ADV BOSMAN: Mr Vermeulen, could we have your full names for the record please.
NICOLAAS JOHANNES VERMEULEN: (sworn states)
CHAIRPERSON: Mr Cornelius, I'm affording him the respect his colleagues are affording him, they call him "Oom Snor". You can confirm that with your client.
MR CORNELIUS: Thank you, Mr Chair.
You are fondly known as Snor Vermeulen, is that correct?
MR VERMEULEN: That's correct, Mr Chairman.
EXAMINATION BY MR CORNELIUS: Thank you, Mr Chair.
You are an applicant in this incident and you gave your full cooperation in the preparation of the application to the TRC, is that correct?
MR VERMEULEN: Yes.
MR CORNELIUS: You initially, which is now common cause, confused Sedibe and Msibi and then a separate bundle was submitted with your amnesty application that was supplemen-tary.
MR VERMEULEN: That is correct, yes.
MR CORNELIUS: Do you also confirm you political objectives as it appears in this paginated document from page 84 up until page 93, is that correct?
MR VERMEULEN: Yes.
MR CORNELIUS: Then on page 93 you in very short tell us what your involvement was in this operation in Swaziland, is that correct?
MR VERMEULEN: That is correct.
MR CORNELIUS: You were a member of Vlakplaas, what was your rank?
MR VERMEULEN: I was a Warrant Officer.
MR CORNELIUS: You followed the instructions of Eugene de Kock, is that correct?
MR VERMEULEN: Yes.
MR CORNELIUS: Is it also correct that you worked on a need-to-know basis and you only reacted on the information that was conveyed to you?
MR VERMEULEN: That is correct.
MR CORNELIUS: You took part in the abduction of Mr Msibi and you were present at the scene when he was seized, as was testified to.
MR VERMEULEN: That's correct, Mr Chairperson.
MR CORNELIUS: I think which is important, can you just tell the Committee what did you do with the red Alpha vehicle?
MR VERMEULEN: I just know that it was pushed over a cliff to get rid of it. That is what I know about the red Alpha.
MR CORNELIUS: So we can accept that this vehicle was seriously damaged as it was pushed over the cliff, is that correct?
MR VERMEULEN: That is correct.
MR CORNELIUS: Did you yourself assault Mr Msibi while you abducted him?
MR VERMEULEN: Yes.
MR CORNELIUS: Did you help with the loading in of Mr Msibi into the vehicle?
MR VERMEULEN: Yes.
MR CORNELIUS: And you also illegally crossed the border, that is very clear.
MR VERMEULEN: That is correct, yes.
MR CORNELIUS: Did you carry a weapon?
MR VERMEULEN: No, Mr Chairperson.
MR CORNELIUS: Did you participate in the assault of Mr Msibi at the clubhouse?
MR VERMEULEN: No, Mr Chairperson.
MR CORNELIUS: Did you furthermore take a part in the assault that took place at Vlakplaas?
MR VERMEULEN: No, Mr Chairperson.
MR CORNELIUS: You had no personal malice against Mr Msibi.
MR VERMEULEN: No.
MR CORNELIUS: Did you receive any remuneration for this?
MR VERMEULEN: No.
MR CORNELIUS: Did you feel that you were acting in the interest of the country and that all of your actions fell within the framework of the police and the instructions that were given to you?
MR VERMEULEN: Yes.
MR CORNELIUS: Do you then request that this Honourable Committee give you amnesty for abduction, illegal detention of Mr Msibi in South Africa and the illegal crossing of the border?
MR VERMEULEN: Yes, Mr Chairperson.
MR CORNELIUS: You also ask for amnesty for assault and the damaging of property, and that is the vehicle.
MR VERMEULEN: That is correct.
MR CORNELIUS: And any other delicts or offences that may arise from these facts.
MR VERMEULEN: Yes.
MR CORNELIUS: Do you also apply then for amnesty for the illegal crossing of the borders and also defeating the ends of justice because you did not make known the true facts as it was known to you?
MR VERMEULEN: That is correct, yes.
MR CORNELIUS: Do you agree with the statement that Mr de Kock to the family?
MR VERMEULEN: Yes, Mr Chairperson.
MR CORNELIUS: Thank you, Mr Chair.
NO FURTHER QUESTIONS BY MR CORNELIUS
CHAIRPERSON: Thank you, Mr Cornelius. Mr Hugo?
MR HUGO: No questions, thank you Mr Chairman.
NO QUESTIONS BY MR HUGO
CHAIRPERSON: Mr Visser?
MR VISSER: No questions, thank you Chairperson.
NO QUESTIONS BY MR VISSER
CHAIRPERSON: Mr Prinsloo?
MR PRINSLOO: No questions, thank you, Mr Chair.
NO QUESTIONS BY MR PRINSLOO
CHAIRPERSON: Ms van der Walt?
MS VAN DER WALT: No questions, thank you.
CHAIRPERSON: Mr Nel?
MR NEL: No questions, thank you, Mr Chair.
NO QUESTIONS BY MR NEL
CHAIRPERSON: Mr Lamey?
MR LAMEY: No questions, thank you Chairperson.
NO QUESTIONS BY MR LAMEY
CHAIRPERSON: Mr Makondo?
MR MAKONDO: No questions, Chairperson, thank you.
NO QUESTIONS BY MR MAKONDO
CHAIRPERSON: Ms Patel?
MS PATEL: Thank you, Honourable Chairperson, I have no questions.
NO QUESTIONS BY MS PATEL
CHAIRPERSON: Thank you. Advocate Bosman?
ADV BOSMAN: No questions, thank you, Chairperson.
CHAIRPERSON: Thank you. Advocate Sandi.
ADV SANDI: Thank you, no questions, Mr Chairman.
CHAIRPERSON: Thank you very much, Mr Vermeulen, you are excused. I take it I could excuse him because you wouldn't have any re-exam?
MR CORNELIUS: I have no re-examination, thank you Chair.
NO RE-EXAMINATION BY MR CORNELIUS
CHAIRPERSON: Thank you very much.
WITNESS EXCUSED
CHAIRPERSON: It would appear we have come to the end of the applicants, unless I'm mistaken. I think I was keeping account, that we heard all applicants. Would I be correct? Mr Cornelius, I think you are not calling any witnesses?
MR CORNELIUS: No witnesses.
CHAIRPERSON: Thank you. Mr Makondo, are you going to lead any evidence?
MR MAKONDO: No Chairperson, no evidence will be led, thank you.
CHAIRPERSON: Ms Patel?
MS PATEL: No, Honourable Chairperson, I do not intend to lead any evidence, thank you.
CHAIRPERSON: So this concludes this matter, other than argument.
MS PATEL: That is correct.
CHAIRPERSON: I would allow a five minutes adjournment so that people get their thoughts together, that we deliver short argument in this respect. I think you will welcome it, Mr Visser, for reasons which you and I know.
We'll take a short adjournment of about five to ten minutes, thank you.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: ... they are applying for, it would make it tidier. I don't know who is ready to begin, but obviously it would be legal representatives for the applicants who would begin. I don't know if you had an opportunity to discuss this amongst yourselves, but it would be legal representatives for applicants.
MR VISSER: Well Chairperson, I will restrict the arguments to only one argument and that is between me and the Panel, as opposed to between me and my learned colleagues, because there seems to be an argument as to who should start and I have decided to succumb to the pressure and to start.
CHAIRPERSON: ...(indistinct - no microphone) as the most senior, you should.
MR VISSER: I thought ladies first, Chairperson, but ...
CHAIRPERSON: It doesn't work like that. Thank you, Mr Visser.
MR VISSER IN ARGUMENT: Chairperson, on the whole the application concerns the abduction of Mr Msibi from Swaziland and all that goes along with it. In Exhibit B, which we handed up on behalf of Brig Willem Schoon, at page 2 in paragraph 1, we attempted to specify the most important offences which we could distinguish on the facts, and they would appear to include perhaps a conspiracy beforehand, but it would include the abduction itself. It is clear that all the applicants who were involved crossed the borders illegally, either in or out or both ways.
CHAIRPERSON: I suppose both ways.
MR VISSER: Probably both ways. It is also technically correct that Mr Msibi, when he was landed in the Republic of South Africa, he became a person in custody and that custody would have been unlawful, it's unlawful detention. It is clear, Chairperson, that he was assaulted and we know assault doesn't even have to go hand in hand with a physical attack, even a threat could be an assault, so it's quite clear that he was assaulted to some degree and that all the persons who knew of the assault, associated themselves with that assault and became socius criminis with that assault.
It is also equally clear, in our respectful submission, that there would have been a defeating of the ends of justice, particularly from the point of view of policemen who are supposed to look after the law and order situation of the country, knowing that offences were committed and not reporting it or doing anything about it or going public with that knowledge. So certainly there was a defeating of the ends of the justice, which would have been a continuous offence, obviously.
And then, Chairperson, there may or may not have been in the case of certain of the applicants, for example, perhaps Col de Kock and whoever else was in the same vehicle with him, regarding the unlawful possession, transportation over international boundaries and use of illegal firearms, because the firearms that he spoke about, the Uzzis, I think you can take legal notice of, were not standard issue. And it may be that it can be argued by the Attorney-General, that a person like Brig Schoon would have known that they would have taken such weapons with them and that he would technically also be guilty of that kind of offence.
Chairperson, not to get involved in a long argument about it, but insofar as the Act does specify that the Amnesty Committee shall grant amnesty for offences and delicts committed by persons in the conflict of the past, subject to the conditions and provisions of the Act, we say, Chairperson, that we also ask, in the main really, for any offence or delict committed by Mr Schoon, in regard to this particular incident which we now know took place in June 1986, at Mbabane and in the Republic of South Africa, at Oshoek and in Pretoria.
So Chairperson, very briefly, we are honoured to appear before three Members of the Committee who has now a wide experience of the background against which amnesty applications have been brought, as it was envisaged in the TRC Act, the Act on National Unity and Reconciliation. We don't believe that it is necessary for us to rehash the background history, the conflict of the past, etcetera, etcetera, suffice to say, Chairperson, that in the words of the ANC itself, which is a very good description, in our submission, it was a war comprising the whole of the population and it was a war in which people were killed, in which terrible deeds were done on both sides, and that is the background against which amnesty applications have to be approached and have been approached, we are happy to say, by the Amnesty Committees before whom we have appeared. It wasn't a declared war, Chairperson, but we know that it made no difference, in fact it made it worse, because there were rules that would normally apply in a declared war, which did not apply in this particular war.
And Chairperson, bringing the background into focus in regard to the present applications, one has to think of the importance of intelligence by the opposing parties of each other. The war as it has unfolded before Amnesty Committees in the evidence, was clearly run on intelligence by the one party of the logistics and the manpower and the movements and the intentions of the opposing party. And that it's for that reason, Chairperson, that the role of informers became so important in the conflict of the past and hand in hand with that, it became so important for members of the Security Forces, who had to deal with the revolutionary onslaught, to turn people to either penetrate its own agents into "enemy" organisations and structures, but more particularly to be able to turn the head of a person, particularly one higher up in the hierarchy, in order, on that basis, to obtain information which made life a lot easier, and as you heard in evidence yesterday, would also place them in a position where the police could take evasive action before attacks occurred.
Chairperson, enough about the background. We come to the present case of Mr Msibi. I believe it is reasonable to submit to you that from a point of view of what we knew about the security structures in the past of the South African Government, that a person like Mr Msibi would have been a target, there can be no issue about that. In this particular case a softer approach was decided on, it was decided on an approach of abducting and trying to canvass him as a person to work with the Security Forces. Now that wasn't the first time that we have heard of, this has happened in quite a few, many cases where we have had amnesty applications in which precisely this had happened. Phila Portia Ndwandwe is one of the examples, Chairperson. In that particular case, when she wasn't prepared to be turned, she was of course executed.
In this particular case, we don't quite know what happened with Mr Msibi. We heard Mr de Kock's evidence of what Gen Buchner had told him later, that he was neutral. There were also indications that he may well have been turned. We don't know, and in our respectful submission, it's not necessary for you to make any finding on what the outcome of that was. What we do submit to you is that there is no evidence whatsoever that even vaguely suggests that any of the applicants who are appearing before you here today, had anything to do with Mr Msibi's death whenever it occurred. There seems to be a dearth of information on that, and as Mr de Kock said, it was a clean clinical and a simple elimination, and we really don't know who did that, in fact, even when it was done.
What is important is the evidence of Mr de Kock that Buchner spoke to de Kock and said to him, "Listen, warn the askaris not to eliminate Mr Msibi if they do recognise him, because he is no threat any longer". And in our submission, Chairperson, that appears to be the end result which was sought to be achieved with his taking out of Swaziland with his abduction, it was in fact to eliminate that threat. What was that threat? That threat was the fact that he was the Chief of Intelligence of the ANC/MK in Swaziland, which made him a very powerful person, given again the importance of intelligence in the war of the past. Also, being in that position he would have a lot of information at his disposal which the Security Forces would have thought they would be able, if they would be able to tap, would stand them in good stead.
So, he is now in Swaziland, he is the Chief of Intelligence, and Brig Schoon goes further and says that he remembers that there were security reports that Mr Msibi had something to do with the assistance of members of the ANC who left the country, who went for military training overseas and for their re-infiltration into the Republic. He also said that he remembered that Mr Msibi had something to do with the acquirement of Eastern-bloc weapons, which were infiltrated into the country and which were used for purposes of executing acts of sabotage and terrorism.
An interesting aspect that has come to the fore in the evidence here was the metal or aluminium housings which were referred to by Mr de Kock and by someone else, which was identified by Mr de Kock as being that used in the British Isles during that period of time, by the Irish Republican Army in their campaign of sabotage, and in fact that this was the first time when it was realised that these might be introduced into South Africa, and he told you here in my cross-examination of him, that it caused quite a stir, it was sent to the experts to have a look at and to warn other branches of the Security Police that this might be something that might be introduced here. This was found in the room of Mr Msibi. So Chairperson, by and by we submit you will have no difficulty in finding that Mr Msibi was a very important ANC member and leader and that clearly, he would have been a legitimate target for the Security Forces, particularly the Security Police.
As it turned out, National Intelligence had already taken an interest in Mr Msibi, and we heard statements made about an argument that resulted after Mr Msibi was abducted, in which some words fell between National Intelligence, Mr Neil Barnard and Gen van der Merwe. Just to give you the background, Dr Neil Barnard who was in fact the Director-General of National Intelligence at the time, which fell under the State President, the State President having been the Minister of that Department, so Neil Barnard was in fact the Director-General of the Minister being the State President in that Department. But that's just by the by.
And Chairperson, we have before us Exhibit A, which under normal circumstances of evidence, would not be of much value, except that insofar as it is supported by the evidence and insofar as it is supported by the evidence, we submit that it gives a reasonably clear picture from the mouth of Mr Msibi himself, of what transpired on the day of his abduction and later. According to this report, Chairperson, in the first column, it is hailed to be an account of how the late ANC member, Sydney Jabulani Msibi was also Oliver Tambo's guard, left South Africa in 1976 and was later abducted in Swaziland in 1986. This account was first given to a visiting friend from Swaziland. Now we don't know who that is or what the circumstances were, but the second part is more important, "and later relayed to lawyers in an affidavit". So it clearly means an affidavit which was made by Mr Msibi.
Now I wasn't privy, Chairperson, with regard to the criminal trial of Mokgabudi and - I can't remember who the other person was ...(intervention)
CHAIRPERSON: Rabuli.
MR VISSER: Rabuli. ... in which Mr Msibi gave evidence. I'm not sure, and perhaps my learned friend, Mr Prinsloo, can tell you whether any of this featured in that hearing, but the fact of the matter is, Chairperson, that by and large, and this is the reason why I refer to Exhibit A, by and large, the evidence of Mr Msibi in this affidavit as it is reported here, coincides to a, in fact, on all material aspects, with the evidence of the applicants before you here today, and on that fact alone, Chairperson, I would submit to you with respect, that the objector's objection should fall away. That objection being an objection that full disclosure was not made. Well Chairperson, with respect, each and every one of the applicants to whom you have listened, must have impressed you with their desire to tell you everything that they knew. Some of them from the point of view of their own part that they played, would have known less than others, but certainly all of them came to you, made a clear breast of it and told you what they remember and most of that, Chairperson, in all material respects, are supported and corroborated by Exhibit A.
Chairperson, ...(intervention)
ADV BOSMAN: Mr Visser, I don't want to interrupt your train of thought, but ...
MR VISSER: No, please do.
ADV BOSMAN: ... may I just ask you this. Surely the manner in which the assaults took place is a material aspect of the whole application and it would seem that the more serious assaults are not corroborated by independent evidence. Could you perhaps just, or will you come to that later?
MR VISSER: No, no, I'd rather come to it now. Chairperson, no, I started off by saying that as evidence this is meaningless without the evidence supporting it, and what I'm saying is this, that on all material respects the evidence of the applicants have been corroborated. Clearly there are differences. Now the difference, for example, an on a material aspect, is the degree of the assault, but then Chairperson, where you have direct evidence to say this didn't happen, our law of evidence says that that is what you must then accept in the absence of evidence to the contrary.
Now he talks about becoming unconscious, for example, being burnt with cigarette butts and his hair. Now it's a pity that Mr Msibi isn't around to come and give that evidence and if he did he would have been cross-examined, at the end of which he may have said "I stick with my story, this is what I did", or he may have said, "No, I said that at the time because I had another agenda, I did this for a particular reason", or he may have said, "You know, I actually just didn't like these people and that's why I said that about them." We don't know, Chairperson, and that's why the Rule of Evidence is what it is.
ADV BOSMAN: Mr Visser, I appreciate the evidential value of the document, but if you take into consideration other evidence we have in regard to, for instance, the duration of Mr Msibi's detention in the clubhouse, are we not in a position where we can draw certain inferences as to the veracity of certain material aspects of the evidence?
MR VISSER: In my submission, not, Chairperson, one must be careful, with respect, not to make the mistake of assuming things. The one thing which you will be assuming if you wish to make a deduction from the time that he was in the clubhouse, is that he was interrogated and assaulted all the time. Now there's no evidence on which you can make that deduction. In fact, two of the witnesses, Nortje said that, I remember, and perhaps another witness, said that - and yes, Mr McCarter said they were in and out of the clubhouse. It's not a stagnant situation where Mr Msibi arrives at the clubhouse and remains there for 10 hours and everybody stays in the clubhouse and everybody keeps on interrogating him and assaulting him, there's nothing that allows of that as a reasonable deduction to make. Certainly, we heard in the beginning that he was interrogated for about three hours, now we know that he was in the clubhouse for 10 hours, the question is, do they conflict with each other, and in my submission, they don't. He could still have been only interrogated for three hours over a period of 10 hours. The point is this, Chairperson, there is nothing on the evidence or the circumstances before you, which can allow a reasonable deduction that Mr Msibi was in fact assaulted in the way in which he was, namely so much so that he became unconscious. Well the cigarette butts and so on, that came later at Vlakplaas, that wasn't there. But I take the point that he was there on Mr de Kock's evidence, for far longer than we understood it ourselves, I must tell you.
ADV BOSMAN: Mr de Kock also told us that he was of such value at that time and they were keen to do whatever repair work they could do while they were at the border and that he was convinced that they would have questioned him for as long and as much as possible to try and get information, to go back if needs be, into Swaziland. Now surely with that evidence, are we not in a position where we can, at least on probabilities, make certain findings?
MR VISSER: But then you may not ignore Mr de Kock's evidence that that information as to where he lived, was obtained reasonably speedily. He gave him a few hard slaps and he got the information. And it all happened, if I remember his evidence correctly, within a three-quarter of an hour to an hour, and then he left.
ADV BOSMAN: Then we have further evidence from another one of the applicants, I'm not quite sure who it was, who said that upon Mr de Kock's return, they who were questioning him, I think it was Visser, Gert Visser, were so frustrated when they couldn't get more information from him in regard to the devices which were brought back in the box.
MR VISSER: But you see, Chairperson, with great respect, that's the point I'm making. You take a 10-hour period, you take the starting point and the ending point of the 10-hour period, at the beginning of the 10-hour period, if it was a 10-hour period, we have de Kock that has a priority, 'we're at Swaziland now, let's find out whether there's anything else in the machinery that we could discover now that we can go and tackle and deal with now'. This takes him, on his evidence, let's say an hour, then he leaves. Now you come to Visser, Visser talks about a frustration, that's at the end of the 10 hours when de Kock comes or whoever comes back, de Kock and Greyling I think it was, with the box with the apparatus, at that stage Visser tells you that they became frustrated because they wanted to know about this. That's at the end, Chairperson. All that I'm saying, with respect, is we must not make the mistake of taking the first hour and what happened there, and realising what happened let's say in the last hour or even two, and what happened there and projecting that over the whole of the 10 hours.
ADV BOSMAN: Thank you, Mr Visser, please continue, I just wanted to hear you on that.
CHAIRPERSON: Wouldn't Exhibit A also probably be of assistance here? He says after the slaps and what have you, and he provided them with an address.
MR VISSER: That's right.
CHAIRPERSON: They left, came back with a box and then the interrogation continued.
MR VISSER: Yes, yes. I think it fits into the general picture, not of a man being assaulted for 10 hours or interrogated for 10 hours on end - let me rather put it this way, assaulted and interrogated. He may well have been interrogated for 10 hours, he may well have been, but you heard what Mr de Kock said about Herman Stadler and there was other evidence about that as well, he was a non-violent man and while he was there, there were no assaults. So Chairperson with respect, if one had to speculate, one could speculate and say yes, he was assaulted for 10 hours and if that is so, we can draw the inference that he was assaulted in the way he says, or the newspaper article says in Exhibit A, but that would be speculation, it would not be based on fact and it would not be based on evidence. We had the evidence of those people who were present, to tell you exactly how he was assaulted.
And may I add, Chairperson, that in this amnesty process, if a man like Eugene de Kock comes to you today after he had broken both Mr Msibi's arms, as he said, and came and denied it, he would be more than stupid, because I mean whether he broke his arm or whether he didn't break his arm, he's still going to either receive amnesty or he's not going to receive amnesty. And in the light of all the other evidence, why would all the other witnesses, if this had happened that he became unconscious or that he was burnt with cigarette butts in the face or his hair set alight, why would not a single one of the others come forward and say that? You have to assume that all the other applicants are then dishonest about that. And frankly, Chairperson, there's no basis on accepting that all the applicants were ... In fact, I'm not arguing for Mr Schoon now, I'm arguing now for all the other applicants, so it seems to me, but it doesn't matter.
CHAIRPERSON: I thought you had a brief from your colleagues.
MR VISSER: Well they're certainly not going to pay me, Chairperson.
Chairperson, so that would be my submission, that one must just be vary of elevating speculation to evidence. One feels that one reads what is supposed to have been stated in an affidavit by Mr Msibi, and one wants to perhaps attach value to that, from a point of view that the man is now dead, he's not here to be able to speak for himself, but the reality of what we know in law, Chairperson, is people say things in affidavits, these applicants have all done so, which they later retracted and they explain that they did it for reasons, which may or may not be feasible reasons, but we don't know, and that is the real reason for the Rule of Evidence, that the evidentiary value of a document like Exhibit A, is of no value, except if it is corroborated, and it isn't corroborated in regard to the unconsciousness and the burning with cigarette butts, Chairperson, and we would submit that that is what you would then accept.
Chairperson, Mr Msibi was, as we know, held, and we've now dealt with how he may or may not have been assaulted. As I read Exhibit A, and the Honourable Chairperson has just pointed to this fact, he was assaulted, he gave an address, he was interrogated further and he was then brought to Vlakplaas, and he then talks about "the next day", which means that must refer to Vlakplaas, Chairperson, and everything that follows from the third column of Exhibit A must then, where he talks about "the next morning I was at a farm in Pretoria area", that farm must refer to Vlakplaas, Chairperson, there can be no doubt about that. And then he says he's interrogated by a Captain and two policemen and then he goes to, "during the evening" he was interrogated, and then only comes the cigarette butts nipped in his face and an attempt was made to set his hair alight, and he spoke about a necklace.
Now as it was pointed out during a question by Adv Sandi, all of this took place at Vlakplaas. And then he says he lost consciousness and his speech was slurred and slow as the interrogation ... And then "in the morning", which is again the next day, he had a headache and then he was booked into Brits Police Station, etcetera, etcetera. And he places the taking of himself to the Army camp, at a time much later, but he's clearly mistaken as far as that is concerned as well. It is quite clear on all the evidence here that he would not have spent longer than a day at Vlakplaas before he was taken away by Col Kallie Steyn. And the reason for that is a very simple one, if one had to draw inferences, and that is that National Intelligence were very concerned about, as Mr de Kock had stated here, their own informer who was a person above Mr Msibi, and they wanted him in their clutches as soon as possible, and obviously there must have been some pressure exerted and he was taken away by helicopter no less. So there was a measure of urgency to get Msibi away from the Security Branch of the Police, by National Intelligence, or it may even have been Military Intelligence, as it was suggested here by one of the witnesses.
Chairperson, I'm not sure whether there's anything else that I could really add to enlighten your thought process on this matter, or to make it easier for you to grant amnesty ...(intervention)
CHAIRPERSON: To make a decision.
MR VISSER: To make a decision. Chairperson, we would submit that the style of this particular incident is clearly in conformity with what the Act has in mind as far as proportionality is concerned. The assaults under those circumstances, were directed against Mr Msibi in order to extract information from him. It is quite clear on all the evidence that it was thought and probably with good reason, that Ms Msibi had very important and vital information which they could extract from him, and that is why they assaulted him. Obviously it can't be justified, but then in terms of the Act, you can only apply for amnesty for that which was not justified, in other words, which was an offence or a delict.
And it would seem, Chairperson, that there was a measure of success insofar as Mr Msibi did become isolated, he did become neutralised and in that sense we don't know what precise information was obtained from him, but even without that before you, it does seem that the action was proportionate to the end that was intended to be obtained, as the facts now lie before you. We certainly submit, Chairperson, that none of these applicants acted from an own personal motive, from ill-will or spite, they certainly were not rewarded in any way for this particular incident, and we would submit with respect, that the applicants in the present case complied with all the requirements and provisions of the National Unity and Reconciliation Act, Chairperson, in which event the Act says if you are satisfied of these requirements having been complied with, you shall grant amnesty for omissions and offences and delicts committed by such an applicant, Chairperson. We say, lastly, that there is no substance in any opposition that full disclosure was not made and we would ask then for you to consider granting amnesty as prayed for. Thank you, Chairperson.
CHAIRPERSON: Thank you, Mr Visser. Any other additions or subtractions?
MR HUGO IN ARGUMENT: Mr Chairman, yes, may I can just tell you what the offences are that we're applying for. Obviously it's also the illegal crossing of an international border, abduction and kidnapping, the unlawful detention, assault, defeating the ends of justice, unlawful possession of firearms and ammunition and then added to that is malicious damage to property, and more specifically the car and the house in Swaziland. And then it flows from that that any other offences and/or delicts covered by the evidence and the facts.
Mr Chairman, Mr Visser has done all my work, or just about everything for me, what I just want to emphasise once more is that Mr de Kock was really, with all due respect, in a position of a conventional footsoldier, he was at the time a relatively junior ranking officer, he was a Captain, he had done his exams to be promoted to a Major, but for all practical purposes he was still a Captain. He was obviously acting on instructions and authority from very high ranking officers at the time, being Brig Schoon, there was a Brig Visser or a Col Visser at the time, and then Brig Stadler. And then something else that the Committee shouldn't, with all due respect, forget, was the impact of the presence of such a high powered contingent of senior officers at the time, it must have had a profound affect on Mr de Kock and the other footsoldiers, if we may call them that.
Mr Chairman, the question as to whether this was aimed at a political opponent has been addressed by Mr Visser, I don't think there should be any doubt about that, save to say that objectively speaking, I think you find corroboration for that in Exhibit A, where it says that there was a meeting, where Msibi says that he had this meeting with a security policeman, Vincent Malaza, and it's very clear what this meeting was all about. And then coupled to that is the fact that Mr Malaza defected once more and didn't come back, he actually escaped and it's clear that he went back to the ANC, or at least the inference can be drawn fairly safely, that that is what happened.
Proportionality, Mr Visser has also dealt with. It's very clear that this was not an operation where it was decided that Mr Msibi would be killed willy-nilly and it's clear that they applied their minds and they took various options into consideration and it was decided that an abduction would be the proper way to go about it.
As far as full disclosure is concerned and the severity of the assault, Mr Chairman, may I first say this as far as Mr de Kock's evidence is concerned. He was the first applicant that mentioned the fact that illegal weapons were used, he was also the first applicant that mentioned the car that was damaged, he came to the fore and he told you about the assaults at the border post as well as at Vlakplaas, and to that extent he was corroborated by the other witnesses. And I would suggest that there's a propensity on his side to tell the truth and to come clear, and it's very evident from his evidence.
Mr Chairman, as far as the severity of the assault is concerned, I've heard what Adv Bosman had to say and certain reservations that she might have, but we mustn't lose sight of the fact that from the outset, and it appears very clearly from the evidence, the aim of this particular operation was to abduct him and to bring him back to South Africa and to glean information from him. They were convinced of the fact that Mr Msibi possessed very valuable information. Now we know from previous experience what happens if assaults are being done in a serious manner and if these things are being done with a certain degree of severity, there's a very likelihood that this particular person could be killed in the process, and if he had been severely assaulted as it would appear from Annexure A, there was a very strong likelihood that he could have been killed and that would have defeated the aim and the objective of this particular operation. So we submit that apart from what Mr Visser had to say, that the applicants' version as to the severity of the assaults, must be accepted.
Another thing that came to mind was the fact that Brig Schoon said that Mr de Kock was the "voorslaner", as he preferred to refer to it, and you would have noticed that we didn't dispute that at all. It's not a nice tag to have around your neck, but Mr de Kock accepts that and he didn't try to deny that at all.
There's just one other twist to the tale here and that was the financial gain aspect that was mentioned by the legal representative of the victims. I don't think I should really address on that whatsoever. So Mr Chairman, those are really the submissions that we want to make. Thank you very much.
CHAIRPERSON: Thank you, Mr Hugo. Whoever wants to add or subtract anything, I must say I'm indebted to Mr Visser who really dealt with the aspects which we should look into if we were to grant amnesty, in which respects we should. So I don't think anybody should burden himself with that, unless you want to add something or subtract something.
MR LAMEY: Chairperson, should we just perhaps also list the offences in respect of our own applicants and ...
CHAIRPERSON: No, I've just that I no longer need that because they've been covered fully by Mr Visser.
MR LAMEY IN ARGUMENT: Chairperson, may I just take a moment just to add upon the probabilities which has been raised by the Honourable Committee Member, Advocate Bosman. My submission is that the mere fact that a person is detained for 10 hours, cannot lead to the only reasonable inference that he is continuously assaulted during that period, to the extent that we should infer as a probability that he lost his consciousness and as he described it in Exhibit A.
Chairperson, and I want to add here also to the submission of Mr Hugo, that one must not lose sight of the whole purpose of his abduction and that is that he was destined to be transported to Pretoria, where he would be handed over to the Intelligence section of the Security Police. In other words, had he been assaulted to such a severity as is claimed in Exhibit A, then it could have defeated the whole object of his abduction, because what is most probable is that further information, after he had been transported to Pretoria, regarding the network of police informers, was of utmost importance and was actually the main focus of this whole operation.
It's also very unlikely that after the short assault bout and after Mr Msibi gave the information of his house and that information to Mr de Kock, that the assaults would have continued the whole time in the absence of Mr de Kock. It simply doesn't make sense, because one would be inclined to think that the Security Police will wait to see whether that information which he gave was true and correct and will keep him in such a state that whatever is found at his home, could be followed up later during an interrogation.
And furthermore, there's this aspect that one must also not lose sight that he had to be transported to Pretoria, and being a covert operation, Vlakplaas acting under covert operations, must have been very vary that the risk is not taken that they could be stopped en route to Pretoria, by another roadblock or something which ... and the man being found in their custody being severely assaulted and injured. That would have been difficult to explain, Chairperson. So I think one should also have a look at those probabilities. Thank you.
CHAIRPERSON: Thank you, Mr Lamey. Anyone want to add a word? Thank you.
MR MAKONDO IN ARGUMENT: Thank you, Chairperson.
Chairperson, as it has been highlighted by, or very well said by Mr Visser, the political objective aimed at is clear, the person was a clear target, Chairperson, that is not denied even by the family. His involvement in the top structures of the ANC, it's now even well known, hence him as a target. However, Chairperson, there is a shadow of doubt in terms of the assault.
Chairperson, Mr Msibi was abducted. As it was clearly detailed by all the footsoldiers who were personally involved, it was not a kid-glove kind of operation, an assault cannot be ruled out. It's severity Chairperson, given the times, given the way the Security Forces ... the covert operations, they way they used to operate, the degree of the severity of assault cannot be ruled out.
Chairperson, the Head of the Eastern Transvaal, the then Eastern Transvaal Security was present. As Mr de Kock said, in 45 minutes or so they got the information which led them to where Mr Msibi was staying, hence my question to, I think it was Mr Visser, "then why did you continue with the assault?" One makes an inference, Chairperson, that they were not satisfied with the little information that they got. Mr Visser said that they wanted information that could assist them to react immediately. The fact that I'm staying in this house for one, two, three, four reasons, these are things that are there, did not satisfy them, obviously. What is it that will prevent further assault? There were no rules used here. What is it that will prevent anyone who was there to trample on his toes, to threaten him in any other possible way?
Mr Visser S J, he said he cannot remember exactly who assaulted him, but he remembered who did not and he could not remember the type of acts, that is the assault per se. A number of applicants, Mr de Kock included, Mr Visser S included, said "we don't rule out the possibility of him being banged against the wall, maybe during the shuffling:. The same it can happen with the toes being trampled on.
Now Chairperson, the time period, that is now clearer to us, anything can happen during that time. Mr Nortje, Mr Bosch, Mr McCarter, they said, "look we were outside but there was movement in and out". Why would you rule out that if one goes in he would snap a cigarette butt on his face, trying to extract information out of him? There were no rules. The senior police officers who were there, they were not having control over what was happening.
CHAIRPERSON: Wouldn't the cigarette butts come at, if I'm not mistaken, at Vlakplaas, not at Oshoek?
MR MAKONDO: Correct, Chairperson.
At Oshoek, when people were there, as Mr S J Visser said, they were there watching perhaps, which is unbelievable Chairperson, they were not keeping account of who is doing what to him. Frankly, they had this person who to them is not only an enemy, it's even a source that is giving them trouble ...(intervention)
CHAIRPERSON: He is an enemy, the biggest.
MR MAKONDO: As I said, "not only", Chairperson.
Annexed, Chairperson, in the bundle is the background given as to how much pressure the internal Security Forces were under. Now if you get a person on your hands of Mr Msibi's calibre, with that kind of information, what would you save, what rules would apply there? It cannot be ruled out, Chairperson, that most of the things or some of them, perhaps even all, did happen. He was a sporty fit person, losing consciousness and being able to regain it quick, cannot be ruled out.
Chairperson, Mr Msibi, given the way he was viewed by the Security Forces, Mr de Kock's department was given immediate action to act there and then. That shows how much they needed him.
CHAIRPERSON: Not that Mr de Kock's department was the one given, because they were experts in abductions and hence they had to come in.
MR MAKONDO: Plus that, Chairperson. However, the fact that they did not even give him enough time to pick up his people in time to make other proper ... they didn't even give him, not even 24 hours to make an arrangement. According to his version he was called on Friday and he was told to "please organise people, we are leaving to the border, to Swaziland." Because they had this information from Mr Malaza, they didn't even want to delay, they were afraid. There was infiltration, they perhaps thought before they act there could be, Mr Msibi might have known by that time, they needed him so much, they acted there and then. And it's the first day attempt, if we believe Brig Schoon and others, that actually it was to happen the same time when they got there, but it was delayed for other reasons, but as soon as it could happen it did happen. Now given that kind of a picture, what is that they will do with a person like Mr Msibi? After obtaining information, what are they going to do with him? Killing is not a possibility that can be ruled out.
It's my submission, Chairperson, that after getting Mr Msibi all the Security Forces needed from him was information, how to get that information out of him, it did not matter. It is known historically that how they operate, it cannot be ruled out in terms of what is being said in the paper. Vlakplaas, Chairperson, it's a notorious well known place. If what happened in Vlakplaas, which we don't dispute, is what has been told here today, almost everyone at some stage they lost contact with him, at some stage they don't know what happened to him. We know that he was moved from Mbabane to Oshoek, Oshoek to Vlakplaas, from Vlakplaas he was flown with the helicopter, ...(indistinct) to the military base there and then. Mr de Kock thinks so, we don't know.
He talks of the detention in Brits, nobody knows, and that's how the Security Forces used to operate. He talks of a Magistrate visiting him, meeting Judge Goldstone. Chairperson, that cannot be ruled out. Actually some of them, like with the instance of Justice Goldstone, it's known that he did meet him. During his moving around, what is it that was happening? Who was in control, was it the Military Intelligence? Mr Visser said. Was it the National Intelligence? Was it the Security Forces? But what was happening to him at that time?
CHAIRPERSON: ...(indistinct - no microphone) that it is a fact that he was moved around, at least we know that he was abducted in Swaziland, first taken to a plantation, thereafter to the clubhouse near the border, thereafter to Vlakplaas and that's all that these applicants are saying. Should we look further than that when we come to make our decision, to say when he was flown by helicopter, probably to Brits, we don't know, but that's the first place he apparently mentions and subsequently he went to White River. They know nothing about that. He subsequently died. They don't know, but Mr de Kock shed some light to us that when he was released actually he was approached by Buchner, who said, "hey look, speak to your askaris because we have neutralised the person."
But the point I'm making is that the decision we've got to make, doesn't it relate to the abduction from Swaziland into the Republic, and probably the assault? And Mr de Kock says in his evidence that, "I had to tighten my hand, after that ...", that is relating to the assaults, "... he gave us sketches of the place where he lived in Mbabane." Because I'm just worried about the elasticity that now we've got to look at Brits, probably White River and what Goldstone did, Justice Goldstone did, and probably the Magistrate, but I know that it is standard that during those times when a person was under Section 29, he had to be visited by a Magistrate. That I can tell you off the cuff, I know that. But I'm saying, in relation to what you are submitting, what we've got to look at, because the crux is that you say the duration is long, 10 hours, and can we believe that just for 10 hours they did nothing to the man who was a big fish and who was a big catch? Do I understand you correctly?
MR MAKONDO: ...(indistinct - no microphone)
CHAIRPERSON: ...(indistinct - no microphone) to Brits and what have you, because the evidence before us is very clear that they have no idea of all that. And if we look ...(inaudible) he does say, "I was taken by helicopter from Vlakplaas", and no mention, because he attempts at least to mention Mr de Kock, Capt de Kock, his involvement, that he could recognise this was Capt de Kock, but subsequent to Capt de Kock there he doesn't even in Annexure A tell us about his involvement, and that would relate to the other footsoldiers of the SPs. I want you to just confine from Mbabane to Vlakplaas.
MR MAKONDO: Chairperson, in terms of the footsoldiers as I've said, that is the area in which there can be restricted, but Chairperson, we have top structures involved here, people who, if he was a big fish as it is alleged, should have kept not only contact, but also you have information as to what happened. It is as Mr de Kock said, that there was a clash between the Director, Neil Barnard and whoever, as to how they handled him. Chairperson, they should have known. It is my submission, Chairperson, that they do know.
How could such a big fish be left out ...(indistinct), how could such an important person be cut ties with?
CHAIRPERSON: Shouldn't we treat the evidence fairly there, that it subsequently transpired that even Neil Barnard who was Director of National Intelligence, had interest in him, but the events that led to his abduction is that Mr Malaza was siphoning information to Mr Msibi and that led to suspicions about Malaza, and when he was taken to Daisy, that is Malaza, he came and said "this is the person who's handling me from the ANC", and it somewhat created some emergency, because some documentation, if you heard, was getting lost instead of probably being shredded, it went missing. Hence they called Mr de Kock, that "come to Daisy and some of the senior people", and after speaking to Malaza and promising that "look, we won't handle you in a bad manner if you can disclose this", that's when the situation became very urgent. That's how I understand it, I may be wrong. But if you could give me your submissions in that respect.
MR MAKONDO: Perhaps, Chairperson, I should clearly state that in terms of footsoldiers we don't have a problem, not only because they disclosed their involvement, we understand they were under instructions, but as we are saying, Chairperson, in terms of people who were giving orders, it's our submission that that is not full disclosure. Hence it's my submission that they should have kept contact and they should have known where this big fish is landing. He was quite a big fish.
This, Chairperson, is even made worse by the fact that a number of things are not known. For instance, Visser says he doesn't remember this and that, he's not too sure if this did happen or not. Hence our submission, Chairperson, that the top structures, the people who were giving orders, the people who were in the top level, should have kept contact of his whereabouts until to the end. Our submission, Chairperson, is based on the fact that it's still unknown as to who and why was Mr Msibi killed. It's out submission that the top structure knows, at least they should be giving us light as to that effect. Only Mr de Kock came to say Mr Msibi was sold by a top ANC official in the Intelligence of the ANC.
Having found the information that Mr Msibi was handling Mr Malaza, they should know who else was the person in charge in ANC who was giving them the similar information, and they should disclose that. That will assist the family to be able to trace, to follow up as to what led to his killing. His killing remains unsolved according to the family. He was just shot as Mr de Kock said, in a clean manner. ...(indistinct) the fact that the family got there and there were three or four cartridges that they picked up. The people who shot him never came to record, the inquest just went on like that. The family only got the information that the inquest is closed. And that is the basis upon which the submission is made, Chairperson, that the top structure knows. Directors, or whoever they were, ...(indistinct) of a very high level, who ...(intervention)
CHAIRPERSON: No, no, let's not make it that wide. We know for instance here that one of the people in the top structures was here, Mr Schoon. We don't have before us as applicants for instance, Neil Barnard, Stadler, Buchner, Johan van der Merwe, we don't have those people. The rest, other than, because you must view Mr de Kock, that even though he had passed his exams, he remained a footsoldier, so that would include him and other then the top structures here we would have Mr Schoon. Are you saying he should have?
MR MAKONDO: Even Mr Visser S J and Mr Greyling. Chairperson, everyone who could give orders should have kept the link. Hence our submission that they know.
CHAIRPERSON: Then we have evidence that they operated on the need-to-know basis. I don't know if you appreciate that need-to-know basis. You are given this instruction, it ends there, you don't have to question why, and when that person is abducted you don't have to ask why and what happened to him, that ...(indistinct) relay to the footsoldiers, you operated on a need-to-know basis. That's how loosely I could probably translate it.
MR MAKONDO: In terms of footsoldiers as I said, we have no problems, that is accepted, but not with people of rank, of high rank.
ADV SANDI: Sorry, just for my own clarity, Mr Makondo, I hear you keep on saying, I think you've said it for the third time now, "in terms of the footsoldiers we do not have a problem", is that to say that you are now withdrawing your opposition in respect of the people you have referred to as footsoldiers?
MR MAKONDO: Thank you, Chair. My instructions were that the family were satisfied, hence my submission that there is no problem, they have disclosed enough and that will imply that the opposition against them is withdrawn, Chairperson.
ADV SANDI: Who would not fall under that category of footsoldiers? Mr Schoon ...
MR MAKONDO: Let me say who the footsoldiers are according to my instructions, starting from Mr de Kock, Mr Nortje, Mr Bosch, Mr McCarter and Mr Vermeulen.
ADV SANDI: ...(inaudible) exclude Mr Schoon?
MR MAKONDO: That excludes Mr Schoon, both Mr Vissers, if I'm correct.
ADV BOSMAN: Where do you place Greyling?
MR MAKONDO: Chairperson, can I get clarity in terms of that, I had jumped him in my list, Greyling.
CHAIRPERSON: These are the people who applied for amnesty: Messrs de Kock, Nortje, Bosch, Schoon, Gert and Schalk Visser, Greyling and McCarter. You'll find that on bundle 2, the people who have. So I hear you that Messrs de Kock, Nortje, Bosch, and who else would you regard at footsoldiers?
MR MAKONDO: Including Mr Greyling, Chairperson, he will be included in them. The people who were senior people of rank are Mr Gert Visser, Jan Schalk Visser, Mr Schoon. Those are the people who, according to my instructions, Chairperson, with their ranks they should know and that could assist the family to at least get to the finality of the matter, because their problem Chairperson, is as I'm saying, the killing is not known.
Also Chairperson, they also have a problem that according to the application of ...(intervention)
CHAIRPERSON: Could I interrupt and say you assist us because we've got to make a decision. Probably there could be a private arrangement, but we've got to make a decision as to whether they do get amnesty or not.
MR MAKONDO: On the basis of what I'm saying, Chairperson, is that those ones should not, because there is no full disclosure from their side.
CHAIRPERSON: You may proceed.
MR MAKONDO: And Chairperson, perhaps in conclusion I should say the family, their problem is that not until this chain is linked, the end part of who killed their beloved next-of-kin, it cannot be solved.
However, Chairperson, I may take this opportunity and convey their gratitude to Mr de Kock, having filled the gap, having put a clearer picture of who their beloved, who Mr Msibi really was. It is their point of view that he always maintained that he did not defect and that he never gave information, he was never seen - it was his point of view that he has never sold his side and hence they are very grateful for that, Chairperson. That will be my submission, Chairperson, thank you.
CHAIRPERSON: Thank you, Mr Makondo. Ms Patel? Before you do ...(intervention)
ADV BOSMAN: May I just enquire from you, Mr Makondo, what the names of the next-of-kin of Mr Msibi are.
MR MAKONDO: The names are already given to the Evidence Leader, but I can read that.
ADV BOSMAN: No, no, that is quite in order if she has the names and all the details, we can obtain it from the Evidence Leader if needs be, thank you.
MR MAKONDO: Thank you.
CHAIRPERSON: You may proceed, Ms Patel.
MS PATEL IN ARGUMENT: Thank you, Honourable Chairperson.
Given the description by Mr de Kock of the late Mr Msibi, I think the loss to this country goes broader than to just him not being present today to make a contribution to this country, but him not being present today to shed light on exactly what had taken place during and after his abduction.
Now it is in this light that, given that we're a Enquiry, not a trial, the Rules of Evidence as alluded to by my learned colleague, Mr Visser, are indeed relevant. I will however, ask you to take into consideration that when considering the evidentiary value to be attached to Exhibit A, which to my mind is in fact the core upon which this application turns, I will ask you to take into consideration Mr de Kock's admission that Mr Msibi was not an askari, he had not become an informer, he was in fact a man of integrity, to take into consideration the circumstances which led to his abduction. Firstly, that Mr Malaza being one of their own technically, who had in fact turned against them, there must have been some measure of anger in terms of that. Then also take into consideration the fact that the operation was launched during the day. It was a dangerous operation, it was in fact successful, that emotions must have run high, that the adrenalin must have been pumping at the time that he was in fact abducted and then taken to Oshoek. That there were senior members present there. That the only information, as far as Mr de Kock and as far as we know at this stage, that was revealed during that period, was that he had in fact only handed over his address. That even after a period of being kept there for some 10 hours by the time Mr de Kock had in fact returned, he still at that stage had refused to give further information, in the face of the equipment that was in fact found. That given all of that and the number of people who were in fact involved and present at Oshoek at the time, my submission is that the probabilities of his version as we have it on paper, that is Mr Msibi's version, is in fact more probable than the version alluded to by the applicants here today. I will also ...(intervention)
ADV SANDI: Sorry, can I just come in there. Isn't it the major trouble here, that the version as you alluded to in Exhibit A, has not been tested under cross-examination here?
MS PATEL: The unfortunate position is that we are not in a position to test it and never will be able to, because Mr Msibi is in fact deceased.
ADV SANDI: ...(indistinct) one now is left with a situation where you have to be suspicious, you have to draw inferences and I don't think that is the way any tribunal is supposed to function. No tribunal is supposed to base its findings on suspicions and human experience of its individual members. One has to come to conclusions on the basis of what you have before you as a tribunal. We have one version here from the applicants, which has been subjected to cross-examination and the rest is suspicions. We can only be suspicious. I also have suspicions because I'm a human being, but I can't base my decisions on suspicions. ...(end of side A of tape)
ADV BOSMAN: ... draw our inferences from what is put in the document which has literally no evidentiary value, except that there's evidence that the documents exists.
MS PATEL: In response, Honourable Chair, my submission is not that you draft your decision on the basis of suspicion, my submission is on the basis of the probabilities, given the surrounding circumstances under which the man was abducted.
ADV SANDI: Sorry, whilst you're talking about probabilities, what is the cardinal role concerning the use of inferential reasoning? Doesn't it say an inference can only be drawn if it is reasonable and it must not only be reasonable, it must be the only inference that can be drawn in the circumstances, otherwise it may not be drawn? You cannot come to conclusions on the basis of ..(indistinct) speculations.
MS PATEL: Absolutely, and ...(intervention)
CHAIRPERSON: I think Die Blom(?) assists us very much in that respect.
ADV SANDI: Yes, thank you.
MS PATEL: Well then I will take it no further than that, except to say that if one takes into consideration the kind of character as alluded by Mr de Kock, that Mr Msibi was and that was in fact confirmed by many of the other applicants who have testified, McCarter yes, and I believe Mr Nortje ... and by Bosch, I'm corrected by my learned colleague here, by Mr Bosch, the probabilities of him breaking in a sense, are less if he had not been assaulted. And also if one takes into consideration that it took them months, many months before he was in fact released, so he wasn't somebody who was going to spill the beans quickly. And chances are that, well this is speculation, but given the time period in which he in fact was held, that he wouldn't have revealed sensitive information voluntarily and without some measure of serious assault. I wish to take it no further than that, thank you Honourable Chairperson.
CHAIRPERSON: Thank you very much, Ms Patel. Do you want to respond or reply to that, Mr Visser?
MR VISSER IN REPLY: Very briefly, Chairperson. First of all, to my learned friend Mr Makondo, the issue of the assaults, Chairperson, he has dealt with on the basis that it cannot be ruled out, that's the basis, it cannot be ruled out that Msibi was assaulted more seriously than what the applicants spoke about, etcetera. Now that takes the matter no further, except that it accentuates what the submission was in the first place, and that is that it is speculation, as Mr Sandi has also attempted to point out to Ms Ramula.
Now Chairperson, it is really clear and it's understandable, in my submission with respect, that what the family is concerned with here is who killed Msibi, and we can understand that. The difficulty which we have is the applicants here, Mr Schoon doesn't know and the others told you as well that they don't know. And what one must understand and what apparently my learned friend, Mr Makondo, doesn't understand is that there were divisions in the Security Police, you had Section A, Section B, Section C.
Now Section C was the so-called terrorist section, that is where Brig Schoon was the Commanding Officer and that is where Col de Kock fell under, together with his men. They were basically, if I can borrow his expression in that regard, they were the sharp end, they were the executionary part of the Security Police, but when Mr Msibi had been, and this is in fact what Mr de Kock said, after Mr Msibi had been abducted, his task fell away, he had nothing further to do, same with Mr de Kock. Msibi would then go to say, Section D, who was the Intelligence Section under Mr Stadler. Stadler might know what happened to Msibi afterwards. He would certainly have kept contact with him because there was a trial coming up, but not Section C, Chairperson, they would have nothing to do with him thereafter. And therefore my learned friend's suggestion to you that either Schoon or de Kock or anyone else in Section C, failed to make a full disclosure, because they ought to know, has no substance, has no ground for that submission.
ADV SANDI: Sorry, Mr Visser, you've made mention of a number of sections within the Police department, isn't it so that you also had the National Intelligence Service, you also had the Military Intelligence Service?
MR VISSER: Absolutely, Chairperson, I wasn't going to make it more involved than that. Staying just within the Police you could make it involved already, you have the Security Branch on the one hand and then you have the ordinary CID on the other. Once a man is locked up in a cell, he now falls under the CID, not under the Security Branch any longer. What happens to him there is largely dependant on vacancies in cells. Why was he, for example, held in Brits? One would wonder. It certainly had nothing to do with the Security Branch, they wouldn't have sent him to Brits, why would they do that? If they needed him, if they wanted to have anything further to do with him, I'm talking about Section C, they would have kept him here in Pretoria. They could have kept him at Vlakplaas. De Kock will tell you that they would have had facilities there to keep him there. No, they didn't keep him there. Why not? Because it wasn't their function any longer to have anything to further to do with him. And then, as Mr Sandi says quite correctly, you have Military Intelligence who is obviously involved in here, National Intelligence we know was involved here ...(intervention)
ADV BOSMAN: But didn't the Military - I thought this was part of the evidence, didn't they come to fetch him with a helicopter at some stage?
MR VISSER: That's the point, Chairperson, that's the point, and this supports the submission to you that Section C of the Security Branch, had nothing further to do with Mr Msibi. Therefore, they can't now be blamed for not knowing what happened to him or who killed him, they simply don't know.
ADV BOSMAN: Insofar as the two Vissers are concerned, I know that the two Vissers are not your clients, Mr Visser ...(intervention)
MR VISSER: It's not Visser SC, it's Visser S J.
ADV BOSMAN: ... but as far as the two Vissers are concerned, your argument would be the same, that they had a different interest, their interest was the leakage of information through Malaza.
MR VISSER: Well absolutely.
ADV BOSMAN: Yes, okay.
MR VISSER: Oh absolutely, absolutely, Chairperson. Thank you, Chairperson, that's all I wish to say.
CHAIRPERSON: Thank you, Mr Visser.
This brings us to the end of the applications of the eight applicants who appeared before us. I must firstly thank all the legal representatives who were understanding to spend their lunch in assisting the Committee, I thank you very much for that. I must thank you secondly, for the invaluable assistance in terms of argument that we would make our decision, we thank you very much for that.
To thank Mr de Kock, that you were able to tell us what kind of man Mr Msibi was and that he was a man of integrity who would never defect at any given stage. That is actually alluded to by the family as well. We thank you for your assistance therein.
I must turn to the family. I could glean from the argument of your counsel that you had greater interest in his subsequent death. The applicants we had before us had to do with his abduction and probably obtaining information which led to the apparatus found at his house. Other people had interest there. I sympathise greatly with you, because it is generally believed that when people come and make application, you would get the whole story, but the story goes three-quarter way and in, if I may believe that Exhibit a is an affidavit made by your beloved one, he does state that he was released, at least a measure of satisfaction emanates from that, that he did not die in the hands of the police whilst in detention or from the time he was abducted until he was detained. He does say too that, "I was later released". I have great sympathy with you people, but I must congratulate you for the courage you have had, it's not an easy thing, you would have wanted this to be buried. This relates to no less than 12 or more years that those wounds should be re-opened, but you have taken them with great courage. We thank you for your participation in this matter.
We are going to reserve our decision, because in terms of the legislation that brought us into existence, we are required to give a written decision. I sincerely hope this will not be done with undue delay, it will be given as soon as possible, that everybody involved should know which way the wind blew and we shall blow it as soon as possible.
I thank everybody for their participation and the manner in which everybody acquitted himself in this hearing. I must thank you, Mr Visser as SC this time, not as J, to have taken the ...(indistinct) to present the larger portion of the argument. Thank you very much. We adjourn.
COMMITTEE ADJOURNS
