Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: Good afternoon. We thought that our material is here, we do not have, could you bear with us just for another two to three minutes.

The Panel will proceed to hear the applicant, Mr Eugene Alexander de Kock, amnesty application number 0066/96. The Panel is myself, Motata who would be chairing these proceedings. On my right I have Adv Bosman and on my left I have Adv Sandi. I would request the legal representatives to place themselves on record and I will request the legal representative of Mr de Kock to start.

MR HUGO: Thank you, Mr Chairman. My name is S W Hugo, I'm acting and appearing on behalf of Mr de Kock in this matter.

CHAIRPERSON: Thank you, Mr Hugo.

MS CAMBANIS: Thank you, Chairperson. My name is Crystal Cambanis, firm Nicolls, Cambanis and Associates, acting for the victims in this matter, namely Gen Solly Shoke and Charlotte Shoke. Thank you.

CHAIRPERSON: Thank you very much, Ms Cambanis.

MS PATEL: Thank you, Honourable Chairperson. Ramula Patel, Leader of Evidence.

CHAIRPERSON: Thank you. Is there anything before we commence or swear Mr de Kock in, that you may wish to place on record, Mr Hugo?

MR HUGO: No, nothing Mr Chairman, we're ready to proceed once he's been sworn in, thank you.

CHAIRPERSON: Ms Cambanis, anything?

MS CAMBANIS: Nothing, thank you, Chair.

CHAIRPERSON: Ms Patel?

MS PATEL: No, thank you Honourable Chairperson.

EUGENE ALEXANDER DE KOCK: (sworn states)

ADV BOSMAN: The applicant has been sworn in, Chairperson.

CHAIRPERSON: Thank you, Advocate Bosman. Mr Hugo?

EXAMINATION BY MR HUGO: Thank you, Mr Chairman.

Mr de Kock, you are the applicant in this matter which is known as the attack on a transit in Mbabane, Swaziland, is that correct?

MR DE KOCK: Yes, that is correct.

MR HUGO: Your application appears in the bundle from page 1 to page 9, and then there is also a reaction to a request for further particulars, in the form of a supplementary affidavit which you have filed and which appears on page 9A to D, is that correct?

MR DE KOCK: That is correct.

MR HUGO: And then you also request similarly, that the supplementary affidavits which you made dealing with, among others and firstly, the general background, the political motivation, as well as a further affidavit which you filed with regard to Vlakplaas, should also be regarded as incorporated with your current application.

MR DE KOCK: That is correct.

MR HUGO: Very well. Before we proceed with the particulars of this operation, there has also been a request with regard to further particulars, as to precisely which date you could fix to these events ...(intervention)

MS CAMBANIS: Sorry to interrupt my learned friend, when he refers, perhaps he can clarify, the supplementary affidavit to which he refers, which document is that please?

CHAIRPERSON: In terms of the paginated documents?

MR HUGO: Sorry, Mr Chairman, the first supplementary affidavit is these ones, pages 9A to D, those ones were inserted as part and parcel of the present volume. The other supplementary affidavits that I refer to are the general ones that don't form part of this particular affidavit, but you will recall that is the general background, his history as to where he was born and his career details, etcetera. And then there's a further affidavit where he dealt with Vlakplaas, etcetera, which I'm not sure whether my learned colleague has that or not.

CHAIRPERSON: Yes, Ms Cambanis, what happened is that before we started with the applications which relate to Mr de Kock and others, we felt it would be a lengthy process, that is the Amnesty Committee, there was a special hearing where the details which Mr Hugo is referring to, where it was captured, so that when we come to the actual applications, even though there would be different Panels to that, that background is actually captured. So it wouldn't be before you per se, unless you have been involved in others.

MS CAMBANIS: Thank you, Chairperson, the Evidence Leader has referred me to a supplementary document containing 216, which she assures me is the document to which Mr Hugo is referring.

CHAIRPERSON: We are indebted to you, Ms Patel, thank you very much. So that covers your concern.

MS CAMBANIS: My concern is over, thank you Chair.

CHAIRPERSON: Thank you, Ms Cambanis. You may proceed, Mr Hugo.

MR HUGO: Thank you, Chair.

Mr de Kock, we were trying to determine a more precise date for this incident, could you tell us whether or not you cold recall it precisely.

MR DE KOCK: No, Chairperson.

MR HUGO: Could you at least tell us whether or not it was in the middle or the early or the late '80s?

MR DE KOCK: I would say that it was any time from 1986/'87 onwards.

MR HUGO: You say in your affidavit that there was a request for an operation to be launched on a certain prominent person, can you recall firstly, who made contact with you regarding such a request?

MR DE KOCK: It was a person by the name of W/O Labuschagne, who was attached to the Security Branch of Middelburg and he made this request. I conveyed his request to Brig Schoon and he gave me the necessary permission to continue and to assist W/O Labuschagne with this operation.

MR HUGO: Very well. I think you are aware of the fact that the family greatly desires to be made aware of the precise particulars and circumstances regarding this operation. Would you tell us in as much detail as possible, according to your recollection, what the nature of the request was that Labuschagne made to you.

MR DE KOCK: The nature of the request was that this person by the name of Jabu, was responsible for the provision of arms and ammunition and explosives to the members of the ANC who were infiltrating to the Transvaal, and that we had to kill him. That was the request. And we then made the arrangements as such ...(intervention)

MR HUGO: I beg your pardon, before we get to the execution of the operation, let us try to determine further particulars regarding his request. You have stated that there was a request for Jabu, as they conveyed it to you, that certain actions should be launched against him. Did Mr Labuschagne give you any indication based upon what this request was being made to you and from whence they had obtained information pertaining to Mr Jabu's activities and what he was involved with?

MR DE KOCK: There were reports, there were security reports regarding this person's activities, but Mr Labuschagne also had a source who was well connected with this person, not necessarily with the handling or transportation of the arms, ammunition and explosives, but he had access to the person, so he could monitor his movements. The decision was then taken to make use of former ANC members ...(intervention)

MR HUGO: I beg your pardon, let us try to cover this aspect as thoroughly as possible. Did Mr Labuschagne give you any closer particulars regarding who the source was, where he was located and what he was involved with?

MR DE KOCK: No, Chairperson.

MR HUGO: Did he however tell you that there was a source based upon whom he had given you this order?

MR DE KOCK: Yes, Chairperson, he had more than one singular source. The source that I was aware of was the source who would be able to tell us when this person would be at home, if he would be alone, or whether there was a group of persons. I wouldn't be able to tell you that this specific source knew where the arms and ammunition were or what sort of arms and ammunition there was, but this was a source who had access and who could inform us of when Jabu would be at home and when it would be a suitable time for us to launch this operation.

MR HUGO: Did he give you any indication whether or not this source was apparently a member of the ANC at that stage?

MR DE KOCK: No, the source was not a member of the ANC, he may have been inclined towards the ANC, but he was certainly not a member.

MR HUGO: And did he give you an indication of whether or not the source was in Swaziland or in South Africa?

MR DE KOCK: The source was in Swaziland.

MR HUGO: Did he mention any name?

MR DE KOCK: Chairperson, no, he did not mention any name.

MR HUGO: Did you ever ask him for any particulars regarding this source in order to determine for yourself who the person was?

MR DE KOCK: Not necessarily, people were very jealous of their sources and were rather protective as such. One could make inferences, but inferences could be lethal, because one could never be quite certain of such inferences.

MR HUGO: Did you later establish any contact with this source?

MR DE KOCK: At a later stage I did meet a source of his and I understood that this was probably the same source. The source also provided information regarding other ANC members' homes and their whereabouts and when they would be at such places.

MR HUGO: What is your attitude regarding the disclosure of this person as the person who provided the information, here today at these proceedings of the Amnesty Committee?

MR DE KOCK: Chairperson, he was a source and there was a contractual, although not written, but moral agreement that sources would not be disclosed. This simply wasn't done. Many of these sources were most probably taken over just like that by the current Defence Force and Police, and perhaps they may be applied in a different way at present, still at the behest of the State, but on a moral basis, one would never disclose the identity of such a source.

MR HUGO: Do you think that such a person's life could possibly be jeopardised if his identity were to be disclosed?

MR DE KOCK: Yes, I believe so.

MR HUGO: What would your attitude be if the Honourable Committee felt that this could indicate an improper disclosure, would you be willing to write the name of the source on a piece of paper and hand it over to the Committee?

MR DE KOCK: Yes, I would.

MR HUGO: Very well. Mr de Kock, ...(intervention)

CHAIRPERSON: We would appreciate that after probably today, would that be possible, Mr de Kock?

MR DE KOCK: Yes, Chairperson, if I could just be assured that the name would not be spread any further.

CHAIRPERSON: I give you the assurance that the name will remain in my possession.

MR DE KOCK: Very well.

MS CAMBANIS ADDRESSES: Chairperson, I'm totally bewildered by this attitude. We all know the Act off by heart after all these years, we all know that the requirement is full disclosure. The entire point of these hearings taking place is that

the entire truth be told, not only to the victims but to the South African public at large. There is absolutely no point of victims or their families attending these hearings to hear the truth and to then decide whether they continue in their opposition or not, based on the requirement of full disclosure if the legal representatives and the victims themselves are not given the name.

CHAIRPERSON: Would you - firstly, just to ask you this question, would the name in knowing the Act, also fall within the ambit of full disclosure, just the name, but if the details are given, it's just the name that is withheld? I'm asking you this because the safety of these people is mentioned and again, Mr de Kock has just said some of the structures of the present government like the Defence Force, for instance, such people have been employed. In the name of full disclosure and reconciliation, wouldn't we be jeopardising the positions of such people?

MS CAMBANIS: Chairperson, there has to be a balance in this process. My client is presently also serving in a military position in the present South African SANDF, his safety is also a factor. One of the reasons as well is that the Swaziland community, like I'm sure many of the other States, is a close-knit community, his entire interest and that of his family is to know precisely this information of who the informers were, who the, the command structures of what was happening in Swaziland, and it is also in regard to his personal safety, because he's probably also dealing, or may be dealing with these people and South Africa's entitled to know who's who. Or else, with the greatest respect, Chairperson, I don't know what the purpose of these hearings is, other than this.

CHAIRPERSON: Let me hear Mr Hugo.

MR HUGO ADDRESSES: Mr Chairman, the position is quite simply this. During this whole process this thing has come up on numerous occasions and as far as I know it was never, never decided by the Amnesty Committee that the names of informers should be divulged. I was involved in a hearing in Durban where this also came about and to the best of my knowledge it was also resolved on the basis that the name would be written down, be given to the Amnesty Committee and that they would then decide as to what they're going to do with that information. With the proviso though that the particular person or the particular name that was mentioned, it was agreed by the parties that that person's life could be in danger and eventually it was then decided that the matter would be postponed to enable that person also to be afforded the opportunity to be subpoenaed and

to have insight into the record and decide as to whether he or she was prepared to come and testify. But the Amnesty Committee was quite adamant that they were not going to take the responsibility of divulging that particular person's name and endangering that person's life.

We are obviously in a tight spot here in the sense that we want to give as much information as we can about this, because if we don't do that, it could be to the applicant's detriment, but then on the other hand there is this moral duty not to divulge it in open Court here. So the best that we can do is to write it down and to give it to you and then the Amnesty Committee must decide what they're going to do with that.

CHAIRPERSON: With that in mind, Ms Cambanis, the last portion of what Mr Hugo has said, would you agree with that kind of arrangement? And again, I must point out that if you go through our decisions, we may merely make mention of an informer, we have never disclosed names of informers. I don't know if you are aware of that.

MS CAMBANIS: No, Chairperson, I'm not aware of that and I will ask, after I've addressed you now, to take a short adjournment to take instructions on whether we should even continue in this. But what I would like to place before this Honourable Committee is that Gen Solly Shoke is a member of the ANC, at the time he was a member of Umkhonto weSizwe, his wife is similarly a member of that organisation.

In preparation for the TRC process, Gen Shoke was one of the people who was personally involved in compiling the submissions submitted to this Commission on behalf of the ANC, which documents we all know run into hundreds and hundreds of pages. There are annexures listing names, there are - I do not have the bundles now, how many annexures in which the ANC made every attempt to disclose every bit of information that they could, where it was not certain, they put an annexure saying that we're not sure, where it definitely wasn't then, they disclosed this. It is not the fault of Mr de Kock that his leadership has failed to do that, I do not hold Mr de Kock personally or in any way responsible that there is no similar documentation that has come from one of the other forces in this process, but I would assume that the intention of this is that at least Mr de Kock, in the absence of his leadership having submitted documentation and in coming to this Committee asking for amnesty, would at least himself be prepared to say what is within his knowledge.

CHAIRPERSON: Whilst he was talking about the moral contract, he said even the person who was brought to him, he is not positive, but he was told this is so and so. Am I following correctly here? I think that was his evidence.

ADV SANDI: I thought his evidence was to the effect that the name of the informer was not given to him and he subsequently met a person whom he used as an informer and he suspected that this could have been the informer Mr Labuschagne had spoken about.

CHAIRPERSON: I'm just looking at my notes now, that is correct, the name was not mentioned to him, but he suspected. Would suspicions take us any further, because we might just be harping on a wrong tree, or barking up one?

MS CAMBANIS: Judge, I'll ask for a short adjournment, I would like to take instructions from my client as to whether they wish to proceed or whether they wish to withdraw their participation.

CHAIRPERSON: Very well, we'll take a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

EUGENE ALEXANDER DE KOCK: (s.u.o.)

CHAIRPERSON: Thank you. We have reconvened after a short adjournment requested by Ms Cambanis, to consult with her clients. I don't know if you have finished your submissions.

MS CAMBANIS: Thank you, Chair. And I thank you, it was much longer than five minutes, I appreciate the Committee's

indulgence. We view this as a fundamental aspect to the process. My instructions are that the name of the source must be made public and known to the family at these hearings.

CHAIRPERSON: Thank you. Ms Patel?

MS PATEL ADDRESSES: Thank you, Honourable Chairperson. Honourable Chairperson, it is my respectful submission before you as it has been before other Panels or other Committee Members, that full disclosure in my opinion, requires that all necessary and material information is revealed to us. It is my submission that the withholding of information of this nature, certainly detracts from that requirement. I know that in the past we've taken a very narrow approach to what full disclosure means ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone)

MS PATEL: ... in the sense that it has often been required only for the applicant to reveal specifically what he has done and not necessarily what those perhaps in his department would have done in a specific instance. So in that sense I refer to the application of the meaning of full disclosure.

I do however believe and share the sentiment along with that of many of victims who I've represented in the past before the Amnesty Committee, that it is a source of great ...(intervention)

CHAIRPERSON: I would listen only to submissions, not beliefs.

MS PATEL: Alright. It is my submission then, given my instructions from clients in other matters where we have come across a similar position where applicants have refused to reveal the names of the informers, they have left the process feeling done in, feeling that the truth hasn't been revealed. And in essence, if one looks at the Preamble to our Act, it is our primary objective to ensure inasfar as possible, that the truth is revealed, Honourable Chairperson.

I appreciate however that in this situation, given that Mr de Kock has said that he is not absolutely certain that the person who he liaised with was in fact the informer in respect of the specific incident that we are dealing with now, that that may change the way we deal with, or approach this matter. However, I do believe that in principle, applicants ought to be compelled to reveal the names of informers. Thank you.

CHAIRPERSON: Just to ask you since you referred to the Preamble of the Act, I would just say, starting from the fifth line after the semicolon

"The granting of amnesty to persons who make full disclosure of all relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past during the said period, affording victims an opportunity to relate to the violations they suffered"

Would that, when you say all material facts, and say the name would fall within that category of all relevant facts? Mr de Kock did not say with certainty that this was the person, he's acting on suspicions as well and I may be wrong, I did not hear him to say he confirmed with Labuschagne whether this was the person whom he referred to as his source.

MS PATEL: Certainly Honourable Chairperson, that is why I said I appreciate that the facts of this case may lead us, or you, to consider factors as in the safety of person, revealing the name of a person whose life could be in jeopardy, where we are not absolutely certain that that is in fact the person who was the informer.

My submission were made to you on the basis of a principled submission that generally the names of informers where we are certain or where the applicant is certain, ought to be revealed to us as part of the onus on the applicant in meeting with the requirements of full disclosure.

CHAIRPERSON: Thank you. I'd rather handle this unconventionally, I must be honest with everybody. And again I would say on the basis of what Ms Patel has said, that Ms Cambanis will have a bite and Mr Hugo will have a bite, but we'll start with you, on the basis of what Ms Patel has said and my questioning of Ms Patel.

MR HUGO: Mr Chairman, sorry, I'm not sure as to exactly what, do you want to me to say what our view is as far as this situation is concerned?

CHAIRPERSON: No, no, I have read a portion of the Act, that the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective, would that inter alia include even the giving names, would that be material? And on the basis again, Mr Hugo, that my understand of the evidence thusfar, is that Mr de Kock is not certain whether this was the informer which Mr Labuschagne referred to.

MR HUGO ADDRESSES: Mr Chairman, as far as that is concerned, Mr de Kock said he will testify to that effect, that he had some dealings with this particular person, that made him believe that this was the informer. So subsequently it was fairly sure and certain that that was the informer that gave the information to Mr Labuschagne. So that will be the evidence if needs be.

Can I just say, Mr Chairman, as far as the relevancy is concerned, I'm also acting for some victims and I've been giving

this a bit of thought. Some of the victims could, for argument's sake, say that they want to cross-examine this particular informer, with the view to try and establish for instance, whether this whole operation was not a set-up on behalf of the Security Police to get money for instance. So there are various possibilities here. So I think the relevancy can be accepted that it could well be very relevant to get that sort of information.

But I do want to say is, we're also not only busy with truth but we're also busy with a reconciliation process and if a person, if that name is divulged, I'd think it will be very difficult to have a reconciliation process. On the other hand I suppose you can also argue that that will enhance the reconciliation process if they were to meet. I don't know.

But can I just say from our point of view and my personal point of view, I think I'm duty-bound not to disclose that name in open Court here. Our approach is that we've written the name down here on this piece of paper, we're quite happy to give it to the Panel and the Panel can then decide as to whether this is necessary to be divulged in open Court, with the consequences that flow from that. We're really between a rock and hard place here, in the sense that we're asking this Committee to grant us amnesty, but we understand and appreciate the dangers that are inherent in divulging this information. So we feel that we should leave it in the hands of this Committee to a large extent.

CHAIRPERSON: Thank you, Mr Hugo. Would you have a bite again?

MS CAMBANIS ADDRESSES: Chairperson, we would find it highly questionable about why Mr de Kock would not want to disclose the name, but I think the Chair is asking specifically about full disclosure, whether it's a relevant fact, is that the question?

CHAIRPERSON: That's right.

MS CAMBANIS: Going to full disclosure.

Chairperson, I have no words to say, except it speaks for itself. Yes, it is a relevant fact.

CHAIRPERSON: I was asking that because to me it doesn't. Otherwise I wouldn't have.

MS CAMBANIS: Chairperson, for example, in the course of cross-examination, the source is in all probability known to members of the ANC, it would be someone that we would have come across. The only way that we can find out whether Mr de Kock has made full disclosure is to test the veracity of the statements he making. If that source turns out to be someone that we know died in Moscow in 1976, then it would have a great impact on his application. It goes to cross-examination

and testing the veracity of Mr de Kock's disclosure, and to that extent it is crucially and essentially relevant. Thank you, Chair.

CHAIRPERSON: Thank you.

MACHINE SWITCHED OFF

MACHINE SWITCHED ON

CHAIRPERSON: ... and we have been told from time to time that ...(end of side B of tape)

... who are under the Department of Correctional Services. We shall reserve our ruling and we'll give it first thing tomorrow morning. We'll start at nine promptly to save on time, that probably what we had to do today we can catch up on that.

MS CAMBANIS: Chairperson, thank you. I have an unusual request given the situation. Mr Solly Shoke has asked if he may shortly address the Committee on this point. I don't know if that will be allowed.

CHAIRPERSON: I suppose in the interests of this process, that we seek to reconcile, that strictly speaking you wouldn't have this in a court of law, but since this is an Enquiry, we would indulge him.

MS CAMBANIS: We thank you, Chair.

GEN SHOKE ADDRESSES: Thank you, Mr Chair.

I would like to place on record that I've got nothing against

Mr de Kock as a person, but I come in fact from the former liberation movement, I was party on behalf of the ANC, on drafting a document where we disclosed the names of people who were involved in operations and we are fully aware of the implications or the consequences that it might have on those names, but however we disclosed that for the purpose of reconciliation.

During the hearings of the Maseru raid, the name of an informant was disclosed and I think Mr de Kock was party to that and I appreciate that. I'm a victim in this particular instance and I don't begrudge anybody, but I would like to know who the informants were. For the mere fact that Mr de Kock made an application for amnesty, I believe that in fact it is in his best interest to disclose other people who participated with him in this operation.

You've made mention of Labuschagne and for your information I've met Labuschagne and I know Labuschagne has done in the past and I don't begrudge him, despite the fact that he's not here today. And I see no reason why this particular name is being kept secret, because at the end of the day, in my own opinion, I feel that informants of this nature, if they are not exposed, they are susceptible to blackmail. They can later be used for other deeds, because people will always blackmail them, that you no, either you do this or I expose you. Thank you.

CHAIRPERSON: Thank you, Mr Shoke. Just to put the record straight, we just stopped at one name, I can assure you that the evidence that we believe would be led, would impact on the attack itself, but right now we are just at the stages where information was given by one person and that's where we are, the name of that person, whether we should give it, what our ruling would be in that respect. But obviously I can assure you that when he testifies we would want him to say with whom did he execute the operation. Thank you for your input, we are indebted to you.

Thank you, we adjourn.

COMMITTEE ADJOURNS