and I then knew that he was involved in a court case and we decided to remove him from the picture.

MR NTHAI: Mr van Dyk, can you just put this thing clear? The affidavit was made on the 16th, two days after the incident?

MR VAN DYK: That is correct, as it is stated here.

MR NTHAI: By then Mr Nofomela was not yet arrested, is that correct?

MR VAN DYK: No, he was not arrested, only after the court case was he arrested.

MR NTHAI: Correct. Now when you said there was a case pending what do you mean?

MR VAN DYK: It was his case that was pending as far as I can recall, the matter where he was involved in Brits.

MR NTHAI: No, but he was not yet arrested for that matter?

MR VAN DYK: No he was not arrested.

MR NTHAI: So you want to tell me two days after you knew that Mr Nofomela was having a case, is that what you're saying? Or there's something wrong with the date of the affidavit itself?

MR VAN DYK: No, I would not dispute the dates there, there would be a reason for that but we did use him and because he had this case pending we decided to remove him from the picture entirely.

MR LAX: If you decided to leave him out of the picture, why do you mention him at all? Why involve him at all in the story?

MR VAN DYK: No, we had him at the other point, that is why in that statement you will see that I had Nofomela and Mogadi at the other point where no shooting had taken place.

MR LAX: Here's a man who you know is involved in a court case on your version, he hasn't been arrested yet, but you know it's pending. You don't want to put him where the shooting is but you put him there. Now you've got a suspicious man who has already got a case pending against him. Why not leave him out completely if you don't want to involve him?

MR VAN DYK: Chairperson, this man always worked with me, we worked together many years and I used him, I trusted him and I regarded him as a good worker and we used him that day ...(intervention)

MR LAX: No, no, you're not answering my question. You haven't understood my question. My questions are really a simple one. You didn't want to involve him in this, that's why you changed the affidavit and told a different version. Why not mention him at all, why rather don't mention him at all in your affidavit so no one would know he was there, it was the end of the matter, he wouldn't be involved at all in the case?

MR VAN DYK: I could have done so Chairperson, but unfortunately it did not work like that, we just placed him at another point.

MR LAX: Well doesn't that sort of defeat the purpose of trying to leave him out completely because of his implication?

MR VAN DYK: I understood what you're saying to me today, that is true but unfortunately it did happen that way and I cannot change that.

MR NTHAI: When this affidavit was drafted, there was a discussion around the affidavits themselves, is that correct?

MR VAN DYK: That is correct, yes.

MR NTHAI: And who took the affidavits?

MR VAN DYK: Pienaar, as far as I know.

MR NTHAI: And you are the one who told him about the things that appears here?

MR VAN DYK: Yes, we decided beforehand how we would draw up this statement. Mr Pienaar did testify to that effect that that is what happened.

MR NTHAI: I'm talking about where you decided, that where you decided there was a meeting where you decided, is that correct?

MR VAN DYK: It must have been in his office as far as I can recall. Mr Pienaar's office.

MR NTHAI: And who came with the suggestion that Mr Nofomela's name must not be placed at the shooting itself?

MR VAN DYK: I'm not sure, it could have been I, it could have been Mr de Kock, but I think I made the suggestion. I'm not sure now.

MR NTHAI: You see, Mr Sindane - I mean he is going to say that, I mean, first of all he never shot at you and you shot at him and then he dropped the weapon and then he ran. Are you going to dispute that?

MR VAN DYK: Yes, I will deny that, Chairperson.

MR NTHAI: And you are saying that you never had any dealings with Mr Sindane thereafter, I mean after the shooting, after he was arrested?

MR VAN DYK: I never had any dealings with Mr Sindane thereafter or I had any conversation with him. He was Mr Pienaar and Botha's responsibility, they did the investigation.

MR NTHAI: And there was no stage where you were present when he was interrogated?

MR VAN DYK: Not that I can recall.

MR NTHAI: I have no further questions.

NO FURTHER QUESTIONS BY MR NTHAI

CROSS-EXAMINATION BY MS COLERIDGE: Thank you Chairperson.

Mr van Dyk, it is clear that Mr de Kock's version is that this was always clearly an ambush, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: And according to you, you had some form of discretion in these circumstances, is that correct?

MR VAN DYK: That is correct, yes.

MS COLERIDGE: Who was your commander at that stage?

MR VAN DYK: It was Mr de Kock.

MS COLERIDGE: And when your commander gives you an order, an instruction, do you follow that?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: So in that instance, you don't really have a discretion, is that correct?

MR VAN DYK: No, but Mr de Kock always left room for if there was any problems where he was not present where one could take your own decisions.

MS COLERIDGE: Sure, I understand what you're saying but in this instance, his instruction was very clear from the outset that this was an ambush?

MR VAN DYK: Yes, one could describe it as an ambush. As I've said ambush probably means to you just kill but as I understood it, if we had find those persons first and then we'll them.

MS COLERIDGE: We've heard many definitions of an ambush and to accordingly, the record stands that an ambush is to eliminate people?

MR VAN DYK: I will not argue that.

MS COLERIDGE: I just want to refer the Committee to page 854 of the bundle. That's the transcripts where Mr de Kock states Mr van Dyk contacted him after the incident. I'll just read it to you, Mr van Dyk. Mr de Kock states

"Yes, Mr van Dyk contacted me. I think it was on the radio, I'm not certain. I speak under correction and he told me that with the return of the two carriers they then led them into an ambush with the silenced weapons and one person was shot dead."

So that was your report back to Mr de Kock, is that correct?

MR VAN DYK: Yes it's possible, I'm not sure what was said there but it's possible that that's how I relayed it to him.

MS COLERIDGE: So it's very clear that ...(intervention)

CHAIRPERSON: I think you should read to the end of that sentence where he says following on the fact that that person had escaped, not to cross the border and to attack the vehicle to kill that ANC members. He is saying here clearly that the instruction was if they had not escaped, to cross the border and kill the other persons?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: And then I just want to take you through to the versions of the shooting again. Your versions and Willemse's versions are very different. That is the shooting and I just want to refer you to all the relevant parts so we don't get it wrong. Mr Willemse's version would be on bundle 2 page 13 at paragraph 10.

MS VAN DER WALT: I beg your pardon, is reference made here to the statements? That is not the statement or the version as it appears in the amnesty application?

MS COLERIDGE: That is correct. He states at paragraph 10

"When the two Black men came close to us, we stood up and shone our flashlights at them. Lt van Dyk commanded the two in English to stand still and that we were the police"

Now we know that is incorrect, that did not happen. Then he goes on further:

"I noticed that one of the Blacks had firearm with him that he lifted up in our direction"

Paragraph 11:

"Lt van Dyk immediately started firing at them."

What is your comment regarding that?

MR VAN DYK: Chairperson, as I have said now that these are the previous post-mortem inquest statements here and the correction that I made according to my recollection and according to my knowledge that I have, when the lights were shone at the people, there was an immediate firing and that is when Mr Sindane through down the firearm and ran away.

MS COLERIDGE: And then in his amnesty application, Mr Willemse states at pages - this is just for the record, page 53 of bundle 1, it will be paragraph 2, line 12. He states that

"We heard that one of the two persons cocked a firearm but before he could fire a shot we fired at the persons."

So basically his version is quite consistent in a sense that Mr Sindane or none of those operatives actually fired on you, is that correct?

MR VAN DYK: Chairperson, as I have said in my evidence I cannot recall the firearm being cocked. All that I can recall was that the lights were shone at them. We saw the firearm and we opened fire.

MS COLERIDGE: And then I want to refer you to Mr Sindane's statement that he made. That would be page 76, Chairperson, bundle 2, paragraph 12. He states very clearly, at paragraph 12

"We were ambushed without warning as we walked along this footpath. Many shots were fired at us from the edge of the plantation. I was shot in my right forearm, left upper elbow, right hip and through both my thighs."

So basically it is clear that he states that it was an ambush, that according to his evidence as well as in his affidavit there was actually no time to actually shoot back?

MR VAN DYK: Chairperson, yes. In that fraction of a second of switching on the flashlight and the reaction takes a fraction of a second. For me it appeared that this man was a trained person, he could handle a firearm and my recollection is that we exchanged fire, it was not just from one side.

MS COLERIDGE: My other question to you is why did you use silencers on your firearms and the other persons at the other position had no silencers?

MR VAN DYK: Chairperson, as I have explained this was because of the mere fact that the persons who moved away in the vehicle, they would have been close enough to hear the gunshots if we did not use any silencers that was the only reason why we used silencers and the persons at the other point, they did not need it because it was the second ambush there.

MS COLERIDGE: It seems a bit strange, Mr van Dyk, because silencers, it is obvious that the persons in the vehicle would move once they'd dropped those persons there or once those persons crossed the borders and therefore you had silencers in order not to disturb the other persons moving across the border. What is your comment about that? That your intention was to ambush, to kill and not setting off a warning to the other persons crossing?

MR VAN DYK: No.

CHAIRPERSON: What other persons were crossing the border?

MS COLERIDGE: I want to just clarify that with Mr van Dyk.

MR VAN DYK: The only reason as I have said was to - the persons moving away, we did not want to alert them to the fact that a shooting was taking place behind them because a firearm without a silencer could be heard very far at night and they were persons who could have been in that area who could have heard the shots even with the silencer, it's not all that quiet.

MS COLERIDGE: And then just one last - Mr Deetlef's evidence was that when he was cross-examined by Mr Roelof du Plessis, his evidence was also in relation to the fact of the arrest. Obviously there's lots of versions about this arrest going forth and then he was specifically asked about the persons at the border and he conceded that the persons at the borders task was to eliminate persons. What is your comment on that?

MR VAN DYK: That is correct, Chairperson. If the operation went according to plan they would have all been eliminated anyway but we first had to find the person and then to eliminate them if we could find the persons on the other side of the border.

MS COLERIDGE: And just in relation to Sindane, he was the guide, is that correct?

MR VAN DYK: Yes that is correct.

MS COLERIDGE: Wasn't he the first person that was shot?

MR VAN DYK: I think they were walking diagonally behind each other, he walked in front because he knew the area as far as I could recall. Mr Sindane was not hidden behind him, if I may put it as such.

MS COLERIDGE: And you never attempted to arrest the guide?

MR VAN DYK: Not when I saw a firearm.

MS COLERIDGE: Mr de Kock states that persons are talking about arrests, lots of people that's regarding this application and that most persons are lying about the fact that there was ever talk about an arrest and that this issue was very clear, it was ambush and it was to eliminate people.

MR VAN DYK: Chairperson, in this regard I must state it as follows, to state it clearly, these persons, even if they were arrested, even if we succeeded in arresting this person, as soon as they showed us the person on the other side we would have eliminated all of them. The main purpose was not to arrest and detain. If we arrested them and we didn't find the persons on the other side of the border, we would have still eliminated them.

MS COLERIDGE: Chairperson, if you would just give me one second?

Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS COLERIDGE

CHAIRPERSON: Re-examination?

RE-EXAMINATION BY MS VAN DER WALT: Just on a singular aspect, Chairperson.

Mr van Dyk, for the record you have a beard, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: And during that time were you shaven?

MR VAN DYK: No, I had quite a beard.

MS VAN DER WALT: Have you had a beard all your adult life?

MR VAN DYK: Yes.

MS VAN DER WALT: No further questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS VAN DER WALT

MR SIBANYONI: Mr van Dyk, at one stage you used the words "you shot back" now I want to get clarity on that. Who fired shots first?

MR VAN DYK: It's impossible to say, I just know there was an exchange of fire because in such a situation to be able to say who fired first, in this regard I cannot say. If I had to accept that we had the advantage with the flashlights that we turned on and these persons were surprised then I could say we probably fired first. It is possible.

MR SIBANYONI: And the way I understood it, these persons were very close to where you were lying for ambush?

MR VAN DYK: Yes, I said two and a half to three metres approximately.

MR SIBANYONI: Yet Mr Sindane managed to escape?

MR VAN DYK: Correct, Chairperson.

MR SIBANYONI: Further, do you think of any reason why Nofomela would differ from you in his version?

MR VAN DYK: No, Chairperson. He may have seen it differently. As I've said that he was not involved in the post-mortem inquest originally because I placed him at another point and that may be why he differs.

MR SIBANYONI: Are you saying during the time of this incident on the 14th August 1986, Nofomela already had a case pending against him?

MR VAN DYK: That is as far as I can recall. The case was already pending for which he appeared.

MR SIBANYONI: Was he already charged or what was the position?

MR VAN DYK: I'm not sure but I know that there was some case pending. How far it was developed I did not know and how far it had progressed. I was not sure but that is how I recall it. That is why he was placed at another point.

MR SIBANYONI: Thank you Chairperson, no further questions.

MR LAX: Thanks Chairperson, just a few aspects.

Mr van Dyk, I may have mislead you when I asked you earlier about the purpose of the silencers. Are you quite clear that the main reason - you said the only reason in fact was that you didn't want the people in the vehicle to hear the shots?

MR VAN DYK: That is correct.

MR LAX: Now others have testified that the reason the silencers were to be used was because they didn't want the TIN people to hear?

MR VAN DYK: No Chairperson, I do not know why we would want to hide that. Other persons were also lying at some point. They made more noise than they did. The point was about the fact that the persons from the vehicle should not hear the shots.

MR LAX: Surely the other reason you would want to use the silencer and it's an obvious one, is that if you go and you're going into Swaziland, you don't want anyone in Swaziland to hear you shooting? You don't want the border guards to hear you shooting?

MR VAN DYK: That is also true, Chairperson, that is correct.

MR LAX: Now I made a note of what you said earlier. I just want to be clear about this. Where did the vehicle that picked them up come from?

MR VAN DYK: It came from Lother, Chairperson.

MR LAX: You see, the evidence is that that vehicle came through the border post?

MR VAN DYK: No, Chairperson, the border post closes at 6 o'clock, it couldn't have come through the border post and it definitely came from Lother's side and turned up.

MR LAX: So he came from Lother's side?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And these people came from the Amsterdam side?

MR VAN DYK: No, they came from Nerston's side.

MR LAX: I see. And you're quite sure in your own mind that if Nofomela says he wasn't with you he is making a mistake?

MR VAN DYK: Yes Chairperson.

MR LAX: And you're absolutely sure in your own mind that if - well, you've just recently conceded it was possible. If Willemse says you opened fired first, he's quite clear about that?

MR VAN DYK: I see that that is what he says but I would accept that we the advantage and fired shots first but there was an exchange of fire.

MR LAX: You see, on all the versions, you made no effort at all to try and stop these people and capture them?

MR VAN DYK: There was no chance, I would not argue with a firearm, Chairperson.

MR LAX: Why didn't you just try and wound him, non-fatally?

MR VAN DYK: There was no chance, Chairperson, we opened fire and the reaction was that this person was armed.

MR LAX: One person was armed.

MR VAN DYK: I mean the one person was armed.

MR LAX: Why shoot the other person? He's not armed, you saw he wasn't armed, why shoot him?

MR VAN DYK: This was all in the cross-fire, we could not say that he did not have a firearm, he could have had a pistol in his pocket and we wouldn't have seen it at that stage.

MR LAX: But he was in front, you saw him first?

MR VAN DYK: Yes, but if had a pistol in his pocket or had it somewhere behind him we wouldn't have seen it.

MR LAX: Well you see, either you thought he might be armed and you shot him, which is one possibility, or he was hit in the cross-fire which is a completely different possibility. Now your version and the version of your other colleagues is that he was unarmed and you saw that?

MR VAN DYK: We saw that afterwards at the time when I saw he didn't have a firearm but I could not accept that he didn't have anything with him at that stage.

MR LAX: So he wasn't shot in the cross-fire, you intended to kill him?

MR VAN DYK: Yes, I shot to kill, there's no other explanation, Chairperson.

MR LAX: Thanks, Chairperson, I've no further questions.

Sorry, there's just one other aspect that was worrying me. You were all at the farm prior to this operation, is that right?

MR VAN DYK: Yes, every month at a certain time we were at the farm.

MR LAX: You were busy with the Glory Sedibi matter?

MR VAN DYK: The Sedibi incident was also from Piet Retief.

MR LAX: It happened the day before in fact?

MR VAN DYK: That is correct, Chairperson.

MR LAX: So were you part of that?

MR VAN DYK: That is correct, Chairperson.

MR LAX: So you were busy with it?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And then fortuitously Pienaar spoke about this other thing and you guys then decided or at Colonel de Kock and Pienaar then between them decided they would do this little operation as well?

MR VAN DYK: That is correct, Chairperson.

MR LAX: How were you informed, what were you told exactly?

MR VAN DYK: Only that the information existed that trained MK members would come through and that this source would transport these people and that we would wait for them.

MR LAX: You see, what I'm trying to understand is, what exactly were you doing at the farm that day, what was your specific task? Can you even remember what you were doing there?

MR VAN DYK: I beg your pardon, Chairperson, I may have misunderstood you. When you referred to the farm I referred to Vlakplaas, not Piet Retief.

MR LAX: You were at a safe farm where Sedibi was being held?

MR VAN DYK: There where Sedibi was being detained, when we brought him out we took him to the place at Piet Retief, the farm. I did not participate personally in the questioning myself. I may have been in or out of there but I did not participate. We had other work so from there we moved. They would contact them if they wanted to know.

MR LAX: So then the truth is you don't really know what you were doing that day?

MR VAN DYK: Not that specific day. After Sedibi was taken I did not participate in any questioning.

MR LAX: I'm not saying you did or didn't, I'm just trying to understand what you can or can't remember and how it was that you came to know about this operation?

MR VAN DYK: Mr de Kock told me.

MR LAX: Yes, where did he tell you that?

MR VAN DYK: It could have been there at the farm, it could have been in the offices, I'm not sure but he told me that there was an operation.

MR LAX: Did he speak to you personally, did he speak to the whole lot of you?

MR VAN DYK: He spoke only to me.

MR LAX: Only you?

MR VAN DYK: As far as I recall I was alone when he spoke to me.

MR LAX: And did he tell you about the rest of the operation or did he tell you what your part would be?

MR VAN DYK: No, in general he gave broad general information to me as to what we would do and what they would do. It was just general information.

MR LAX: But the fact is that you - as I see your testimony, you essentially have reconstructed what happened, you have no independent recollection in your own mind about what happened?

MR VAN DYK: Where I was present I know exactly what happened as far as I can recall but what happened at the other points I cannot recall, I am not able to say.

MR LAX: Do you have any independent recollection of these events in your own mind as you sit here today? Crystal clear about exactly where you were when he told you, etc etc?

MR VAN DYK: No Chairperson. It's too long back.

MR LAX: My point to you is as I can see your testimony and the way you're testifying, it's clear to me that you don't have an independent recollection, you're just going on what half of these affidavits say and what's been reconstructed between all of you?

MR VAN DYK: No Chairperson, as far as I can recall, I can tell you but things that I cannot recall so well I cannot tell you about. I would not want to say something that I myself do not believe.

MR LAX: Thank you Chairperson.

CHAIRPERSON: Thank you.

WITNESS EXCUSED