MICHAEL BELLINGAN - AM 2880/96
CHAIRPERSON: For the record, it is Tuesday the 20th of April 1999. It is the continuation of the amnesty application of Mr Michael Bellingan. The Panel and the parties are as indicated on the record earlier.
We have adjourned yesterday to receive the parties' submissions. Mr Hattingh have you got any submissions on the matter?
MR HATTINGH: Thank you Mr Chairman, firstly I would just like to put on record again that I am taking the Committee up on the invitation to supplement my submissions which I am going to make today in the form of a supplementary document.
This is being done, I am only stating this for obvious reasons on the record, once again that all through this hearing and my involvement of this matter, I was playing catch up and whereas one would normally expect the applicant to be in the advantageous position to be very well prepared and very well represented and looked after, I think we all have to realise that in fact this is not the position in this matter.
But having said that, I will just briefly deal with the matter to lay a basis for the application, which will then be followed up with a more complete and supplementary submission.
CHAIRPERSON: Yes, that is in order. Adv Hattingh, that is how we understood the position in the sense that you are afforded an opportunity to supplement the outline of the case.
Mr Chaskalson you had undertaken to do some logistical arrangements for us, I assume that you have that in place and that you will inform us accordingly?
MR CHASKALSON: Yes Mr Chairman, we had discussed it last night, and we have come up with a rough outline and we were going to finalise it today. At the moment, we are looking roughly towards the end of next week for the submission, possibly the Thursday, getting all the information circulated to the other parties on the Friday and then allow everybody else a week to respond.
CHAIRPERSON: Yes, that doesn't sound too far out of the picture that we ourselves had sort of formed about the matter.
Perhaps I can also just before Mr Hattingh, before you continue, just indicate that we will be sitting until twelve noon and we will then take a 30 minute tea/lunch break, whereafter we will reconvene and we will sit until we have completed receiving the arguments if any remain at that stage. Mr Hattingh?
MR HATTINGH IN ARGUMENT: Thank you Mr Chairman. From the outset, I would like to state that the application of the applicant and the requirements of the Act had been dealt with extensively in his application, his written application.
I would merely like to state that when one has regard to Section 20 of the Act, the Promotion of National Unity and Reconciliation Act, that the requirements of the Act were complied with, the submission of an application.
And that we, one should then look at the further requirements of the Act to enable this Committee to consider whether amnesty should be given or not.
I would only like to make one remark in respect of the legal interpretation of the requirements and how it should be interpreted and I would then prefer to expand on that in my further submission or supplementary submission, and that is that for the better part of it, these requirements and the way it is to be interpreted, is more a subjective issue than an objective issue, meaning the political motive, authority, reasonable grounds for belief.
Most of the requirements leans towards the subjective side rather than the objective side, and when one keeps that in mind, it is important to keep it in mind when one deals with the issues at stake here and the interpretation of the applicant's state of mind, and his motive and the completeness of his application.
The applicant made or applied for amnesty for various acts, however this Committee deals only with three of those acts, which the murder of his late wife, is the most obvious and most important matter. I am not saying that the NUMSA matter is anything less important, but my respectful submission would be that the Committee's consideration of this hearing, will mostly turn on the murder matter and the credibility and probabilities and the explanation thereof.
I would like to submit that the applicant on the face of it, at least, made full disclosure of all relevant facts with regard to all three actions for which he applies for amnesty, and I will deal with that further. He has made full disclosure not only in his written application, but he has also made further and complete disclosure in regard to his testimony at this hearing.
The first issue that springs to mind which we have to deal with is the status of the annexure or the discussion document to the first application contained in Bundle 1, pages 127 or 128 and what followed thereafter.
In this regard, I have already indicated the time when this was considered during cross-examination and re-examination, that my submission would be that we have to deal this on the basis that we on the one hand, have to discuss or consider the status of this document which I once again would call for practical purposes and to identify it, the discussion document, not to say anything more or mean anything by calling it a discussion document, just for identification purposes.
The status of this document is in dispute from the side of the Evidence Leader on behalf of the TRC and the family, the representatives on behalf of the family of the deceased, it is submitted that this document in fact, the status of this document is in fact that of an annexure to the application, the first document that was forwarded to Cape Town, signed by the applicant on the 8th of October 1996 and then forwarded shortly thereafter to Cape Town.
However, this is in dispute. The second question then would arise as to what the relevance of this document is and the reason for its existence. That Mr Bellingan, the applicant, explained at length during cross-examination and re-examination as well obviously as in evidence in chief.
Now we are dealing first with the status of this document, Mr Chairman, it is by now common cause that even though the first document signed by the applicant on the 8th of October 1996, mentioned in paragraph 11 thereof, see annexure, it is common cause that an annexure was not attached to that document and that was the position for at least two months until some time end of November, December when a further document came into the possession of the TRC.
The circumstances under which this occurred, should be looked at. Mr Kjellberg testified he was the courier of this document. He explained that he during the course of his contact with Mr Bellingan the applicant, he on various occasions received hand-written notes, the original thereof, he considered the contents thereof and then returned it to the applicant at some stage.
With regard to the hand-written document which is in fact word for word the basis of the typed document which we then find in Bundle 1, Mr Kjellberg tells this Committee that his recollection is that he came into possession of this document either in a hand-written or typed form, towards end of November, December 1996.
The applicant's version all along is that he provided Mr Kjellberg and his colleagues with hand-written notes with regard to his own position and further investigation of other matters. Mr Kjellberg cannot take it any further to say that he received a document, either hand-written or typed, during that time. He can't even remember whether he received it directly from Mr Bellingan or whether, through his colleagues.
He agreed that at the time this document was not signed and that in fact prompted him to consider and discuss this with some of his colleagues at his office, the fact that the document was not signed at all.
All of this already creates the impression that perhaps there could have been a misunderstanding with regard to the purpose and the status of this initial document.
We then get further explanations from the TRC with regard to two applications, separate files, documents being lost. However, towards October 1997 the TRC writes a letter to Attorneys Strydom Britz in which they say we are in possession of your skeleton application, but there is no annexure available to us.
Now, Mr Chairman, my submission would be that this letter from the TRC stating the position at the time, is in fact confirmation of what the status of this document is.
Even though Mr Kjellberg considered it to be an annexure to the application and even though Mr Kjellberg in his report, dated 15 January 1997, said that the version of Mr Bellingan with regard to the murder of his wife, can be found in that document, which he considered, Mr Kjellberg, he considered to be the amnesty application. It was clear that this document could not have formed part at the TRC of the applicant's application as late as October 1997.
Until such time when Strydom Britz, finally towards November 1997 submitted the complete annexure to the application.
CHAIRPERSON: Yes, of course the other reasonable possible explanation for the TRC letter, is the result of the document in question, having been misplaced or misfiled?
MR HATTINGH: Mr Chairman, yes, that would have been a possibility, however, one then should have regard to the fact that the original of this document, like all other notes that Mr Bellingan, the applicant submitted or forwarded or given to Mr Kjellberg, this note was returned to him in its original hand-written form.
If this was ever meant to be part or a - part of his application, why then return the original document to the applicant and not keep it with his application in Cape Town?
I mean the obvious thing is that one would like that document to be signed and properly signed under oath. This was not done. This document came, found its way to this hearing in a form different than the form that the applicant himself prepare it. The original thereof was returned and the only reasonable deduction to be made in that regard, would then be that it was at some stage not considered to be his application or the fleshing out of his annexure as it was returned in its original form to the applicant.
If there was a reason to believe that this was his application, then correspondence should in my submission, have been forthcoming from the TRC in their investigations, asking the applicant please let us complete the formalities on this application, we see that your application or the annexure thereto has not been signed.
We are in possession of the original thereof, but it is not signed, please just get this sorted out. There is no explanation from the TRC or the Evidence Leader's side as to why this document was never signed.
In the final analysis in this regard then, I would submit that there are too many things loose which neither Mr Chaskalson on behalf of the TRC, as being the Evidence Leader, nor Mr Kjellberg, being the Investigator could explain around this document and its existence and the way it was considered to be annexed to the application even though the original thereof had been returned to the applicant.
Having said that however, I believe that even though the status of this document should be in dispute and that it should be taken out of the application scenario and not be considered as part of the application, this document is still a document which exists and which should be dealt with.
Applicant has got to explain his reason for bringing this document in existence, which document then clearly on the face of it, presents a contradiction with regard to the murder of his wife.
CHAIRPERSON: Yes, but before we reach that particular point which is quite correct, no matter what this thing is, whether it is an annexure or a discussion document, we would have to consider how, if at all it impacts on the credibility of your client.
What do we do about the testimony of Mr Kjellberg that your client in fact confirmed that this was the annexure to his amnesty application in subsequent discussions?
MR HATTINGH: Mr Chairman, clearly there is a conflict between the evidence of Mr Kjellberg and the evidence of the applicant in this regard. The applicant states clearly at the time and a transcript of his discussion of the 7th of March 1997 was prepared and in fact submitted to this Committee and has been accepted at this stage to contain what was said at the time.
Applicant says that all along I told Mr Kjellberg that I needed to still do the fleshing out of my application. There was no indication in that discussion of March 1996, that was the time when two other Attorneys were involved, an Attorney and an Advocate were involved in the preparation of the fleshing out and the new Attorney Strydom Britz were on the horizon to assist the applicant.
In that discussion there was clearly no indication from the side of Mr Kjellberg that in fact, there was no need for you to go any further, you have already submitted an application. All we need to find out from you is the name or names of the two people who were also involved in the murder.
As far as Mr Kjellberg is concerned, in his testimony that was the main issue, he needed that information and nothing more. But clearly that is not reflected in that discussion of the 7th of March 1997.
CHAIRPERSON: That seems to be one of a number of discussions and it appears now as if that is the only record although all the others have also been recorded, it appears now that is the only record that there is about discussions, the others seem to have disappeared.
There seems to have been a number of other discussions and Mr Kjellberg has indicated that in his discussions with the applicant, the applicant had indicated that that is in fact the annexure to his application.
The question is do we reject that evidence as untruthful or what do we do with it?
MR HATTINGH: Mr Chairman, no, I appreciate the problem, however the applicant denies this. He says no, Mr Kjellberg is wrong, I never admitted to him that this was my application. That is the applicant's version.
Now the problem that I have is Mr Kjellberg himself is not a witness who should be believed merely because he is an official from the TRC. Mr Kjellberg already acknowledged and agreed that he can't even remember the circumstances under which he received this document from the applicant, initially the impression was created that he in person, received this document from the applicant.
That was the impression created by Mr Chaskalson when it was put to the applicant. It however later transpired that it was in fact not the position and that Mr Kjellberg couldn't even remember the circumstances under which he received the document, apart from saying that when it became the cut off date for the amnesty applications, he received a document and he considered it to be the application or the fleshing out and he then forwarded it to Cape Town.
Clearly, I am not submitting that Mr Kjellberg is not a credible witness, what I would submit is that there are lapses in his memory with regard to this document. The possibility may very well exist that he is now making a reconstruction of what occurred with this document and why it found its way to the TRC, he couldn't even tell us why it was typed although he did concede that the documents that he did receive from the applicant, in hand-written form, were typed and then the original would be returned to Mr Bellingan.
But Mr Kjellberg, without saying that he is not a, we shouldn't believe him, his credibility is at stake, we can merely rely on the fact that he is a witness who has to testify about something which did not clearly at that time, was the most important thing for him. He was not involved with the application of the applicant, or the investigation of the application. He was merely involved in peripheral matters, other matters on which the applicant could provide him some detail.
In those circumstances I would submit that on the probabilities, particularly in light of the fact that this document, the original thereof, was returned to the applicant, and in particular in the light of the TRC at some stage of 1997, said we are not in possession of such an annexure. The probabilities favour the applicant. The applicant's version of this document was made available, but the purpose thereof, or the status thereof, was not that of annexure or part of my application, but merely as a discussion document.
All along, as shown in the discussion or the transcript of the discussion of the 7th of March 1997, I still wanted more information before, and assistance from Attorneys, before I could proceed on the preparation of my annexure.
CHAIRPERSON: Yes. We are with you and it is as you quite rightly indicated, it is something that we must decide. A dispute that we must decide in the light of the probabilities, in the light of the credibility of the witnesses, etc.
Now, assume in favour of your client that this was indeed a discussion document, how do we deal with this?
MR HATTINGH: Mr Chairman, I think that is to say that this annexure is not, the status of this annexure is not part of his amnesty application, in my submission doesn't really relieves the applicant from the predicament that he finds himself in with regard to the contradictory explanation with regard to the murder of his wife.
The relevance of this document remains and as important as whether it is in the status of part of his application or not, is this explanation as to the existence of this document.
The applicant dealt with this document. He explained why he brought into existence a document which was not quite the truth. Mr Chairman, I am not going to summarise his explanation in this regard. If necessary I will do so in my supplementary Heads. I am going to restrict myself by saying that he did give his explanation in this regard to the effect briefly, that he wanted more information, he wanted to implicate people to put Mr Kjellberg to work, to get information back. He was sitting in jail, he wanted more information and he wanted to know what other people were doing about their applications, and their involvement in matters. He needed to get back information and it was for that purpose that he prepared this untruthful version of the murder of his wife.
Having said that, there is however something else that I would like briefly to touch on, and that is that we should always bear in mind the fact that someone at some stage tells a lie, doesn't mean that he is going to continue telling lies about a particular incident.
ADV BOSMAN: Mr Hattingh, let's assume that we accept the explanation of your client, isn't this a gross abuse of the general process of the TRC, all covered in one piece of legislation?
MR HATTINGH: Mr Chairman, I think if we - for the applicant to make application for amnesty, the Act is clear as to what he should do, what the requirements are. The Act doesn't go any further and say that if we do find that you didn't play open cards with us with regard to any other matters, then we are going to penalise you with regard to the matter on which you make application.
That is not stated in the Act. However, the suggestion that perhaps his putting Mr Kjellberg on a wild goose chase, and providing him with false information, obviously we all feel a bit unhappy and awkward about him doing so. But I would suggest that for this very reason, the fact that someone may even in a criminal trial, in the one and very same trial and giving evidence perhaps, give a lie or an explanation which turns out not to be the truth with regard to one issue, it should not follow as a matter of course, that we should then reject all of his evidence.
My submission would be that irrespective of whatever lie he told to any other party, any other forum during the course of the past, eight years since September 1991 and even irrespective of what he told Mr Kjellberg and the false information that he provided him, we have to look at what the applicant provides this Committee in this application that is to be considered by this Committee at this stage.
We should not have regard or place too much weight on whatever was said at the time of the trial, the inquest and even as late as putting the Investigator of the TRC on a false route.
CHAIRPERSON: Mr Hattingh, isn't that exactly the difficulty? Isn't it fatal to the overall credibility of an applicant if he tells a blatant lie at a time when he would reasonably be expected to be playing open cards?
Isn't that fatal to his explanation that this was just an innocent lie, he was just testing the waters? You know, at a time when it is clearly, and he understands it too, he says it in his testimony, he says look, the Courts, I wasn't really at ease with that, so I was lying there and that was my attitude, but when it came to the Commission, I knew that this is my one chance, by playing open cards, to get this thing off my back.
Then he goes and he lies on a critical aspect of his case, on the murder? Isn't that fatal to his general credibility?
MR HATTINGH: Mr Chairman, I have to agree with you to some extent. My submission would be that no, this is not an abuse of the process or even if it is considered to be an abuse of the whole TRC Act and the process and the purposes of this Act, to at this, even at this late stage, provide false information to the various agents of the TRC and the various structures, that may be so.
We may all be very unhappy about it. I still feel that the fact that there was abuse to the process, shouldn't per se then mean that the applicant is not entitled to spill the truth out at his application and say now I want to tell the truth. I don't think he should be penalised merely for not telling the truth previously, however, I have to agree that not having told the truth at the time of this discussion document, during the discussions with the agents of the TRC, this very well does reflect on his credibility, and it is for this reason that the applicant has to explain this.
It is for this reason that I am just going to refer to his explanation in this regard, why and for what reasons he in fact submitted those lies to the TRC at the time.
CHAIRPERSON: But why should we accept that explanation, why should we accept that by lying, the applicant had placed himself in a better position than by telling the truth, because on his version, he was the only one that was involved in this murder, there was nobody else involved?
He couldn't possibly have implicated anybody directly in the murder of his wife. Why do we have to accept his explanation about the reason why he told this sort of innocent lie?
MR HATTINGH: Mr Chairman, perhaps if I could just take it from the other side. If there is objective support for the truth and correctness and completeness of his application before this Committee, if we just accept that for one moment as a fact, that we accept that he is now telling the full truth, that it was only him and him alone that was involved in this murder and it occurred as he described to this Committee, and he gives full disclosure about this event.
If we accept that as a fact, what then is the relevance of his prior lies and testing the water and preparation of false documents, even the document that was submitted as late as Friday morning/afternoon by Mr Rautenbach.
MR HATTINGH: If we now objectively know that he is telling the truth.
CHAIRPERSON: No, no, the question is, the question about the acceptance or rejection of his explanation for the innocent lie, lies in the fact, the importance lies in the fact that if we reject that, he was lying to this Panel too. He was lying right up to the time of presenting his application to us.
That is the relevance of deciding whether he was lying to us or not.
MR HATTINGH: Mr Chairman, perhaps I didn't put it as clear as I wanted to. What I say is, the mere fact that he lied, doesn't mean per se that he is not entitled to in the final analysis, tell the truth, and for the truth then to be accepted and for him to get amnesty on this matter.
However, I do not for one moment say that the extent of his lies should not be considered in weighing up his credibility and coming to a finding whether this Committee can now with any certainty say on the balance of probabilities, that we now accept what he is telling us today, in this hearing and in his second annexure or the more complete fleshing out, is in fact the truth.
I am not saying that it should not impact, impact seriously on the credibility of the applicant and the version that he is now submitting to this Committee.
I accept that and all that I can say is that the applicant has given his explanation for his previous lies, and this Committee has to consider that explanation not only against the background of all his past lies, but also against the background of the probabilities of him today, telling us the truth about the real events of the murder of his wife.
I do not want to revisit this particular point, but I just think it is important to once again say that the mere fact that he lied, in itself doesn't mean that he is now lying again. One should consider it on the basis of his credibility and if one finds that the old lies is tainting his present credibility, then so be it and the Committee has to make that finding.
CHAIRPERSON: No, we understand that.
MR HATTINGH: Thank you Mr Chairman. Thank you Mr Chairman, I may just add something else, that is on the instructions of the applicant, the whole issue of this document was dealt with from day 1 during the course of this hearing, and at the time there was an application for the removal, the striking from the Bundle of this document.
At the time the Committee, Mr Chairman, you ruled that, or you made an interim ruling that you could not rule on this document pending the applicant explaining the circumstances of that document.
Now, the applicant instructs me that whereas this ruling has not yet been made, that I should in fact address this Committee and ask for this document to be struck from the Bundle of documents altogether on the basis that it was, it had not been proved by the Evidence Leader, neither through the evidence of Mr Kjellberg or anyone else, that this document has in fact formed part of the application of the applicant.
For that reason, that document should be removed from that Bundle of documents. I have explained to the applicant that even though we may deal with the status of this document, there is however the other issue and that is that the document was made available at some stage, to the TRC and even so applicant's attitude is that once it is struck from the Bundle, then it should be struck altogether and it should not be something to be considered or to be taken into consideration by this Committee in considering his credibility or not.
I just want to make that point that should this Committee in the end, make a finding that perhaps this whole issue of the ruling which was not yet finalised with regard to the document, should then be dealt with.
CHAIRPERSON: Yes, we know that and we will do that. That application was premised on the argument that it does not form part of the application submitted by the applicant, in other words, that argument was on the basis that it is certainly not something that the applicant is placing before us to decide. But you have rightly indicated, the document has reached the Commission and it would obviously be a relevant document because it relates to one of the critical factors, the murder, to this application.
This of course would be the second question about the admissibility, let's call it that, of that particular document.
But we will bear that in mind when we decide the point that you have reminded us about.
MR HATTINGH: Thank you Mr Chair. Perhaps I should just conclude this whole issue about the document then by saying that we do not accept that this document should in fact be used, even as far as tainting the credibility of this applicant and obviously from the side of the Evidence Leader and from the side of the Legal Resources Centre, they will address you in this regard for the admissibility of this document. I think it should suffice at this stage for me just to say that we do not admit that document as being admissible for the purposes of this hearing and that it shouldn't form part of this hearing for consideration by the Committee.
Mr Chairman, I am going to deal with a few issues and I would appreciate it if you would during the course of that, post questions to me and that would in fact assist me in dealing with this.
The one thing that I would like to, we all know the Act and what it contains, the requirements that are contained therein. The applicant will rely on the fact and I am not going into the details of those facts, but in his application, it is extensively dealt with and I think the mere existence of the TRC and your Committee and these hearings is testimony to the fact that at a time in the past, in the history of South Africa, we had a political problem, there is a political past.
There were various parties, conflicting interests and Mr Bellingan found himself at the time of the commission of these acts on the side of the Security Police which was an arm of the government of the day and the applicant clearly supported the National Party, which was the government of the day.
CHAIRPERSON: If it would assist you Mr Hattingh, you can accept that this Panel has dealt extensively in various context with that political conflict, and we have also had and heard a vast volume of testimony about Security Branch and Security Police involvement in that conflict.
The attitude that the Security Police at the time adopted in favour of the governing party and the government of the day and so forth, so you don't need to be concerned that we are not with you on that.
MR HATTINGH: Mr Chairman, perhaps I can just ask whether it is also common cause from the side of your Committee that the Security Police partook on various occasions in illegal actions in pursuing the motives and the purposes of the government of the day? Is that also something which is already sort of common cause and something that can be accepted as a fact?
CHAIRPERSON: Perhaps if I could focus the argument, the address, you might want to relate that aspect to the facts of the murder and deal with it in a concrete sort of fashion. I didn't want you to expand your energies on dealing with it on a general basis.
You can accept it, you know, there is no problem with that, but can you apply it to the particular hard facts before us?
MR HATTINGH: Thank you Mr Chairman. The first thing I would just like to state is I think from not only the evidence of the applicant, but also from the evidence of Gen Erasmus, it is clear that the applicant found himself wholeheartedly involved in the matters of the Security Police.
That he would even go to the extent of perhaps denying his wife and his family of certain benefits in his efforts to serve the purposes and the cause of the Security Police, that is something that is a fact and which we can all accept and I don't think there is anything on record to the contrary.
I am not saying that that is also the cause and the reason and the justification for killing his wife, however what I say is that this applicant was a very experienced and valuable asset to the Security Police during his career with them.
When dealing with the requirements of the Act, it is also important to state what extent the person, the applicant, acted within the cause and scope of his duties and within the scope of his expressed or implied authority.
That is now referring to Section 20(2)(b) and also with relevance to this applicant, Section 20(2)(d), where any employer or member of a publicly known political organisation or liberal movement, the course and scope of his or her duties.
And then also Section 20(2)(f), any person referred to in paragraphs (a), (b), (c) and (d) who on a reasonable ground believe that he or she was acting in the course or scope of his or her duties, within the scope of his expressed or implied authority.
Then the other issue is obviously whether a person when acting as stated, did so not with a purpose of any malice or for personal gain, that is stated in Section 20(3)(i) and (ii).
Dealing with this, and I just want to deal ... (tape ends) ... the evidence of the applicant is that clearly at the time when he committed this murder, his motive was absolutely not personal gain.
Now, we only have the evidence of the applicant in that regard, and perhaps one would say if in the circumstances where his credibility is in the process of being considered by the Committee, that you may very well have your doubts about his evidence in that regard, however, his evidence of his motive at the time that he did not commit it for personal gain, is in fact supported by the fact of what personal gain subsequently transpired.
I immediately wish to point out to this Committee that even though at some stage Mr Bellingan made use of some of the funds that became available subsequent to his wife's death, he made use of about R45 000 which he paid to his Attorney at the time when he was charged with the murder, being legal fees and bail money, and even though there were subsequent difficulties with regard to a policy which was ceded to his wife, Renatha, which now transpired also to be the basis of some friction or tremendous friction between the applicant and his present wife, to the extent that the applicant had to instruct an Attorney to forward a letter to his present wife, regard to the financial matters and certain threats that were made and extortions with regard to documents and statements which she did not want to provide him with.
Against that whole background, I would submit that the bottom line of that is that it is clear that the applicant never intended to gain financially from this event, the murder of his wife.
He did not gain financially, he clearly stated to this Committee he lost everything.
CHAIRPERSON: Mr Hattingh, just to - as a flag, just to remind you. Will you deal with the insurance policy that accrued to him on the life of the deceased, for about R44 000, I don't remember the exact amount, but there was a life policy on the life of the deceased which was paid out to your client, and why did he accept that money and how does that fit into the argument around personal gain? If you can come to that, but I don't want to take you out of your stride now.
MR HATTINGH: Mr Chairman, I would like to deal with that immediately, but if I could just get instructions from client in this regard because my memory in that regard, is not quite clear, thank you.
Mr Chairman, the applicant refreshed my memory in this regard, that if I do go outside the evidence, please remind me or stop me. My memory was that the evidence with regard to the policy or the proceeds of the policy on the life of Janine, the deceased, the applicant testified that this money was in fact used for the purposes of the children and spent on their expenses and them being taken down to Natal and things of the kind.
What the bottom line of it, although the applicant couldn't tell this Committee exactly where every sent of it went, is that the applicant did not take that money for his own gain and use. What also should be borne in mind is the evidence of the applicant, to the effect that at the time, he could not, being a suspect to the murder, he could not go out and look for monies from proceeds of policies and pensions, and he in fact had to deal with that at a time, in a manner as if he was in fact not guilty of the crime, so once there was the pension and once there was the policy, he had to act as there was nothing strange in accepting this money from those sources.
For him to try to stand away or not associate himself with the proceeds, would have alerted the Investigating Officer with regard to his complicity to the murder.
It was for that reason that he had to in fact accept the money. But all along, his actions indicate that he in fact wanted to use the money for the purposes of the children and it was only at some stage, with regard to the money paid to the Attorney, that he had to make use of the money in the meantime because his own assets and funds were in New Zealand at the time. That is the way I understand the evidence.
Mr Chairman, however, I think the main question to be answered in this regard is not to what extent the applicant did or did not benefit from the funds that he received as a result of his wife's death, but I think what is more important is to consider whether that could have or in fact, played a role at the time when he decided to murder his wife.
If he perhaps was unaware of the policy, if he was unaware of the extent of her pension payouts which in any event, in the end transpired not to be such an extensive amount of money that became available. It is merely a matter of this Committee in the end making a finding as to what extent this Committee believe that that may perhaps have played a role and that the credibility of the applicant is once again suspect because of the money that he subsequently received.
The version of the applicant is quite clear, he has made a full disclosure in this regard, that he murdered his wife for the reasons as shown in his application and as testified, and that was the political motive and for no personal gain.
That also bring us to the requirement that there shouldn't have been any malice or, personal malice, ill will, spite directed against the victim of the acts which were committed.
Perhaps before I deal with that Mr Chairman, the personal gain thing, perhaps I should just also talk about the NUMSA matter.
At this stage, someone could perhaps assist me, but it is not quite clear at this stage yet as to what amount of money was taken from NUMSA or is at this stage common cause to be the amount of money that found its way into the pocket of Mr Bellingan, the applicant. My recollection is that it is anything between R30 000, R60 000 or R90 000.
Whatever, this account had a life of about five months, that is from March 1989 until end of July 1989. I will come back to the diaries of the deceased. If we for one moment accept the correctness of the contents of the diaries, which we do not admit, it is clear that never during the course of that period, there was any indication from the deceased in her diaries, that the applicant was in fact in possession of large amounts of money which he either spent on the household or on himself.
The gist of what one can get from those diaries, if we accept them as the truth, is that in fact, there was always this problem, a financial problem in this household, and that the deceased always had to fight for certain assistance in paying for certain matters in the household.
At best there was the allegation from the deceased that if the applicant had money for liquor, to spend on liquor and on golf, instead of spending the money on the family. There is no indication that in the light of the fact that the applicant was earning, if my recollection is correct, something in the region of approximately R2 000 per month nett at the time, that he had disposable income to the tune of between R6 000 and R18 000 more available to him to spend either on his house, clothing, liquor, golf or whatever.
Even despite and this is also perhaps something that one should point out, and perhaps this Committee is in a better position to agree or disagree with me, but in this application, a vast amount of resources from the TRC was in fact spent on the investigation of this matter, which we do not find in other applications for amnesty.
One doesn't normally find an Investigator who would go to great lengths in investigating various issues with regard to the substantiation or fighting the application of an applicant. Now, there is absolutely no indication not from the side of the applicant, neither from any other side of any respondent or anyone opposing his application, that the applicant in fact at the time, had more funds to his disposal for whatever reason.
So on the probabilities, it is clear that the version of the applicant that the monies that were obtained from the NUMSA cheques and went through the N. Umsa account as well as the Geldenhuys account, that those moneys were in fact channelled towards the purposes and the cause of the Security Police and not for his private purposes.
ADV GCABASHE: Mr Hattingh, if I may just interrupt you here. There is of course evidence of Janine’s concern about the building of the Gazebo at the back and some extensions on the house. I am not saying that the applicant didn't furnish an explanation, but that was one of the concerns she had, there was this attitude of her husband that there never was money for anything, and yet he had money to extend the house, to whatever extend they did that, and build the Gazebo at the back.
So there were large sums of money being spent on the house that she couldn't quite tie in to his salary. That is my recollection of the evidence that we have heard.
MR HATTINGH: Mr Chairman, to deal with that, it is also on record that the Gazebo was an umbrella, we don't know whether it costs R50-00, R500-00 or R5 000-00. It was an umbrella.
Furthermore, the other expense which Eugenia talked about was the clothes for the children. Now, that in itself perhaps doesn't indicate that suddenly Mr Bellingan came into the use of R90 000 for the purposes of clothing for the children.
The extensions to the house is being dealt with to some extent, I don't think it really was an issue at any stage during the course of this hearing, otherwise the applicant should have been cross-examined in that regard. He explained that and the documents that were submitted during the course of his re-examination, in fact indicated that there was a second bond and further bonds on the house. The initial bond was extended substantially to pay for those extensions to the house.
Those extensions were financed by these further bonds. Apart from that, the applicant also said that at a time he was also moonlighting with Military Intelligence, on certain projects and that he got money through that source. All in all on probabilities, the applicant has explained if there was any indication of a position to spend more money than what he earned at the time, on the face of it, he has given his explanation for that and there is no indication on the probabilities that he had money available, stings or a large amount of money available to him to spend on his own personal, for his own personal purposes.
ADV GCABASHE: Yes, continue. I was simply pointing out that there was this other evidence, but you have dealt with that. Continue please.
MR HATTINGH: Mr Chairman, then to turn to the murder itself. Obviously the first, my first reaction and I believe and I think, I am not going to give evidence by submitting this to you, but if not all of us had the benefit or the luxury of having families, I think it is reasonable to expect from all of us present, to grasp what the value of a family is.
To have children of the ages that Mr Bellingan had at the time, he testified that his eldest daughter was five years old at the time, and his son was approximately ten months at the time. Now, just as a background and I am not making a statement here in any way to influence this Committee, but as background, personally I did find it very difficult to understand why a person would come to a point where he would travel some distance to go back to his home, to see his children which he, there is no indication that he did not love them at the time and he still, that there is any problem with them at this stage, that he would see his children, look into his rooms, see that they are asleep and then go ahead and murder his wife knowing full well that the children were bound, or at least the daughter, to find her mother the next morning under circumstances which would in all probability haunt her for years to come.
I am saying this because I would submit that there must have been something else that prompted or forced Mr Bellingan, the applicant, to do something of this nature, which was clearly something that we cannot reasonably explain.
Having said that, that is no basis for my argument, but having said that however, it indicates that one needs to then look for this reason and what could that reason have been at the time? The only reasons that were presented to this Committee were either the reason as explained by the applicant, being his political motive and I will go into the details of that, and that is obviously the basis for his application, and I will submit that should we accept the validity of his political motives for this deed, then in the end he should be entitled to amnesty.
But on the other hand, a possible explanation for this terrible action which I to this day, personally cannot quite grasp and understand should be found as submitted or presented by Messrs Chaskalson and Rautenbach on behalf of the TRC and the family of the deceased, respectively, and that was the whole background or alleged background of the wife battering and various incidents of assault and total abuse of the deceased and that that perhaps could explain his actions of that night.
When we have to consider the second option, I will argue that number one, it is not the applicant's stated version, number two is we should consider to what extent the allegations thereof is in fact proven before this Committee and number three is to what extent there is support for these allegations.
Now part of the Bundles that were submitted to this Committee on behalf of the applicant, contains the inquest record and the parts of the evidence of Mr Bastions, Mr Potter and Mrs Smith, and I would submit that nowhere and I stand to be corrected in this regard, but my recollection is that nowhere at no stage, could we find any support for the suggestion of assaults and wife battering from any of those persons, apart from the fact that clearly Janine, the deceased, constantly from very shortly after the marriage, within a year or so, had a divorce at the back of her mind or in the front of her mind, it was constantly something that she considered and discussed with people and even with Attorneys.
The whole issue of assaults is, or the scenario of assaults and wife battering is based on hearsay evidence. The diaries themselves are in fact hearsay. This Committee is entitled to accept hearsay or accept it into the various forms of evidence presented to it, however, under on the basis that the Committee then has to decide what weight is to be given to that, what worries me and what I would like to suggest to this Committee is that should one consider those diaries and page through them, it appears that what this author of the diary wanted to create, was a extended period of terrible conditions under which she lived.
It is interesting to note that these diaries only started, or what we have available is after the time that it would appear that she first considered getting a divorce from the applicant, and that would explain her reasons for keeping such a diary, to use at a later stage for the purposes of the divorce.
It is further on record and in this regard I refer to the inquest evidence of Lorna Smith that the deceased was a bit of a drama queen in the sense that she did create the impression of a person who was eager or easily telling things or what appeared to be making up things, and it was a matter of the people hearing those stories, making up their minds whether those stories were to be believed or not.
CHAIRPERSON: Well, she did land up murdered by her husband.
MR HATTINGH: Mr Chairman, no we accept that, but the reason for her being murdered is in dispute.
Nevertheless what I would like to say is the support that we do find for her, the contents of her diaries, we find the only witness that was submitted to this Committee on behalf of the family and that was Eugenia. It is interesting in the period if my memory serves me correctly, early December 1988 until I think about September 1990, a period of almost two years, perhaps a little less, Eugenia - she made it clear that she, whatever she knew, she told the people, the legal representatives of the Legal Resources Centre and whatever she told them, she told this Committee, that is her evidence.
Now what did she tell this Committee? Number one she lent support to the bugging of the telephone, number two she lends support to the applicant's version that his wife was in fact snooping on his documentation, that she was in fact collecting documentation with a view on the version of the applicant, of later blackmailing him or using it against the applicant, or for using it for another purpose.
Clearly there is support for the fact that she did collect documentation, which was not intended for her. The third incident that she referred this Committee to is the incident where, about the clothing outside the house. Now at best what she could tell the Committee about that incident was that she arrived, clothes were outside in the garden and in the boot of the car, and Mr Bellingan was the person who did the reasonable thing of taking the clothes back into the house, and very little more than that.
The only incident that she could refer to and we are now talking about the period of approximately two years, just under two years that she worked with the family, the only incident of violence that she can really attest to, but once again only on the basis of hearsay evidence is with regard to when she got to the, one Saturday morning, got to the kitchen and she saw the chips on the floor and she was then told by the deceased that Mr Bellingan hit her with the chips, thrown the chips at her and she showed us in which manner he did that, and that there was also a pushing of the deceased by Mr Bellingan, against the wall and whatever the position was, and she said that she then noticed or became aware of certain injuries.
This is obviously denied by the applicant, and that was made clear. It is however interesting when one has to consider Eugenia's evidence, number one, that she never told the police about these problems, she was - it was put to her that she was approached by the police at a very early stage of the investigation. When she was approached by the police she in fact considered Mr Bellingan as the suspect in the whole matter, but that she did not disclose to the police at the time.
She did not disclose to the police the problem, the marriage problems that were experienced between the applicant and his wife at the time. She could not provide the police with any information of any substance. However, eight years later, eight, nine years later, she now comes and she now spills the beans.
A further important issue is the circumstances under which she left the employ, she and her husband or boyfriend, Justice, left the employ of the deceased and the applicant. She agreed that there was this problem or this allegation of Justice at some stage making a nuisance of himself with regard to Kate, the little daughter, of the family. We are not saying that that was a fact, but she agrees that this was considered at the time and on her version, it was resolved.
This in itself, I am suggesting does present a possible reason for her coming to this forum at such a later stage in support of a version on behalf of the family of the deceased, against the applicant.
ADV GCABASHE: Mr Hattingh, are you saying she came here to lie, is that the essence of what you are saying?
MR HATTINGH: That is the essence of what I am saying, she came here and she told things, she put it in a perspective not knowing the real truth but what she, she now tells that she was told, but she is putting it now in a perspective with a view of embarrassing the applicant and it was presented by the Legal Resources Centre in a manner to oppose the application of the applicant.
ADV GCABASHE: Yes, but what is the basis for you saying that, you didn't put that to her, you didn't challenge her on the basis that she was here to lie, so how do you come to the conclusion that she came here to lie?
MR HATTINGH: Mr Chairman, I think it was clearly put in fact where we differed on the issues that the version of the applicant is that this did not happen, he did not do anything of the kind which could have formed the basis of what the deceased told this witness.
He said what you are testifying now is that you are not telling the truth, if I did not put it to her as directly as that, in any event it was put to her that that is not the version of the applicant, he denies that and therefore it follows that she is not telling the truth.
ADV GCABASHE: No, you did not put that to her in that particular manner, you did not draw the conclusion that she came here for some ulterior purpose, you did not put it to her that she was here for an ulterior purpose and to ensure that for whatever reason, the family's version is a version that is superior to whatever the applicant's version might be.
You did not put that to her and you are asking us now to draw a conclusion on facts that you did not put to a witness.
CHAIRPERSON: In any event Mr Hattingh, even on your own submission, this is not a very effective lie because at best she had come to testify about hearsay things, issues which don't really link the applicant directly to violence. I am quite sure that it is conceivable that if she was coming to lie and to put your client in trouble, you know, there might have been much more scope to fabricate and to put him in deeper trouble.
MR HATTINGH: Mr Chairman, I accept that and to the extent that I perhaps should have put it to the witness that she, what she is testifying to is a pack of lies, and if I failed to do so, as pointed out now, then so be it, but nonetheless, I think the more important issue is that what she is telling us now, is for the most of it hearsay as far as what she is telling us, is relevant.
What she told us about the bugging is not relevant, what she told us about the clothing in the garden, is not relevant. The only issue that is relevant, is the only issue where she got some second hand hearsay information from the deceased about what happened the previous evening when Mr Bellingan allegedly came home being drunk and when he assaulted his wife.
What I say is, my submission is that if one has regard to the ease with which she apparently, the deceased apparently discussed with whoever worked with her at the time, whether it be Eugenia or Lydia or whoever, the ease with which the deceased discussed her marriage or her marital problems, it just doesn't fit in with the picture of her diaries to the extent that Eugenia during the course of the two years that she worked there, can only attest to one particular substantial incident where there was any allegation of violence and nothing more than that.
On the basis of that I say that number one is if we have to believe Eugenia, we do not accept then - in any event her evidence is not support for the balance of what is contained in the diaries. CHAIRPERSON: Yes, and by the same token, just to get it quite unequivocal, is your submission in regard to the diaries that it is the product of a drama queen who was fabricating a story to assist her in an intended divorce against the applicant?
MR HATTINGH: Yes Mr Chairman, that it does not contain the full truth. In any event, to continue, what I would submit to your Committee is that in understanding what could have led to a person committing this terrible murder, and the two possible explanations therefore, in the end one has to decide what value could be given to the diaries and the supportive evidence of Eugenia and to what extent that could perhaps explain the reason for Mr Bellingan murdering his wife.
In that regard, I might just want to add that it was clear that if anyone was to suffer financially from a divorce, it would not have been the applicant, but it would have been the deceased. If the applicant wanted to get out of this marriage, because he did not love his wife any more, if he wanted to get rid of her so to speak by getting divorced, then he could have done so without suffering financially.
For him to murder his wife, with whom he had marital problems from time to time, but to murder here merely to get rid of her and then perhaps gain some financial benefit at some stage to the extent that he did gain a benefit which is not substantial, just doesn't make sense or is not a probable explanation.
On the other hand, once again referring to the gruesomeness and the extent that one almost fails to understand how anyone could push himself to a point where he would murder his wife with his children sleeping next door and leaving the house for his children to find the body of their mother the next morning, with that in mind, one then has to consider what could have pushed this person to commit this deed.
ADV BOSMAN: Before you continue, there is just one thing that I think you should perhaps deal with in relation to the violence, the J88 forms, there were two of them. Did they not in some sense corroborate the whole tenor of the diaries?
MR HATTINGH: Mr Chairman, once again the J88's, I don't have them in front of me, but as far as I can remember the extent of the injuries shown on the J88's, were not - I wouldn't say not serious, but as far as I can remember they indicated lesser injuries, rather than extensive serious injuries.
What I am submitting is that in fact, this was in fact part of this whole scenario of the drama queen preparing a case for some stage. If she was in fact assaulted during the course of the chips incident that Eugenia talked about or testified about, then the question arises why then was there not at that stage once again, a visit to a Doctor or a report to the police or anything of the kind.
At no stage do we have any indication that the deceased in fact made a case or complained to the police and effectively pursued a matter by getting an affidavit to the police and a complaint about what her husband did to her.
ADV BOSMAN: Let's take it a little further, let's assume you are not fully au fait with the content of the J88. The J88 is an official document, it was completed by a Doctor, so as far as the evidential value is concerned, we can take the J88 as documentary proof of a visit to a Doctor and of the content of that document surely, it was not contested.
MR HATTINGH: Mr Chairman, no, I don't agree with that. I don't think if ever this document was to be submitted, to prove the contents thereof, I think it should have been submitted, I am not quite sure, but in terms of Section 212 of the Criminal Procedure Act. I don't know if that is relevant here, but in any event, normally one would get that kind of document under the cover of an affidavit.
ADV BOSMAN: It was never contested, the content was not contested and it is an official document after all.
MR HATTINGH: What I said was that applicant now instructs me and that is obviously because I am not au fait with the full contents of this matter and showing my unpreparedness that in fact the first J88 was explained, the circumstances under which it, the injuries, occurred, that was the IRP5 form that was taken from the deceased, which she didn't want to hand to the applicant.
The contents of the second J88 was in fact contested. I am not going to take it any further at this stage, perhaps that is something that I should deal with in my supplementary Heads of argument.
ADV BOSMAN: (Microphone not on) You have dealt with various positive motives, but surely these motives are not mutually exclusive, it could well have been a mixture of motives which caused the applicant to commit the murder, the strain with Janine, the financial matters, there was some, the document which was contested yesterday, there was some reference to Janine having wanted a 50/50 share of the property that they intended buying, what do we do if we find that there was a mixture - that he had murdered Janine not only for political reasons, because she posed a political threat, but also for other motives, for other reasons? Would that be within the ambit of the Act?
MR HATTINGH: Yes Mr Chairman, perhaps I should deal with that by giving an example. For example, should my parents have lived on a farm, the (indistinct), and should both of them have been murdered at some stage by "terrorists", I may have a particular personal ill-will towards, I may have had a particular ill-will towards the ANC or terrorists or whatever organisation, and should I then join the police or the Security Forces or the Army at the time, and should I then during the course of my being a member of the Force, while on a legal and properly authorise mission and within the course and scope of my duties, had the opportunity of shooting a terrorist and when I did so, I did so with a malice of saying now this is what you did to my parents, I am now shooting you back, that at that moment is my intention of killing that person ... (tape ends) ... appropriate example, or applicable, but what I want to say is that there may very well be a mixture, a mixture of emotions involved and we may very well have to deal with other motives for a particular act, committed by a person at the time.
But that should not distract from the fact that the main motive may very well have been a political one, in the course and scope of duty although there may have been other reasons interspersed, which may also have - that is perhaps the best way of putting it, which may have made it easier to do it.
ADV BOSMAN: My question to you would then be Mr Hattingh, let's assume we find there was a mixture of motives and if the applicant then did not disclose the other motives, would that then impact on the requirement of full disclosure, would it not?
MR HATTINGH: Mr Chairman, I think the facts of this marriage are placed before this Committee and the applicant did not deny that there were from time to time, that there were problems.
I will reason that there were no other factors that were taken into consideration when the applicant finally decided to murder his wife. However, having said that, we have to deal with the other factors as being facts to the extent that they are being proved and on that issue, the applicant is also clear that he agrees and he has in fact presented this Committee with the reality of the problems in the marriage, creating further friction with the party's work and the way his wife, what her perceptions about his work, were.
There, in any event there is a mixture of emotions, the marriage certain unhappiness to which it influenced not his decision to murder, but the extent to which the unhappiness influenced the relationship between the parties to the extent that the deceased decided to do things to the detriment of the applicant. Things that applicant considered subjectively as being to the detriment of the government of the day.
ADV BOSMAN: Mr Hattingh, my question is really a legal question, I am not debating with you the merits of the evidence of the applicant. Why I asked you this question is because my recollection is that the applicant's testimony was that it was a happy marriage at the time of the murder.
My question is really if the Committee finds on the evidence that there was more than one motive for the killing, because the motive must be distinguished from the objective, then what do we do if we find it was, he killed because of revenge, he killed because of malice he felt at the time, he killed for the purposes of some financial benefit and he killed because he wanted to protect the Security Police.
Perhaps you should deal with that question because it really bothers me. You should perhaps deal with that issue in your supplementary Heads.
MR HATTINGH: Mr Chairman, I think I should rather then do that in such supplementary Heads.
At what time are we going to ...
CHAIRPERSON: At twelve noon. Depending on how much further submissions you have, if we are able to finish it in the vicinity of twelve o'clock then, you know, we won't ...
MR HATTINGH: Mr Chairman, may we perhaps, I still have got some ground to cover and could we perhaps at this stage take a break, I am just for the moment a bit tired myself and I would just like to have a break, if it is possible.
CHAIRPERSON: Just give us an indication, how much ground remains that you will have to cover?
MR HATTINGH: Mr Chairman, I think I will still need about 20 minutes, but I would also just like to get some input from my client with regard to issues that he would like me to deal with.
CHAIRPERSON: Are you saying that you have reached a stage now where you won't be able to meaningfully continue without us taking the break now?
MR HATTINGH: I would appreciate that yes, Mr Chairman.
MR HATTINGH: (Microphone not on)
CHAIRPERSON: Yes, it is, we had indicated we will take a 30 minute break and we are very serious when we say that. We will reconvene at 12H25 exactly. We are adjourned.
CHAIRPERSON: Yes, Mr Hattingh?
MR HATTINGH IN ARGUMENT: (Cont)
Thank you Mr Chairman. I have indicated that I will endeavour to deal with the legal question about let's call it that mixture of motives for the act applied for, the amnesty for the act applied for as posed by Adv Bosman.
However, at this stage I would just like to add something else on that, on the facts of this matter as testified to by the applicant with regard to the possibility of the marriage situation playing a role in him deciding at that very moment, at that stage, to commit the murder.
The applicant refreshed my memory in this regard that he had testified to the effect that Lydia Kubeka, she did not testify but we have her version available with regard to what her opinion was at the time with regard to the marriage between the deceased and the applicant and that particular morning, there were no problems on the face of it, the marriage was in calm waters at that stage.
What I would like to submit in this regard is that any unhappiness from the side of the deceased and that is the testimony of the applicant, in fact although the marriage problems did not provide the motive, such problems and the attitude of the deceased in fact did play a role and exacerbated the position because it was the experience of the applicant that whenever there was unhappiness in the marriage, the deceased would have hit out at the Security Branch and threats with regard to the marriage and her threats to get a divorce, were also threats to hit out at the Security Branch.
Every time that there was a marriage problem, it then also led to friction with regard to the work of the applicant, it would also then lead to the applicant losing control over the deceased to the extent that she may disclose information which she was given during the course of the marriage and which information would then have been to the detriment of the Security Police and the government of the day.
ADV GCABASHE: Mr Hattingh, having said that, I was actually just remembering the evidence of Gen Erasmus when he said that Janine was extremely protective of her husband, that she didn't want any harm to come to him. In the light of that evidence you are here submitting that - and the applicant has also submitted that she did intend to harm him - this obviously was not the perception of Gen Erasmus. I don't know if you can try and relate the one to the other in any way?
MR HATTINGH: Mr Chairman, I can do no more but to speculate. What I would like to say is that it may very well have been the intention of the deceased to do whatever she wanted to do in the interest of the applicant, but that doesn't necessarily then follow that had she then disclosed information which would have led to the applicant leaving the Security Police and to work in a more friendly environment, her purpose in disclosing information to force the applicant out of his job with the Security Police, that may have been her motive, but in doing so, she then would have spilled the beans, opened a can of worms with regard to the Security Police and perhaps inadvertently, perhaps obviously not with the intention of bringing the Security Police in disrepute, and the government of the day in disrepute, that would have been the result of her actions.
All I can do is speculate and say that even though her intentions were perhaps not as a fact to bring the government into disrepute in doing what she intended to do, what she threatened to do, that was the impression and the subjective opinion of the applicant, that that was in fact going to be the result of her actions.
That is what caused him to take action to control the situation, to manage the problem. Like he explained at the time about the NUMSA money, the NUMSA operation.
Janine, the deceased, may very well have wanted to use this number one, to get the applicant out of the Security Police, number two, she may very well have used it as explained by the Attorney in his affidavit for the purpose of forcing the applicant into a settlement of a divorce in a manner in which the deceased would benefit more. Those may have been her own reasons or motives.
In the process of doing that, she would have brought the Security Police, the government of the day, into disrepute and that is what was at the back of the mind of the applicant, and that was what in fact prompted him to do what he did.
Now, I cannot take it any further at this stage.
Now, turning to the evidence submitted to this Committee, I just briefly want to deal with the testimony of the applicant. The applicant was cross-examined extensively and I am not in a position and I do not wish to at this stage, to deal with all the issues relating to his evidence and I would merely want to at this stage, to make the submission that the applicant's version with regard not only to the murder of his wife, which remains the most prominent matter under consideration at this application hearing, amnesty hearing, but also in regard to the NUMSA operation and the cover up of these events thereafter.
That the applicant in fact gave a plausible explanation and that he in fact made full disclosure. I realise that on behalf of the family, on behalf of the Evidence Leader, that they may have differing views in this regard, but I would submit that in fact the applicant made full disclosure.
With regard to the murder event, the real issue with regard to how the murder was performed and the related issues thereto, my submission is that there was in fact full disclosure. Much will be made of the opportunity of travelling by air from Durban to Johannesburg on the Friday evening and back on the Saturday morning, and how it would fit into the testimony of Judy White as to the time when the applicant arrived in Pietermaritzburg, but all in all, I would at this stage merely wish to say that not only was the applicant's version a complete disclosure, but it was also a possible explanation.
It was in fact - probabilities what happened, the manner in which this murder was performed.
Turning to Judy White, the relevance of her testimony boils down to the telephone discussion that she had with Janine some two days before the Friday of the murder. The applicant testified in fact that this telephone call that was relayed to him by Judy and when he was told about what the deceased had told Judy, that that was in fact the final straw and that he then realised that the disclosures, the threatened disclosures were not imminent and that he had to act.
It is important to what extent Judy White would support what happened with regard to the telephone discussions and what was told to her and what she relayed to the applicant.
When one deals with the evidence of Judy White, I wish to submit that much was made about her assistance or - yes, her assistance to the Investigating Officer, what she told him at what time, and what she failed to tell him at what time.
One thing in particular, much was said about the bank account that she had with - in Pietermaritzburg or wherever, which she apparently initially did not disclose to the Investigating Officer, but it is very interesting to note that in fact the Investigating Officer, never at any stage, noted that in his investigating diary as saying the sister of the suspect told him that she had no account with a particular bank at the time, although I was in possession of this deposit slip where her name was mentioned and which caused me to think that there was a link between her, the suspect and the NUMSA operation or the NUMSA moneys.
What was noted by the Investigating Officer and referred to was on a subsequent discussion with Judy White and when he disclosed to her that he got details of her bank accounts and that he spoke to the bank manager and that he got copies of this account, was that she was very unhappy about it and he then noted that he then explained his actions by way - on the basis that on the previous occasion she did not want to disclose the existence of that bank account.
But that was in dispute and I believe that not having noted it at the time, that was some kind of explanation that he perhaps thought it best to explain to Judy White why he had to go to the bank without her permission.
I am not going to take it much further than that. Then the whole thing about Judy White not telling the Investigating Officer about the telephone call from Janine and the threats made by Janine, Judy White also explained that in full. Her reasons being - number one is that she knew Janine and Janine was a bit of a - she did not use the words drama queen, but someone who would let's rather say a bit talkative and a bit of an alarmist.
When she was consulted by the Investigating Officer, she deemed it not necessary to reveal this telephone discussion with Janine on the basis that she did not consider it to be of any relevance. At the time and for many years, it was Judy White's impression and belief that her brother, the applicant, could never have been involved in this murder because he was in Pietermaritzburg.
She met him at 09H15, at the latest half past ten, nine that morning. In her own mind, he could not have had anything to do with the murder, and that would then explain why she would not have said anything to the Investigating Officer in regard to the telephone discussion with Janine, because she knew that her brother was a suspect, but this telephone discussion did not come into play because she very much believed that her brother was in fact in Pietermaritzburg, in the area and not at the scene of the crime.
For that reason she considered it not relevant to tell to the Investigating Officer. To that should be added the fact that she at some stage also formed the belief that the Security Police may very well be involved in the murder of Janine. She explained and we also find that in the investigating diary that following discussions with the Investigating Officer, there were burglaries at her house, but not serious burglaries, more burglaries of the nature of warnings, more than anything like the taking of very valuable assets.
The total picture of her evidence is that at the time, she was not only intimidated by these burglaries but she was also intimidated by the Investigating Officer and the whole situation and her own belief that the Security Police may have been involved.
With regard to the times that she from the outset, made available to the police as to the times that she met the applicant in Pietermaritzburg, she stuck to her times that she mentioned at the inquest, it was nine o'clock, quarter past nine and she said at the latest half past nine, but she also tells this Committee that she didn't have a watch at the time.
We have the availability of an input from her husband, which states that they got home about in the region of eleven o'clock and taking into consideration the whole picture of what they did after the applicant was picked up by her, where they went for shopping and how they got home, it does fit into the picture of perhaps a later time that she in fact picked up the applicant.
All in all, my submission would be that it is not an improbability that the applicant may very well have made use of an airline to fly from Durban to Johannesburg on the Friday night and to return on that Saturday morning on the earliest flight and to be in Pietermaritzburg to be picked up by Judy.
I have already dealt with Eugenia Mkaba and to a fair extent, I have also dealt with Mr Kjellberg.
CHAIRPERSON: What are your submissions in regard to Ms White's testimony on the amount of money that was given to her by the applicant?
MR HATTINGH: Mr Chairman, it is clear that there is nothing to the contrary but her explanation in this regard, namely that the applicant owed her some money and he gave her some money as part payment and that she did not count the money at the time and that she would have done so had they not shortly or on their arrival at home, heard of a problem that the applicant was to return to Johannesburg immediately or as soon as possible, and telephone calls thereafter when it was confirmed that Janine had died.
During the course of those events, she did not bother to count the money and that she could not take it further to say that I received an amount between R500 and R1 000.
The reason for her receiving the money was explained on the basis that it was money owed by the applicant, to her.
CHAIRPERSON: Yes, and the amount? The amount, is that testimony plausible, between R500 and R1 000? What are we to make of that in the light of what you have just submitted?
MR HATTINGH: Mr Chairman, the fact is there is nothing to the contrary that the money was owed. There is nothing to the contrary to the testimony of Judy White that she did not count the money.
In the course of the events of that particular day, she never bothered to count the money and I don't think there is anything to be made of either the extent of the amount or the fact that she can't recall as to exactly how much it was, whether or R500 or between R500 and R1 000. My submission would be that that in itself is no reason either to doubt her testimony or her credibility in this regard.
Perhaps her fallibility with regard to her memory about the amount of money, nothing more than that.
CHAIRPERSON: So you are saying that we should accept her testimony about why she says and why she sticks to her version that it was between R500 and R1 000?
MR HATTINGH: Mr Chairman, purely on the basis that nothing to the contrary was placed on record to doubt her, I would submit that we have to accept her testimony in this regard.
CHAIRPERSON: You were going to go to, you say you have already dealt with Eugenia and Mr Kjellberg?
MR HATTINGH: That is correct Mr Chairman. Lastly I would like to deal with Gen Erasmus. Gen Erasmus' position is a peculiar and precarious position.
He himself applied for amnesty but only for gross human rights' violations, and not for anything less than that. He is somewhat evasive about his knowledge of an operation which clearly on the face of it, was in the Security circles, common knowledge.
At best he can say that at the time, to the extent that he was involved with Group D, or in an overall Commander situation either with Intelligence or the Security Police or with the Witwatersrand as Commissioner, all he can say is that he cannot remember that there was such an instruction to use, make use of the resources of the enemy so to speak, that would have been NUMSA, to make use of those resources against the enemy.
He doesn't say it is out of the question, there was never such an operation or an authority or instruction to that effect. All he can say is that he cannot remember. He goes further and says, he is not adamant, I never received any money from this source, from the applicant, he says I cannot remember receiving money from the applicant, from the source.
If we turn to the general order or authorisation question, once again, he is very evasive about what he knew at the time and to what extent general authorisations were at the order of the day. I believe that perhaps this Committee is in a better position and if necessary I will deal with that in my supplementary Heads, that it is by now almost, well not almost, it is accepted, there were certain general authorisations in terms of which gross human rights' violations did take place.
To deny that such general authorisations ever existed, is just not something which is a plausible explanation at this stage any more. He denies knowledge of any general authorisation in terms of which the applicant committed the acts that he committed and for which he now applies for amnesty.
However, my submission would be that that attitude of Gen Erasmus of his denial on the basis he didn't quite know, he was not aware of that, that does not really preclude the applicant from relying on the basis on which he testified in terms of the courses which he went on, that he attended and various other influences that he had during the course of his work with the Security Police.
Gen Erasmus' evidence with regard to the visits to his house, it is very interesting to note that following the very, the rather evasive way of dealing with the main issues, he also talks about the visits at his house and when he and the applicant at some stage were outside on the verandah or on the stoep of the house, Mr Bellingan, the applicant out of the blue said that there would be, this would be a lovely place to put in a swimming pool, and that was the only reference to swimming pool in terms of their discussion.
However in response to the questions from the TRC which he confirmed, he put the reasons for the visits, the two visits by Mr Bellingan in fact as discussions about swimming pools, that Mr Bellingan came to visit him at his house on two occasions for the purpose of discussing swimming pools. This may sound pretty obnoxious or irrelevant, but still this indicate the extent to which Gen Erasmus' either his memory is failing him, or that he is not prepared to stick to a particular version and that he is using totally irrelevant explanations for meetings in an inconsistent manner - to come to the real reason of the meeting.
CHAIRPERSON: I am sorry Mr Hattingh. Sorry Mr Hattingh, I might have missed you now.
Where did he suggest that the reason for the meeting was to discuss swimming pools?
MR HATTINGH: Mr Chairman, in the - I will have to go back to the documents which I don't have with me at the moment, but in the answers, responses obtained from his Attorneys which were submitted on his behalf, in response to the questions put by the TRC Evidence Leader to them.
I will endeavour to get the particular reference, and I will bring it to your attention.
MR CHASKALSON: Mr Chairman, maybe I can assist, it is Bundle 3.1 of the Bundles before you, page 13, paragraph 2.6.
MR HATTINGH: Thank you Mr Chairman. All in all the evidence in my suggestion would be that one would not expect Gen Erasmus today or during his evidence to come and admit to partaking in the proceeds of the NUMSA money either for his own private benefit or for the benefit of the police or the Security Police had he not made an application for amnesty in that regard.
It would have come as a total surprise had he done so. It would have come as a total surprise had he done so. It would have come as a total surprise had he come here and said and admitted that he had discussions with the applicant to the effect that the applicant needn't worry about the investigation into the murder of his wife.
We did expect him not to admit those things. However, one would have expected him to be more precise in his knowledge of matters, and that he would not just respond by saying he can't remember those matters. My submission would then be with regard to Gen Erasmus' evidence is that it should be rejected to the extent, and it was put to him that there was a difference between his evidence and the evidence of the applicant, and that the applicant still maintains his version and on that basis, and on the basis of the manner in which Gen Erasmus gave his evidence, I would submit that his evidence is to be rejected.
Mr Chairman, I have come to the end of my initial address. I have not dealt in detail with all the matters, what I would say is that when due regard is had to the complete and comprehensive application document, excluding the annexure which is in dispute and with due regard to the applicant's own evidence, and as supported by the evidence of Judy White, I would submit that he in fact made full disclosure with regard to his motives, to the events in respect of all three actions for which he applies for amnesty.
CHAIRPERSON: In terms of which of the subsections of 20(2), on which of those does the applicant rely?
MR HATTINGH: Mr Chairman, on my interpretation, it would be on subsection (b), (d) and (f).
CHAIRPERSON: Is (f) in the alternative?
MR HATTINGH: No Mr Chairman, (f) is, it is a matter of I think it is a catch all for (a), (b), (c) and (d) in the sense that the reason grounds or belief, the applicant on reasonable grounds he believed that he or she was acting in the course and scope of his order or his duties and within the scope of his or her expressed or implied authority.
I think it merely adds to the paragraphs (b) and (d), and it is not an alternative.
CHAIRPERSON: So are you saying that he had the authority, but that he also reasonably believed that he had it or are you saying that he had it, alternatively if he didn't have it, then he reasonably believed that he had it?
MR HATTINGH: What we submit is that the applicant had the implied authority and that he reasonably, he had reasonable grounds to believe that he had that implied authority and what he did was, he was acting in the course and scope of his duties and in terms of the scope of that implied or express authority. Obviously with regard to the NUMSA matter, it was not merely implied, but express.
CHAIRPERSON: So NUMSA was express and the murder?
MR HATTINGH: The murder would have been an implied authority.
CHAIRPERSON: And from which factors did the applicant infer the authority?
MR HATTINGH: Mr Chairman, perhaps if you would allow me, I do not want to commit myself now to state only, give you a list of the factors and commit myself to that, perhaps I should just leave that for my supplementary submission, if you would allow me to do so.
CHAIRPERSON: And can I just repeat the same question in regard to the reasonable belief. Are you in a position to submit which the grounds were that founded or supported this reasonable belief?
MR HATTINGH: Mr Chairman, I have already indicated the applicant has been testifying for many days, and all those issues have been canvassed during the course of his testimony and I would rather not at this stage, go into the details thereof and to commit myself to anything.
I would rather then on this particular issue, refer back or in my supplementary submissions, deal with that.
CHAIRPERSON: All right. So you would only make the general submission and you will supplement and furnish us with the specific grounds when you do your supplementary argument?
MR HATTINGH: That is correct Mr Chairman.
CHAIRPERSON: Yes, thank you Mr Hattingh. Mr Rautenbach?
MR RAUTENBACH IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, I would like to point out at the outset that as far as the Heads of argument is concerned, and argument is concerned, we have prepared Heads of argument.
However due to the short time available, it wasn't possible to actually finalise those Heads. I am going to use the Heads of argument that was prepared, to give structure to my argument and to basically move from one relevant issue to the next.
What I will suggest at this stage is the moment we come into possession of Mr Hattingh's final argument, we will finalise our Heads and we will make it available to you and all the parties. As I say the argument will be structured along the draft Heads as they are structured right now, as long as anyone doesn't have an objection with that. I think that falls more or less within the procedure envisaged.
CHAIRPERSON: Yes, Mr Rautenbach. You say that in any case the crux, the thrust of your argument, you will present now and you might be refining some aspects to it once you also see whether Mr Hattingh has any further submissions that he wants to make, all right.
MR RAUTENBACH: Yes, and I can also not exclude the possibility in refining them, that a certain point will probably be elaborated upon, although I don't think that this is necessarily going to happen.
Mr Chairman, as far as the Heads are concerned, basically we have divided the argument between two major issues. The first one, full disclosure and the second one, on the political objective.
As far as the argument in support of no full disclosure is concerned, we have divided that in a couple, in a number of headings. The first one being the existence of two amnesty applications and the implications thereof.
Secondly we looked at the modus operandi, that was of the applicant. Thirdly we looked at the relationship with the deceased, fourthly there was the NUMSA, what we will refer to as a NUMSA non-disclosure, and lastly under the heading, the same heading we will deal with the applicant's credibility to show that in order for this Panel to find as to whether there was a full disclosure, the Panel will have to look at the credibility of the applicant and therefore that is an important factor to take into account when you assess that question.
As far as the first aspect is concerned, namely the two amnesty applications, the first remark I would like to make in this remark, is something which actually emanated from the argument by Mr Hattingh, and that is that he indicated that that assisted in the original application in which a interlocutory ruling was made, namely that that application be, the so-called first application, be struck from the record.
Now, we oppose that application if they still persist with it, on basically the following three grounds. Firstly we say the document is relevant. Mr Chairman, the document is highly relevant, the document deals with the murder.
Secondly we say that the document is crucial to also, in assisting the Panel to assess the credibility, the ultimate credibility and to make a credibility finding in this matter, as to whether the applicant was in fact a credible witness or not.
And then the third reason why we say it should not be removed or should not be struck down, was the evidence of the TRC's Investigator, Mr Kjellberg who basically gave first hand evidence and I must at this point already say that I disagree with my learned friend, Mr Hattingh's contention that Mr, he started off by saying he shouldn't just be believed, Mr Kjellberg. My response to that is why on earth should he not be believed, he told you of what he has knowledge about and he also was cautious enough to say to you and to mention to you those things that he could not remember, so there is no reason whatsoever we submit, not to believe Mr Kjellberg ... (tape ends) ...
As far as the two amnesty applications are concerned, we submit that the two amnesty applications, are substantially the same in respect of all acts and offences for which amnesty is applied for, save and except for the murder of his wife Janine Bellingan, which differ materially. We know what the differences are, those differences were also, we specifically pointed out those differences during the evidence of Kjellberg.
The effect of that is that we submit, that the mere fact that the applicant has submitted two entirely contradictory and factually inconsistent amnesty applications, is sufficient basis for the Amnesty Committee to dismiss the application for amnesty. I am not specifically referring to the murder offence.
We furthermore submit that the applicant persevered in his failure to make a full disclosure in the circumstances of the murder, at the hearing in his nonsensical and incoherent attempt at explaining the existence of the two applications, in which he denied that the first application was an amnesty application at all, and conceded at the same time, that he had intentionally and on several occasions lied to Officials from the TRC.
What we are saying is that the explanation given is an explanation that just can't be accepted. He started off with the bizarre evidence to say the least, that he wanted to test the water. Now wanted to test the water for what, I still for one, don't understand what that answer meant.
Secondly, a document describing the events for which he asks amnesty for, ends up in the possession of the TRC. The only question, the question arises what, why, what was the purpose of the document, why was the document there, why was it necessary to state those things in writing in a document? These are all questions that still have not been answered.
We submit that the answer to that question is actually a very straight forward one and that is that Mr Bellingan for some or other reason, which we also did not have an answer for, it was also not explained to you, changed his mind.
We say that apart from the fact that you've got these two materially different versions contained in the first and second amnesty application, that during the course of the hearing, in fact a third version emerged. We say it is a third version and the reason is in his oral evidence, the applicant testified about three critical telephone conversations between himself, the deceased and his sister, Judy White, which he alleges and we submit once again, for the first time at the hearing, were the most significant factors which led to his decision while in Pietermaritzburg, to murder his wife, so that we in fact have a third version, a third version regarding the motivation regarding the events that led to the murder of his wife.
We also submit that no adequate explanation was offered by the applicant as to why he had failed to include these crucial pieces of evidence in any of his written applications, or in the correspondence from his Attorneys on his behalf to the TRC.
The only inference that we submit can be drawn from this, is that the telephone conversations and their significance constitutes a weak attempt to substantiate the motive and timing of the murder.
We also submit that whether one argues is this a first application, is this the so-called discussion document, which still, the meaning still is not clear to me, whether that is a discussion document, whether that is a first application, whether there is a dispute between the parties, what we know is that the applicant when he approached the TRC, the Truth and Reconciliation Commission, he knew he must have know, why that body is in existence, why there is such a body as the TRC, why it is there and what the purpose of the Commission is, and despite that knowledge which he must have had, he still for reasons of his own, we submit, unexplained, he still started his opening statement to the TRC in his discussions with their Officials, he opened with a lie. With a lie as to how the murder was committed.
That we say Mr Chairman, affects also substantially his credibility and actually casts a shadow over the whole question of non-disclosure.
Mr Chairman, as far as the modus operandi is concerned, that is the second heading, we submit that he has made, he has failed to make a full disclosure with regard to the execution of the murder and that the events that he described, has been proved to be physically impossible.
Now, to start with his movements shortly before and after the murder, he testified that he left Pietermaritzburg at approximately 18H00 and hitch hiked, getting two lifts to Durban airport. At the airport he bought a return ticket. His evidence was that he waited and bought and read a newspaper before boarding a 20H00 flight to Johannesburg.
The next day he claims that he took an 06H00 flight to Pietermaritzburg, where he walked from the highway to his safe flat before walking again to the arranged meeting place, to meet his sister, Judy White. We say, we submit and I will explain it in a little bit more detail, but this version of the events, we submit is impossible.
We know from the information that was made available to you through the affidavits of Botha, through the affidavit of Steyn and the annexures thereto, that there was no 20H00 flight on Friday the 20th of September of 1991. We know that there was a 19H00 flight, but the applicant could not have been on that flight because on his own version, he only left Pietermaritzburg at approximately 06h00 and would not have had the time to do all the things he claimed that he did prior to the boarding of the flight. That is as far as that first flight is concerned, and then we know that the only person who was on the 19h00 flight and the next flight, the following morning, in other words as far as the 19h00 flight is concerned, there was only one person on that flight and on the next day, on the 06h00 flight, was a certain Mr Sheffer, and as you will notice from the affidavit by Mr Steyn, his ticket was bought for him by a Dr Ferreira in Johannesburg and he could therefore not have been the applicant.
Then we say the applicant could not have travelled on a return ticket on the later 22h40 and 23h59 flights on Friday and returned on the Saturday morning flight as the passenger list, and that has been made available through the affidavit of Botha, reveal that there were no such return passengers on these lists. So the point is if you look at the information available, there is one thing, there is one person in those three flights that actually had a return ticket to return the next day, that person was Sheffer.
Sheffer, we know was on the seven o'clock flight, the applicant couldn't have been on that flight, number one, number two, Steyn says in his affidavit that Sheffer's ticket was bought according to his investigation by a certain Dr Ferreira in Johannesburg.
From this factual information, he couldn't have been on the plane. At best, he could have been on the plane back from Johannesburg or on the plane from Pietermaritzburg, but we submit that he wasn't on the plane. I want to in this regard, just put forward another totally inherent improbability.
Mr Chairman, the applicant told you that when, he regarded - this was a matter of national importance, this was a matter probably the most, it was for sure as far as his own actions and his own involvement concerned, a physical act of a magnitude that he has never committed before, so it was to him a very important operation, an operation of national importance. We know one thing, that at that stage, his first priority was apart from getting his wife murdered, his first, his second priority was to make sure that his alibi will be in tact.
In other words it was so important for him not to be seen by people. Just looking at that, Mr Chairman, I am just going to use the every day example, this happened, if I think back on catching flights from an airport and I think a lot of people that are here, will probably agree with me, this happened to me on a number of occasions, it doesn't happen to me on every occasion, but it has happened to me on a number of occasions that when I went to the airport, going into the airport, buying a ticket, waiting in the passengers' room, seeing people coming from other flights, getting off the plane, seeing people waiting outside, that you every now and then see people somewhere in the crowd, a person on another flight, sometimes a person on your flight. I say it is an inherent improbability that he would have taken that course by doing the hitch hiking and taking the planes to go to Johannesburg.
To strengthen that argument, he was asked what name did you use when you were on these, when you bought this air ticket. The applicant said he can't remember. I just want to get back Mr Chairman, to the point that as I already put, this was probably the, firstly the only time in his life that he actually had to murder someone, that he murdered someone and that he had to cover it up. For him, and I say that again is also inherently improbable, to say I can't remember the name that I used where we knew that he must have, he must have planned this properly and meticulously.
We submit that the reason why he told you he cannot remember the name that he used, is that he foresaw in his evidence the possibility that if he fabricates yet another name, this time fabricates the false name, the false name may not appear on the list and that is why it is not insignificant that he couldn't even, that he couldn't on his version remember the false name that he used.
We submit what should we make of these arguments that we put to the Panel, we submit that the applicant has lied about his modus operandi that affects the disclosure, we submit that the reason for this, that there must have been a reason for this lie, that the reason for the lie was to conceal the fact that he was assisted by another person.
That that person either provided him with a vehicle or drove him to Johannesburg and that he is unable for various reasons, to disclose the identity of this person for the following reasons: Firstly the accomplice or accessory has never been identified, never been charged and accordingly the applicant does not want to expose him or her to the risk, particularly as she or he has not applied for amnesty for the murder, if that person was in fact a member of the Security Forces.
The second reason is that the accomplice or accessory may not be a member of the Security Police and once again, if the applicant were to disclose his or her identity, the applicant's claim that this was an authorised, highly sensitive politically motivated murder, committed by him in his capacity as a member of the Security Police, that would be exposed to be blatantly false.
As far as the next heading, as far as this aspect is concerned, I may just conclude to say that it is, we submit, that it is patently clear that there was a non-disclosure regarding the modus operandi and it is clear from the evidence.
CHAIRPERSON: On that submission, Mr Rautenbach, it would more than likely have been somebody in Pietermaritzburg?
MR RAUTENBACH: Mr Chairman, either a person that was in Pietermaritzburg at the time, or yes, it must have been a person in Pietermaritzburg, that is the most likely, on this argument, that is the most likely scenario.
Mr Chairman, the next sub-heading that we deal with is his relationship with Janine, and I just want to remind you that we are still dealing with the whole aspect of non-disclosure.
We submit that the applicant was not telling the Committee the truth regarding his relationship with his wife. He testified that he loved her and that the relationship had its normal ups and downs. He testified further that the relationship was good at the time.
We submit and we to a certain extent rely, to quite a great extent, rely on the availability of the diary, we also rely on some of the witnesses that gave evidence during the inquest, there are the evidence of Lorna Smith, there is the evidence of Bastions, there is the evidence of Keith Potter, there is the diaries, there is the evidence of Eugenia and we submit that the relationship was in fact an abusive and violent one, and that the applicant abused the deceased emotionally, physically and financially.
We say that as I said that this view is supported by the diaries and the evidence of certain witnesses at the inquest, the existence of the J88 forms and the deceased's letter to a divorce Attorney. I would just like to make the point at this juncture, and this is that it was said by my learned friend, that he used the unfortunate words, I don't think there was any basis for it in the evidence to come to such a conclusion, but he described the deceased as a drama queen.
Now, where that argument really comes short, is if one considers the following: When the applicant was confronted with the diaries, I can specifically recall the cross-examination by my learned friend, Mr Chaskalson and to a certain extent also the cross-examination of Mr Trengrove, whenever he was confronted, also by the Members of the Committee, about the abusive relationship and whether it was an assault, whether it was another form of abuse, whether it was the J88 form, whatever it was, the applicant's response to it was, I deny it. A bare denial, I deny it.
Almost the opposite that you would expect from a person, taking it into account, thinking about it and thinking about a scenario that is more probable than one of the deceased's wife fabricating all of this and he sitting here, denying all of this.
If he said to you yes, but Mr Chairman, there was this thing about the chips, you know, I feel a bit embarrassed about it, yes, I threw the chips at her. But do you know what really happened, a diary may say this and that, but I got home and she actually confronted me and she accused me of things, and she abused me and yes, I lost my temper, but I actually didn't hit her, or I did. If it was that type of answering to the answers, it would have fitted in with the probabilities and it would have made much more sense.
Then one would have understood that my learned friend could have argued and said she was something, she was some drama queen, whatever, but if you look at the applicant's evidence and the applicant's reaction to it, he doesn't rely on that, he just says it never happened.
So as far as the relationship is concerned, I would want to make the point here that once again, on the probabilities, the existence of the diary, the fact that people were told about it, the evidence of Eugenia and the mere bare denial by the applicant, you have to find on the probabilities that this relationship was in fact not as good as described by him, but that it was in fact, in fact an abusive relationship.
We also would like to submit that while conceding only that his wife was intelligent, the applicant referred somewhere in his evidence to her as emotional, unpredictable, vindictive, irresponsible, hardly we submit, the loving terms of a bereaved husband.
We submit further that he has in fact shown no remorse or grief about the death of his wife, and we say this is relevant as far as the full disclosure regarding this relationship is concerned.
He says their relationship was pretty good. Although the applicant has broken down twice during the proceedings, once during Adv Trengove’s questioning, once during the questioning of Mr Chaskalson, if you analyse that, you will notice that the breakdowns are closely related when he was exposed to questions about his children, every time when the children was used.
In so far as it may be argued that he had some serious difficulty, at some stage during his evidence, I think it was at the beginning of his evidence in chief, that he had some difficulties explaining how he carried out this act, explaining how he committed the brutal act. Mr Chairman, you will recall he said something to the effect of I rendered her unconscious and he had to go a bit further.
We want to submit that even if it can be argued that he had some difficulties in describing the act, although that was not a complete breakdown as it was when he was confronted with the children, that one should not lose sight of the fact that the applicant is an accomplished actor and that he in the past was able to persuade even his sister that he was not at all connected to the murder.
He broke down, he broke down when he heard the news, that was his evidence, and the news that he heard, was the news of his wife's death and he was the one who caused it, but he broke down.
We submit that the reason why he lied about the state of the relationship, is a very - it is a question that answers itself, and that is that it was the state of this relationship, the relationship that was also a motive for the murder.
The murder had nothing to do with the politics of the day, but was motivated by the relationship that existed between the applicant and the deceased at the time. We say he committed this as a result of the breakdown of his marital relationship and his concern that she, that he had because of the evidence of the NUMSA information that she had, and that she could if she went further with the NUMSA incident and if she further put more pressure on him regarding the possible divorce, it would have jeopardised his career and would have exposed him at the very least, to censor by his superiors. We also say that this bare denial that he says every time anything is put to him of the incident that took place between them, he says I deny that. That attitude was also indicative of his attempts just to get the focus shifted away from the relationship between him and the deceased.
The easiest way for him of doing it, was to give a bare denial, because then you can't really question him regarding that relationship. He says that never happened, that never happened. That never happened, so please get away from the relationship.
The next aspect was the NUMSA. We say regarding this operation Nicholas Umsa, and the money of NUMSA that his evidence was not, firstly not supported by anyone in the police. He couldn't get a single person to tell you that this was in fact, that his actions in having that bank account, transferring that money, that that was in fact part of a police operation.
We know there is evidence to the contrary. We submit that that was an operation that had to do with personal theft and self enrichment. We submit that it is inexplicable, unthinkable that an operation like the one he described about NUMSA, that there was no control by any person, no person to report to and no evidence, that he could find no evidence to back him up, the money was in fact used for something official, something legitimate. At least if it was, one would have expected someone to back him up on that one.
You are in possession of the affidavit of Walkley and despite what he says, the fact that there is just no backing up from any person in the police to say that this was in fact part of his duties, points only to a further instance of non-disclosure.
As far as Gen Erasmus was mentioned in this regard, Gen Erasmus, one thing we should not lose sight of the fact that Gen Erasmus, my learned friend made a point, it would have been surprising if he came here and he said in fact this is so, but the point is, we must know that Gen Erasmus have applied for amnesty on various occasions, so if that was so, Gen Erasmus could merely have applied for amnesty regarding this incident as well.
He had applied for a number of much more serious events than this particular event. Also as far as his disclosure is concerned regarding the NUMSA money, we still are in the dark regarding to what exactly happened to this money, where did he go, what did he go for. There is still no disclosure on that.
As far as the NUMSA, his involvement with the NUMSA money is concerned, it should also be seen in conjunction with the evidence by Eugenia, that she actually saw the cheques. She couldn't tell you much more, she is not a person that is highly educated, she couldn't say to you whether they were cheques, or whether they were deposit slips, but the point is her evidence that she saw it and that it was about NUMSA and that Judy White's name appeared in connection with these cheques, actually cast a shadow over any explanation regarding the use of the money.
You will recall that he was specifically asked why to Judy White, and his answer was to satisfy my wife, because I owed Judy White some money. Now if his wife was suspicious about this whole NUMSA issue, for him to use a deposit slip to Judy White when we are in the same context as dealing with the NUMSA cheques and the Nicholas Umsa account, doesn't make sense, it would just have led the suspicion grow.
We say it cannot ever be argued that there was full disclosure regarding the NUMSA event.
As far as the next heading on full disclosure, is applicant's credibility, we would like to make the following submissions here: The first one is that we submit that the applicant is an inveterate liar. Secondly, we submit that the applied lied from when he made his first statements to the Investigating Officer and continued lying thereafter at every occasion.
I know my learned friend has argued, it doesn't mean where he lied in the past because he had a reason to lie, that he will lie to the end, but let me just go through them.
At the inquest proceedings were held and the applicant once again elected to lie. I will later on address you shortly when I deal with the context, on the time frame and when these lies, and when he lied in respect of each incident.
The applicant applied for residence in New Zealand and lied in his application. That was clear, he tried to say that it was not really a lie, he got a clearance certificate. With further cross-examination it became clear that he in fact lied and that he knew that he lied. The applicant brought a bail application when he returned from New Zealand. The bail application is one of the Bundles there, this is one of the reasons that we want to tie up the Heads, just to make sure that we give you all the references that you need.
The Presiding Officer said the following about the applicant, he said I say that in view of the fact that regarding the credibility of the accused, I am quite satisfied that he is a very accomplished liar, one of the best I have had the privilege to see. This is the finding made by the Presiding Officer at the inquest.
The applicant lied at his trial, and also repeated his lies in two subsequent petitions to the Supreme Court of Appeal. The applicant lied publicly in statements to the press. Even on his own version, with regard to the two amnesty applications, the applicant has admitted intentionally lying to TRC officials.
The applicant is a trained liar who was instructed and involved in disinformation in the course and scope of his employment. We say that his evidence in this forum, he gave his evidence in an evasive and confusing, non-specific and vague manner. He failed to answer questions posed to him in cross-examination directly or at all.
As in the example of the alacrity to which the applicant resort to lies, the incident regarding the use of notes is an example. This was quite extraordinary to say the least. If you can recall, he had a document with him, he firstly denied that he was making use of the notes, secondly during an adjournment that followed, he was specifically instructed by his counsel that he shouldn't make alterations to those notes, this is why people were present in the room where we were, in the hall where the proceedings were conducted.
To take it further, despite the instructions by his counsel, he erased certain words in the notes, but even to take it further than that, and this is where we submit, it shows what this applicant is capable of, he was asked by the Panel as to what those words were, those were the words that he crossed out, and his answer was, he couldn't remember.
Now, it was, there just can't be any shred of truth in an answer of that nature, where he himself elected to scratch out words, then immediately being asked as to what those words were, and then he is not able to give it. It is basically, he is electing once again, the fact that he says I can't remember, that is a lie on its own. The reason as to why he didn't want to give it to the Panel, that is to hide certain information or his thought process from the Committee. This is how far it goes.
He was further not prepared when asked by a member of the Committee, to commit himself to the time at which he had prepared the notes, non-committal, he just didn't want to commit himself. We submit that this incident serves to demonstrate that the applicant is prepared to lie whenever it suits him.
In this regard, we can also shortly refer you to Exhibit V, that was the document, and once again when he was presented with Exhibit V not only was his immediate response it is fiction, it was part of the whole pattern of covering up with lies, but even on this document, when he was confronted with paragraph 6 thereof, where it was clearly put to him in your statement to Paul, you did not state from which place you called, perhaps you can remember. It was asked to him what statement is this, you do not, what is the meaning of those words and he gave an answer that with all respect, did not at all answer the question.
Also clear from this document is that it just shows how careful one must be when the evidence of the applicant is assessed. Once again in this document, on this document he is fabricating telephone conversations.
And then also for non-disclosure, this document was another attempt to cover up the murder of Janine, a document that he was the author of and that he prepared. One would have thought that if you really want to give a full disclosure, that this document would have been made available and be totally open with the Committee to say you know I actually took this into account, I had this line in mind, but I - it actually never developed, but this is what I did.
As far as the - we submit as far as disclosure is concerned, that the evidence is controvertible, that the applicant has not made full disclosure in these proceedings and that the application should be dismissed on this basis alone.
If however, the Committee accepts that he has made a full disclosure, which we must make clear that we can't see any basis for coming to such a finding, but should such a finding be made that he has made a full disclosure and that this Committee accepts his version, then we submit that even on his own version, this was not an act associated with a political objective as required by the provisions of the Act.
When dealing with that, I am not going to quote as far as the political objective is concerned, Section 20(2) of the Act. I am convinced that the Committee Members have dealt with that specific Sections on various occasions, but the important parts of it is in the course and scope of his duties, express or implied authority, members or supporters of such organisations, committed bona fide with the object of countering, and as far as (f) was concerned, the reasonable grounds believed that he or she was acting in the course and scope, so those are basically the Sections that we submit is relevant.
Then as far as 20(3) is concerned, that deals mainly with the factors that you have to take into account when you answer the questions asked in terms of Section 20(2), and those are shortly motive, context, legal and factual nature, object or objective and then the order or approval, and then the directness and proximity of the relationship and proportionality.
It goes further and I just want to say something about this regarding a question earlier asked by one of the Panel Members, but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted (1) for personal gain, (2) out of personal malice, ill-will or spite.
I think as far as that part of (1) and (2) under subsection (3) is concerned, the question was asked, a legal question as to whether if there were more motives, whether in such a case, a person may qualify in terms of the Act, for amnesty.
We submit that if we look at (i) and (ii) which deals with for personal gain and out of personal malice, ill-will or spite, for personal gain, can be a motive, a motive, a financial motive, it can be a motive for personal gain in the sense of to safeguard your career. It can be for a motive to see to it that you don't, to do away with say information that may get you into trouble, it may be a wide range of things that can be brought under this subsection for personal gain.
Out of personal malice, ill-will or spite, one can just think for spite, what is personal malice, ill-will, it is a wide range of motives that can play a role, and we submit that if we look at the Act, it specifically says but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted and then it defines it.
It seems that the, and we submit that if should there be such a combination of motives and personal gain and malice or ill-will or spite comes into the picture, as well as other motives that can be brought under that umbrella, that a person does not qualify for amnesty.
As far as the course and scope of employment is concerned, I would just like to make the point that at the time of the murder, the applicant was based in Intelligence Unit of the Security Police in Pretoria and responsible for Personnel and Staffing issues and particularly the psychometric testing and analysis of Security Police agents, informers and handlers. He was not and I think that is common cause, it is common cause in fact, part of any of the known assassination units, such as Vlakplaas, does not claim to have been a member of such a unit, nor to have ever previously committed or being instructed to commit any murder.
I just would like to make the point here that this makes this case, the applicant's case a little bit extraordinary to allege that an ordinary Security Policeman, not based to one of these units, can on his own just make the decision as they sometimes put it, neutralise, what we know to kill a person, that such a person can make such a decision.
The express authority, it is clear and I think the applicant concedes that he did not receive a specific order. As far as the implied authority is concerned, the closest that anyone got to it during these proceedings, was that Gen Erasmus who was not his superior at the time, said to him and who denies having given any specific order or said anything such as manage the problem, that could have been construed as an order to kill his wife.
That is the closest he came to implied authority. He says at some stage Gen Erasmus said to him that he must manage the problem. That is the closest. On Gen Erasmus' evidence it is clear that he made it clear and said that there was on no occasion, did he say anything that could have been construed as an order for Bellingan to kill his wife. Implied authority, we just would like immediately to make the submission very short and sweet, and that is that a general authority that Security Policemen had to kill people when they thought that these people had to be eliminated, in the interest of the State or the making of this allegation that this was in fact the position, is absurd. I don't have to take that any further.
We know that Gen Erasmus says he denies that he was aware of any implied authority in terms of which the applicant might have considered himself authorised to kill his wife. He said, yes he said, I am not aware of such a thing, but there is no, not a shred of evidence from anywhere to say that such an implied authority was actually existing at that point of time.
As far as the member of a political organisation is concerned. He does not claim that she was a member of any political liberation movement, in fact on the evidence, she rather seem more closely to have been connected to the Security Police if one has regard to the evidence of Bellingan himself.
And then if we look at the reasonable grounds, applicant, we submit again that he had no reasonable grounds for assuming that he had the authority to kill his wife.
We say that on his own evidence, his own evidence doesn't go far enough to say that he had reasonable grounds to believe that he had the authority to kill his wife.
As far as this aspect is concerned, a question that arises all the time when one looks at motive, when one looks at reasonable grounds, when one looks at political objective, when one looks at the method that was used, the one question that begs an answer here is if there is any substance, any substance, we will submit there is no substance in what he says regarding a political motive or a political problem, but if there was any substance whatsoever, in what the applicant has told you regarding the danger that Janine constitutes, that she was a threat to the National Security, to the peace process, to the peaceful transition into democracy, if you accept anything in his evidence, the question that does not, or that begs an answer is why did he not, if it was so, report this matter to someone in the Security Police, his superiors, why did he not say to them, this is the situation, now you manage the problem?
If she was such a threat and he reported it, and someone in the police, in the Security Police would have gone far enough to actually decided to kill her, he wouldn't have been asked to do it, it would have been a professional assassination, it would have been Vlakplaas or someone else, but he, himself, would not have had, would not have been tasked with that task.
This is something that has never been explained, not in his own evidence, why he elected himself to go and to commit the deed himself, his own wife, his own kids there, but he doesn't even report it to a person. That is a decision, when a person takes a decision like that, the decision itself can never, it was never properly explained in these proceedings, I submit it cannot ever be properly explained, because it goes against human nature.
As far as the motive is concerned, at the hearing the applicant relied on four factors that motivated him to kill the deceased. You will recall the first factor was the conversation with someone at Weekblad, the second - Vrye Weekblad, the second one was the taped conversation with the same person where she said she would mail a list of hits that weekend, the third factor was the telephone conversation which the applicant had with Judy and the fourth one was the conversation that he had with the deceased.
We have already made the point that although these are some of the most important, actually the crucial information or the crucial parts of the evidence regarding the motive, it wasn't contained in the original application, and that if one reads that together with what the applicant stated in Exhibit A, page 4, paragraph 6, it immediately leaves the impression that these conversations, if they took place, the telephonic conversations did not have the content that the applicant and Judy White would like you to believe, it had.
It says, the relevant part was immediately prior to the murder, my personal relationship with Janine was very good, we had plans to buy a home with two studies, so that we would be out of each other's hair. Janine seemed content with me and was also happy at work. She was about to be promoted, however, she had a morbid dislike of my work, and I was not one hundred percent certain that she would not in future divulge the information she had obtained.
That, although the applicant did his best to qualify that, he to a certain extent confirmed that when he said in evidence here, during last week, that he thought she wouldn't divulge this unless she spoke to him again, she would speak to him again, she would wait for another opportunity to speak to him.
He said that during cross-examination here, actually confirmed this, he wasn't one hundred percent certain ... (tape ends) ... he admitted it to a certain extent, well, we submit that it is an overstatement, it was a gross overstatement in the circumstances to try and link the death of his wife to the future, to the transitional process that this country was going through.
The applicant relied on the fact that the deceased was in possession of the so-called hitlist. We have dealt with it, where we said that the whole existence of the hitlist is in question.
We know that his superior Officers, Erasmus and Oosthuizen were not aware of the existence of such a hitlist. He never reported the matter to his superior Officer that the hitlist, a very very important document, that can really affect his version, the future of this country, he doesn't even go and report it. He doesn't even go and report it to his superior, let alone to the Commissioner of the South African Police or even higher.
We know that the hitlist was never found. We know that the hitlist, if you look at the names that appear on the hitlist, it deals with most of the most sensational matters and killings, political killings in this country's history.
We know that it took not only the changes of 1990, not only an election of 1994, but it actually took the establishment of the TRC to get to a situation where most of these incidents has actually become public knowledge. You must take into account, that the applicant when he drafted his amnesty application, when he did so, at that period of time, these things were all publicly known and what I find interesting, what we find quite significant, is if you look at the list, the list mentions people, victims, perpetrators, incidents that has become known over the years, publicly known.
We know that at this stage the Anton Lubowski murder, there is still no finding, there is still no clear indication, there is all sorts of rumours, but no one has made a finding yet as to who it was who murdered Anton Lubowski. Coincidentally, significantly on this list he says Anton Lubowski, there is no perpetrator, so it is almost as if it goes with the flow of things, it has become public, we know that Lubowski's situation or that specific murder has not, the truth has not completely come out there and he fails to name the perpetrator.
I would submit Mr Chairman, that it is highly unlikely, if not almost impossible that the applicant, because we know in these amnesty applications, we had certain people coming up with a specific incident that captured the imagination of the public over years, and something comes out and then that he could have been, could have had all that information back in 1990/1991 and I submit that it is so improbable that it should be rejected.
On that same score, when he was asked again why were you in possession of the list, his explanation was at best, incoherent. It was a typical Michael Bellingan answer in these proceedings, where he elaborates without giving any contents to the answer.
We just make the point further and I think I have alluded to it that it is still inexplicable why the applicant would have tasked himself with the murder. That brings me to the order of approval.
I have dealt with it to a certain extent. It is common cause that there was no order. There is no evidence adduced by the applicant which tends to show that there was any approval from anyone, anyone approved this deed. No evidence whatsoever.
Gen Erasmus' evidence in this regard, is also quite clear. It can never be construed to be an order or authority or approval for the murder of his wife. I can also as far as order and approval is concerned, deal with Vlakplaas and say that once again one would have expected that if approval was necessary or he wanted to obtain an order, that he would involve his superiors and that a special unit would have been involved to carry out the assassination.
I have made the point, but just for completeness sake, there is no evidence or even a suggestion that the superiors of the applicant, condoned the act. He could find, the applicant could find no person in the former Security Police establishment that would back up anything that he stated to this Committee. The only person that he called at this hearing was his own sister, to give some support for conversations he stated, that motivated him.
We submit Mr Chairman, that the evidence of his sister, a civilian who is not a Security Policeman has little value and it is clear that she attempted in the past to assist her brother, no matter what he required, and that she is still perfectly willing to support his lies.
As far as proportionality is concerned, this is also a factor that you have to take into account, we say that the proportionality for the murder, even on the version of the applicant, was in no way proportional to the objective sought to be achieved.
Furthermore as already pointed out, there was no guarantee that the murder would in fact achieve the objective that the applicant claims he sought to achieve. Turning back to the - I have shortly mentioned to you, I mentioned in a legal sense, personal gain as against personal malice.
As far as personal gain is concerned, we submit that the applicant acted entirely out of personal gain and personal malice at all times. Personal gain we say in a sense yes, to protect his career, to prevent the exposure of his own personal fraud, to avoid having to pay his wife any divorce settlements and we know what he said about the contract, but that is not the point, or get embroiled in what would have been a messy divorce, and to protect himself from imprisonment.
We say that he acted with personal malice, ill-will and spite and we say this is supported by the nature of the relationship that he had with his wife, and also by the excessive brutality of the murder. When you look at proportionality, you look at the brutality, something that also goes unexplained as to why a person, if we get over all these hurdles from a political motive, up to accepting that for some or other reason it was necessary that this person had to be killed, and then accepting that no one else should kill her, but it is okay, her husband should kill her, if we get over all these hurdles, and one get to the last and you say to yourself but why in this manner, why so, why with this excessive brutality, it is also a question that we submit, has not been answered.
Mr Chairman, we would just very briefly refer to one or two comments made by my learned friend during his argument to you, referring to the evidence of Eugenia, he actually made the point that she did not tell the Investigating Officer at an early stage that she suspected Michael Bellingan.
We know what her answer was, her answer was she was afraid, at that stage she was afraid of the police. What I would have expected was that my learned friend put that to the witness in the sense that you at the time, did not suspect him, this is a recent fabrication that you made up right now, if he did that, it would have given the party calling her, the opportunity of proving her statement because there is an allegation of a recent fabrication and to prove the statement of the witness at the time, but it wasn't formulated, his cross-examination wasn't formulated in that manner, he did not say you fabricated it recently.
As far as that point is concerned, I don't think there is much more to say about that.
Then as far as the document is concerned, the application and the discussion document, merely a discussion document. I submit, he submits the probabilities favour a construction that this was really a discussion document. I will just make the point that I submit that the probabilities are overwhelming in favour that that was the initial amnesty application, and that is what the probabilities tell us.
ADV BOSMAN: What do we make of the applicant's answer at one stage that he had forgotten about the discussion document?
MR RAUTENBACH: I think Mr Chairman, it is evidence that cannot be believed in the circumstances, that he could have forgotten about the application. Surely it must be something when he was the author of that document, and we know that he had a document in his own handwriting, there goes effort into it. He knows the body that he is dealing with is the Truth and Reconciliation Commission. He knows that what his motivations, his own thought process for introducing these two accomplices, he has to do a bit of manoeuvring as far as describing the events, are concerned. He has to for instance as we see from that document, protect himself to a certain extent, that he is not really so close to the murder but that he is also on the scene.
Doing that, a lot of thought goes into it, a lot of planning goes into it before you put it on record and you make it available to third parties. To say that he forgot about it, my submission is that it just cannot be believed.
CHAIRPERSON: There have been so many sources and documents and so forth and so on, isn't it possible that he could have forgotten and that is why there was a contradictory version presented at a later stage?
MR RAUTENBACH: Just to - not to repeat what I just said, but one must consider that having proper regard to what the topic was. This was not a topic about the Stratcom event that happened in the 1980's and that there were for instance ten instances where they put stickers on motor cars, and that he is confronted later with the fact that there was actually two forms that were given to the Truth and Reconciliation Commission and the one form mentions nine such incidents and the other form mentions ten such incidents.
If that was the case, it was something like that, there may have been an argument, but the difficulty we have in this case with this first application, is that we know that the document, the written notes, the first, let's call it the first amnesty application, is an application that deals in detail with the murder. We know that it is totally different from his version at the trial.
We know that he introduces these two accomplices, we know that he wants to say I was there, I lied at the trial, I was there, I went into the house, the idea was this and that he attempts to, at that stage he sees that as a version in order to get amnesty. Mr Chairman, it goes further, a version in order to get his freedom back, because he relies on amnesty to get out of prison.
He's got a very long prison sentence over him, and that is in his own document, a version that he fabricates. A version that his freedom depends on. So if anyone says Mr Chairman, that there were so many documents, you know, I actually forgot about that one, it is a version, if that is his version, it is a version that just cannot be believed. It is just, there just goes in too much effort, too much fabrication, too much covering up, too much protecting himself, that he may forget at a later stage that he has given, has made such a version available or that he was responsible to be the author of such a version.
CHAIRPERSON: Yes, no, I follow what your position and your argument is, but that presupposes that the applicant had intentionally prepared one version, submitted it to the TRC and then consciously prepared a second contradictory version, and also submitted that to the TRC. Isn't it more probable that he, there were so many cover stories and fictitious documents and constructions and so on, that he genuinely forgot and he had forgotten what cover story he had given earlier and when his Attorneys came on the scene, he gave them the last version?
MR RAUTENBACH: Mr Chairman, my response to that is that yes, let's accept that that is a possibility that cannot be entirely excluded, but we submit rather that he submitted the first application, that was his version and that he then, unlike his evidence suggests, came to the conclusion whether it was during the discussions with Kjellberg, whether that was during discussions with other people, that the version wasn't good enough and that he then decided to underplay that version to say to Kjellberg but that is not my application, and that he realised that this version is a problematic version.
The difficulty is, someone must have said to him at some stage you are asking for an amnesty on murder, but you know that is not actually your description of the events there, that does not really make you guilty of murder and you should rethink it, and that the applicant realised well, I have a problem. And we just submit that that is more likely, but yes, the first one may not be entirely excluded.
ADV BOSMAN: There is of course another possibility, what do you say about this that the applicant received his notes back, he did not realise that the document had been typed out and he got a letter afterwards saying where is your annexure, isn't that perhaps the more probable?
MR RAUTENBACH: Mr Chairman, that postulates a situation where he gets back his document, he thinks I've got my papers back, he knows I had a bit of a problem in what I told them there, let me rather, I have it back, let me rather now do an application on a completely different basis. That is also a possibility.
But all three those possibilities in any event, seem not to be reconciled with the version by the applicant. There was some criticism against the evidence of Eugenia, I am going to refer to it very briefly.
I would just like to say that despite the information that was given to her by Janine, we know that she saw the broken staircase, we know that she saw the marks on the body of Janine and we know that what she says, especially what was conveyed to her, corresponds with the diaries. We also know that she saw the documentation so that her evidence cannot be merely described as evidence of a total hearsay nature.
There seems to be a link between the diaries and what she says and between what Janine told her and what she observed. As far as the clothing incident, my learned friend played it down, and he said what about this incident, she went to the car, Bellingan, Mr Bellingan took the clothing and he took it back into the house, that is what he should have done. It is not as easy as that, the evidence was quite clear that what happened was there were clothing in the car, there was a question asked by Mr Bellingan. The question was to the effect whether the clothes should be taken to her parents' house or to her brother's house, clearly indicative of some problem between the parties at the time, and then of course the evidence where she said that Janine Bellingan indicated, no, she is waiting for the police.
Surely if we take a look at the incidents in context, it is only indicative of one thing and that is a serious problem between the parties, and once again, this total bare denial by Mr Bellingan.
Then just a remark regarding the mixture of motives if there was such a mixture, the mixture of motives of course does not, are not to be reconciled if there is such a possibility, with the evidence of Mr Bellingan, because he told you clearly that he could switch on or off, it was either the Security operative or the loving husband.
My learned friend made the remark, I am not going to say much about the evidence of Judy White, I submit that I can sum it up by saying that she was not a satisfactory witness at all, that some of her answers to questions asked, were actually ridiculous.
As far as my learned friend pointed out that she was really right from the, she had no thought in her mind, he was in Pietermaritzburg. We must not forget the evidence that she was asked and she actually conceded that on the night in question, the Saturday night, Lydia was making these allegations that he was a suspect and there were other evidence in questioning which points out that it is highly unlikely that she did not become aware at a very early stage that Michael Bellingan was a suspect and that being, but of course she did her best to deny that.
Then, my learned friend argued that Erasmus' evidence should be rejected. I can only answer that allegation on what basis? There is definitely no basis on the record why Erasmus' evidence can just be rejected.
In conclusion Mr Chairman, we submit on behalf of the family of the deceased that the applicant does not qualify for amnesty in terms of the Act, that he has not complied with the requirements of full disclosure, nor revealed any political objectives.
We submit that the applicant is a violent and abusive man who was in an unhappy marriage and who killed his wife in order to prevent the possible disclosing evidence of his personal fraud and criminal activities and as the most convenient way of ending an unhappy marriage. That is the conclusion that we come in our Heads of argument.
Mr Chairman, may you please bear with me for a moment. Mr Chairman, that is the argument on behalf of the family.
CHAIRPERSON: Thank you Mr Rautenbach. Mr Lengane?
MR LENGANE IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, what I have here is just a very brief summary of what we intend in the future to submit in the form of written submissions on behalf of NUMSA in opposing this application.
I am going to just summarise as Mr Rautenbach has done, although I will be much, much briefer than that and summarise the structure that this argument, I am advised, should take when finally it is submitted to yourself.
The basis of our opposition will be the requirement of full disclosure, of course we will not make any submissions in respect of the formal requirements of the Act. We will largely base our opposition on the basis and argument that there was no full disclosure, the truth was not told to this Commission and that in fact, the lies that the Committee was told by the applicant, were lies that have a very material bearing on the very criteria that are stipulated in Section 20(3) to which in order to adjudicate an application such as this one, your Committee Mr Chairman, is enjoined to have regard to.
Some discussion when Mr Hattingh was making his submissions, was about the provisions of subsection (2)(b) and (f) and whether he was relying on between the alternative. We propose at this stage of oral argument Mr Chairman, not to delve to much on the question of scope and cause of duties, but to specifically here argue that these acts as far as Section 20(2)(b) is concerned, were not committed with any bona fide object of countering or resisting the struggle, that as the applicant alleges was being waged by NUMSA.
On that basis alone, it cannot be said that the applicant can succeed on the basis of subsection (2)(b) but on that basis also (f) falls away and I am not going to get too much into that.
We will also try and show that the applicant's application must be refused because as I had said earlier on, of the lies that he had told in respect of the criteria. The evidence is very clear Mr Chairman, that in cashing NUMSA cheques, the applicant was motivated by personal gain and to some limited extent, the applicant conceded that fact at the hearing in Pretoria.
I need to emphasise that he did so to some limited extent, but we need to also emphasise that it was a concession and an admission on his part, to have done so. In so far as the purpose for which WH10, which was the interception project was concerned, we submit Mr Chairman, that the evidence of Mr Erasmus must be accepted by this Committee and his evidence was to the effect that Mr Bellingan's version as to the reason why he was asked to intervene, that the cheques were getting stale and so on, could not be the truth because in Gen Erasmus' own words, those cheques were not to be kept for any long periods, but to be released or shredded as soon as possible.
Of course he did not specify the circumstances under which it would happen that they are either released or shredded, but then the question of them getting stale, certainly does not arise, if this testimony is accepted, which we submit it must be.
Again of course, he substantiated that by outlining to the Committee what the purpose of WH10 was, that it was a twofold one, to gather intelligence as to the source of funds directed at "radical organisations" of which NUMSA would be one, and that secondly this was really done to assist the government that at the time was contemplating to pass some kind of legislation if I understood him correctly, intended to confiscate this funds in the future.
On those bases, the version that these cheques should have been cashed, obviously is not what was intended by this project. In so far as the context, the second part of this criteria is concerned, it is common cause Mr Chairman, that there was a project, the WH10 project, which was according to both Gen Erasmus and the applicant's version, directed at organisations of which NUMSA would be one.
In fact according to the affidavit of a certain Major Charl van der Merwe, and this affidavit the applicant relies on for his application. This affidavit Mr Chairman, WH10 is described as having entailed a risk, a very great risk of abuse by individuals for their personal gain, and as I said, this is the affidavit which the applicant relied on.
But the affidavit goes further to say, and I quote the Afrikaans phrase, it says that the project therefore needed a "gesonde bestuursprogram" to prevent this very abuse.
Gen Erasmus' evidence yesterday was to exactly the same effect, but Mr Chairman, the applicant has told this Committee at the hearing in Pretoria and it has been repeated here, that there was absolutely no measure of control, no management instruments that were put in place. He answered to Adv Trengove’s questions in the affirmative that he accounted to absolutely nobody about his activities in this project.
So, it will be our submission on behalf of NUMSA, Mr Chairman, that therefore there existed around where the applicant found himself at the relevant time, there existed an opportunity that was created by his employers, for now we know that this was an official "project", so the context was a situation where the opportunity and the means were created for the applicant to we submit, steal the stolen property of radical organisations from his employers.
He simply took advantage of it. But we want to submit an alternative argument as well, that if this was not pure theft of stolen goods by the applicant and if the Committee feels that perhaps there was an instruction and in this case, it will have to be Gen Erasmus' instruction, if the Committee feels that there was such an instruction, then we submit, we shall submit Mr Chairman, that that instruction would not have been given by its source and it would not have been carried out by Mr Bellingan on behalf of the State or the Security Branch, but for the personal gain of both the applicant and whoever else the source of that instruction would have been.
Probably one has already touched upon slightly on the lie that was told by the applicant in so far as it is relevant with regard to the mandate or the order with which the actions, I mean under which the actions were committed. The evidence of the applicant is very improbable for a number of reasons Mr Chairman, and I am sure we will elaborate on these ones, I've got a list of two or three, but we will elaborate on these in due course.
We heard that at the relevant time, the applicant was in fact stationed not at Stratcom, which would have been the Section which was responsible for this programme, but he was based at the Personnel Development Section, working with the psychometric equipment and things related to psychometric situations.
Secondly Gen Erasmus, and this was not controverted by the applicant or on behalf of the applicant, Gen Erasmus actually refuted the applicant's evidence which we add, was very improbable, that within the rest of the police there existed what he called customary practice for an Officer pro-actively of his own, patriotic initiative, and without any specific authorisation to engage himself, interest himself in the operations of a section other than his own, without his own superior's knowledge, without the knowledge of the superiors of the other Section, in fact we heard when Mr Chairman asked from Gen Erasmus that very stern disciplinary action would have been taken had it come to the knowledge of the superiors that any officer behaved in that manner.
We also heard that Gen Erasmus conceded the point that the only reason such action was not taken against the applicant, was because the applicant was able to pass through the net undetected. We submit that that must be accepted.
We have already said Mr Chairman, that it was improbable and I just need to state this one thing again, I should have done so earlier, that the improbability of Gen Erasmus having given this instruction, is in fact confirmed that the applicant says well, there was a Colonel Putter somewhere who was not delivering as far as these cheques was concerned, was not delivering the goods, the cheques were getting stale and all of a sudden, here is a new man who does not belong to this Section, brought in by Gen Erasmus who says but you, Michael Bellingan, need not report to me about the very progress that concerns me so much.
That Mr Chairman, we find very, very indicative of the improbabilities of the truth of the statements of the applicant.
Lastly Mr Chairman, the objective. The applicant has in his application gone at tremendous lengths, pages to explain how he was committed to fighting the Marxist onslaught if he called it that, and how the moral of the Security Forces were going to be served by his actions in NUMSA, but we see a man who because Janine has been giving him so much problems, three months after opening Nicholas Umsa, he closes that account and forgets about his commitment, his patriotic commitment to the cause, he does not follow up with anybody if they are continuing to fight Marxist NUMSA as he calls it, the second largest union in the country at the time.
No interest at all, he doesn't bother to find out, in fact the only other thing that happens with NUMSA is that Namedi Umsa gets opened and he knows nothing about it. We find that to the extent that he says that his objective was to as he lists them in his application, we find that that could not have been the objective and if that were the objective, a follow up would have followed after N. Umsa was closed and things like that.
Mr Chairman, we have not at all dealt with the legal and factual nature of the Act. We suppose that we have had, the evidence will show how much was taken, we are not able to know if that is all that the applicant took. We will address you on that in our written arguments.
We have also not summarised our argument as far as proportionality and the proximity of these actions to the objectives, was concerned. That the applicant ... (tape ends) ... the requirements of the Act and that this Committee cannot grant him amnesty.
CHAIRPERSON: Thank you Mr Lengane. Mr Wagener, have you got any submissions?
MR WAGENER IN ARGUMENT: Mr Chairman, at this stage, I do not intend filing written submissions at a later stage. I wish to make my submissions now and thereafter, be silent for ever.
CHAIRPERSON: Please carry on, we are not complaining Mr Wagener.
MR WAGENER: Mr Chairman, in terms of Section 20(1) of the Act, that is 34 of 1995, you shall grant amnesty to the applicant if at the closure of these proceedings, you are satisfied of three aspects. The first, that his application complies with the formal requirements of the Act, in the second instance, that the acts for which amnesty is sought, are acts associated with a political objective as defined in this Act and thirdly, that the applicant has made a full disclosure of all the relevant facts.
Now, on the question of you being satisfied or not Mr Chairman, I would wish to make some submissions.
I have heard argument before that this Act places no onus upon an applicant for amnesty, so the argument goes, that had that been the situation, the Act would have said that an applicant should satisfy the Committee. Having said that however, Mr Chairman, you must still satisfy yourself some way or another, there has to be some standard of evidential value.
My submission is that the correct approach for you would be to stick to the well known standard of our civil law, namely a balance of probability. In other words, Mr Chairman, you should be satisfied of the issues I have just mentioned, on a balance of probabilities.
Furthermore Mr Chairman, regarding the issue of being satisfied or not, one should remember that this present process that we are here for, stems from the post-script of the previous constitution of our country or the so-called Interim Constitution, that is Act 200 of 1993 and if you will allow me Mr Chairman, perhaps I can briefly refer you to that.
If I am allowed, I will read to you this Constitution provides a historic bridge between the past of the deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, believe or sex.
I will leave out certain parts. The adoption of this Constitution lays the secure foundation for the people of South African, to transcend the divisions and strife of the past which generated gross violations of human rights. The transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilty and revenge. This can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation in order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the cause of the conflicts of the past.
Mr Chairman, these same sentiments are also echoed in the preamble to our present Act. I won't read this, but I would merely wish to refer you to a judgement of his Lordship, Mr Justice Ismail Mohamed while he was sitting in the Constitutional Court and that is the matter of the Azanian People's Organisation, that is AZAPO and others v The Republic of South Africa and others. This judgement is reported in the South African Law Reports in 1996 (4) SALR 671, and it is a judgement of the Constitutional Court. In this matter, the whole issue of the granting of amnesty was extensively debated and decided upon.
On page 698 of the judgement in paragraph numbered 50, the learned Judge said the following: In the result, I am satisfied that the epilogue to the Constitution, authorised and contemplated an amnesty. In its most comprehensive and generous meaning, so as to enhance and optimise the prospect of facilitating the constitutional journey from the shame of the past, to the promise of the future.
All I am saying Mr Chairman, is that when you have to consider the question whether you have been satisfied by the applicant or not, as referred to and you may end up being in any doubt, what I have just quoted to you, seems to suggest that you should rather grant amnesty than refuse amnesty.
CHAIRPERSON: Yes, that might very well be so, although of course that decision and that dictum that you referred to, was apropos the argument of the applicant in that case that the amnesty provision is unconstitutional because it deprives a victim of his or her civil or criminal remedies, flowing from the act for which amnesty is granted.
The argument was that you could possibly grant a criminal indemnity but you can't take away the civil remedies of a victim in the light of international law and that sort of thing, so when Justice Mohammed refers to an amnesty in its fuller sense, he refers to the consequences of granting amnesty, in other words the effect is to wipe out effectively any criminal or civil consequence of the act.
That appears to be the context of that particular dictum, but you know, taking into account the other submissions that you have made in regard, in the spirit of the process that the TRC was created for and of which this Committee is a part of, of course it might very well be a proposition with merit.
MR WAGENER: Thank you Mr Chairman. Of course I agree with you in relation to the judgement, but the only point that I was trying to make is that if the Committee ends up being in real doubt on the question of being satisfied or not, my proposal is that you should lean towards granting amnesty, rather than refusing amnesty. That is the only point.
Having said all that Mr Chairman, I must immediately put on record, I find myself in a somewhat awkward situation. The individuals that I represent here, are all ex-colleagues of the applicant. They were all members of the Security Branch of the South African Police. You have heard evidence Mr Chairman, that the applicant was regarded as a good or a, he was held in high esteem by his colleagues as a member of the Security Branch.
For obvious reasons Mr Chairman, in general, my clients would prefer to see all amnesty applications by colleagues of theirs, being granted if possible, at all.
That is why my initial instructions were not to formally oppose this application, but to merely put the version of my clients on record. However, at this stage where we stand now, and having heard all the evidence, and all the arguments, I have to make the submission to you that it seems as if the application by the present applicant, may or even should be denied on one or more of the following grounds.
The first would be Mr Chairman, and I will address you shortly very briefly on each of these grounds, the applicant has failed to meet the requirements of Section 20(1)(a), that is the formal requirements of the Act. In the second instance that the acts for which amnesty is sought, do not comply with the definition of acts associated with a political motive.
In the third instance, that the applicant has failed to make a full disclosure of all the relevant facts. In the fourth instance, although it can be argued that this should be part of the second ground, that the acts were committed or at least partly committed for personal gain.
If I may then Mr Chairman, return to the first aspect, one should remember what is said in Section 18 of the Act, namely that an applicant who wishes to apply for amnesty, should file his application before a certain prescribed date in the prescribed form and the form has been printed in the Government Gazette for everyone to see what that entails.
The first cut off date was the 14th of December 1996, thereafter, it was extended until the 10th of May 1997 and thereafter for a final extension up to the 30th of September 1997. Mr Chairman, I have heard argument here on behalf of the applicant, that the controversial document, the so-called discussion document, is not part of his application and it was never intended to be so.
If that is accepted by you, the argument may arise what did the applicant do up to and prior to the final cut off date and then the argument may arise that all he did, was to file a document to be found in Bundle 1, on pages 1 - 6 I think, and the argument may further arise whether that document can be seen as compliance with Section 18, I think 18(1) of the Act.
Because it can be said that this so-called skeleton application falls into the same category of that of the so-called ANC leadership which came before the Supreme Court in Cape Town, last year and which were rejected.
On the other hand Mr Chairman, my own submission to you is that the discussion document seems to be part of the initial application based on the objective content thereof, and in view of the evidence of Mr Kjellberg, and that it should be regarded as such, by you.
While I am on the topic of this document Mr Chairman, and if you would allow me, the question was put to Mr Hattingh as to whether and we all know that that document apparently contains a lie, regarding the murder of Mrs Bellingan, whether that isn't fatal to his application. It was also put by one of your Commissioners as to whether that does not amount to an abuse of the process.
In this regard, Mr Chairman, I may refer you to another matter that came before another Panel, but where Commissioner Bosman was also involved in, where I appeared on behalf of an applicant for amnesty, one Marthinus van der Schyff, who filed an amnesty application under oath, giving a certain version, thereafter the matter was set down for hearing, it was postponed as partly heard and at the commencement, he changed his version materially, but at the last occasion Mr Chairman, he told the Committee exactly why he did it and the end result was that his second version, was accepted by the Committee as being the truth and he was in fact granted amnesty.
But the important thing Mr Chairman, is that in that matter, the Committee accepted his motivation why he did what he did, and they accepted his second version as the truth and they accepted that he at that stage has made a full disclosure of the relevant facts.
So, my submission to you is that the filing of a later amended or second version, does not necessarily mean that it should be fatal to the application as such, but that regard should be had to the other aspects that I have just mentioned to you.
Mr Chairman, regarding the argument that the applicant has failed to comply with the provisions of Section 20(1)(b), the issue of an act associated with a political objective, I would wish to make a few brief submissions to you.
Regarding the NUMSA matter, the applicant relies on a direct authorisation from Gen Erasmus. We all know that that is part of the definition to be met in terms of Section 20(2)(b). Mr Chairman, all I can say is that you have heard the evidence of the applicant, you have heard him testifying that the General gave him this specific order at a stage when he was no longer a member of the Stratcom section, that he proceeded with this operation, that he never reported back.
You also saw the evidence of his immediate Commander, then Colonel Oosthuizen, saying that he had no knowledge of this operation at the time. This was again repeated by Gen Erasmus yesterday under oath when he said that the first time that the particulars of this operation by the applicant came to his knowledge, was in the course of this present proceedings.
Mr Chairman, it is argued on behalf of my clients, that the applicant had no authority whatsoever to embark upon this operation. In that respect, he has failed to meet the requirements of Section 20(2)(b).
Regarding the murder of his wife, you have also heard the evidence of the applicant, all of it, and I must immediately confess Mr Chairman, that I am on the same vein as Mr Rautenbach, not sure exactly what the applicant was trying to convey at all times. The way I understand his evidence, he in the first instance, had embarked upon a highly secret counter espionage operation and in the course of that certain things happened which we all know now and which led to the death of his wife.
Mr Chairman, the evidence before this Committee by Gen Erasmus if properly analysed, amounts to the result that Mr Bellingan had no authority for this so-called counter espionage operation, that he did not even take up with the Head of the Counter Espionage Section, Mr Otto, this was in fact admitted by the applicant during his testimony.
For the murder as such, the applicant seems to rely on a number of documents available to the then Security Branch, lectures, circulars, there is a whole list of them referred to in the application. In respect of what was referred to as counter revolutionary strategies, he seems to base his authority on what was said in those documents and also on a remark made or apparently made, by Gen Erasmus, that he should manage the problem, that is the problem regarding to the possible break up of his marriage.
Mr Chairman, in respect of this last issue, one must remember that the conversation took place, I don't know whether we have the exact dates, but it seems to be about two years prior to the death of Mrs Bellingan, when Gen Erasmus according to the applicant told him to manage the problem.
You heard Gen Erasmus denying that, having said in those specific words, but that he merely said in the interest of the child, that the applicant should try and patch up his unhappy marriage, which in fact he did, because Mr Chairman, the marriage lasted a further two years and produced another child.
Even on the assumption and this is denied by Gen Erasmus, but even on the assumption that he did say the applicant should manage the problem, Mr Chairman, it is argued that that in the mind of no reasonable person, can be seen in any way whatsoever, as a instruction or a second or third or whatever level of communication as was suggested, that the applicant should on strength of that, go and kill his wife.
Even in so far as the applicant is relying in the alternative, on the provisions of Section 20(2)(f), that he had reasonable grounds to believe that he had the necessary authority, it is submitted that this, his deduction from what was said by Gen Erasmus, cannot be seen as reasonable or amounting to a reasonable belief at all.
In so far as you as a Committee also have to decide on the issue of a cover up after the murder of Mrs Bellingan, you heard the evidence of Gen Erasmus, this is denied.
With respect Mr Chairman, it seems as if the only cover up came from the applicant and no one else. Mr Chairman, it is argued that in the second instance, the applicant has failed to meet the requirements of Section 20(1)(b).
Regarding the issue of a full disclosure, I do not wish to dwell long on this apart from referring you to what was argued here by specifically Mr Rautenbach. On behalf of my clients, it is also argued that and now I am referring you to the murder of Mrs Bellingan, that the version put forward to you, is physically impossible and that you would therefore be entitled to reject that version and therefore come to the conclusion that in not telling the truth, the applicant has failed to make a full disclosure of certain very material and relevant facts.
In the last instance Mr Chairman, amnesty may be refused by you even though an applicant has met all the other requirements of the Act, if it is found that the acts for which amnesty is sought, were committed for personal gain.
I think Mr Chairman, that to approach this subsection on the basis that it, the purpose or the motive should be personal gain and nothing else, would render this subsection rather senseless because it is hard to imagine that someone may commit an act with one narrow motive only and nothing else. My submission is that if it is shown that the issue of personal gain played a substantial part, it would be proper for you to deny amnesty in terms of that subsection.
It is my submission Mr Chairman that the evidence before you show probabilities that that was in fact the case. You have been referred to some of it by my learned friends on the other side, and I assume it will be done in depth in the written submissions that will follow these proceedings now.
Coming back to my client, Mr Erasmus, Gen Erasmus, Mr Chairman, like my colleagues, I would urge upon you to accept his evidence, to accept his version and for that matter, to accept specifically the evidence that no general authorisation existed for a member of the Security Branch to purely on his own, embark upon an operation outside the ambit of his particular section, merely if it shown or be argued, that it is for the cause. I heard Mr Hattingh referring or making the statement that it can now be accepted that such general authorisations existed, I am not sure what he is referring to, I have heard no evidence to that effect and my submission to you is that no such authorisation in fact existed.
Therefore Mr Chairman, on behalf of the ex-colleagues of Mr Bellingan, the applicant, for who I appear, I have no option but to make these submissions to you that on a balance of probabilities, it seems as if he has failed to meet the requirements of the relevant Sections and that amnesty should therefore be denied.
CHAIRPERSON: Thank you Mr Wagener. Mr Chaskalson, have you got any submissions?
MR CHASKALSON IN ARGUMENT: Mr Chairman, I certainly did have a number of submissions, but being fifth in the line of people opposing an application, a lot of what I was going to say, was covered. I would however like to address the Panel anyway even if I do repeat some of the issues. It shouldn't be that long, my address, and I think in a sense, I bring a different tone to the proceedings, even if I do mention similar facts, so I will just ask for your indulgence.
CHAIRPERSON: We will suffer your echo Mr Chaskalson.
MR CHASKALSON: As we have heard the applicant in the present case, is a former Security Branch member who has applied for amnesty for a number of incidents.
This hearing has simply looked at three of these, the theft of certain moneys from NUMSA, the murder of his wife Janine Bellingan and issues relating to the cover up of his involvement in this murder.
At first glance the obvious question is how can a brutal spousal murder in the family home, be politically motivated but such a superficial approach is not fair to the applicant.
We must be careful not to make a judgement based on the initial horror of the case. The applicant simply has to comply with the requirements of the Act and if he does so, he should be granted amnesty.
The applicant is clearly an intelligent man and was also a good Security Branch Policeman. However, he is also a liar and a murderer, whether it was the blurring of right and wrong that must inevitably follow being above the law, or whether it was other issues which led to the murder, is irrelevant, because this murder was clearly not politically motivated and the applicant has clearly not made a full disclosure.
The applicant confessed to this Committee that he had lied at a number of earlier forums including the inquest and his criminal trial. In fact he received a compliment of being one of the most accomplished liars that the magistrate had had the pleasure of hearing.
It is also clear from the applicant's own documentation that he was trained by the police, to be a professional liar. In fact, he was expected to lie in order to be successful in his work.
But this past behaviour of the applicant, and whether or not he was a good liar, should not necessarily be held against him. He stated that he wished to take the TRC into his confidence and that his evidence before this Committee was the truth. Nevertheless, he repeatedly lied to this forum.
The Legal Resources Centre on behalf of the family, have provided us with a fairly detailed list of many of the lies that the applicant has told this Panel and I will try and steer clear from many of these issues, but there are a few incidents that I would like to look at.
The first is the fact that the applicant himself has informed us that he lied to the TRC. Here I am speaking about a document which has every appearance of an amnesty application, but which the applicant insists was merely a discussion document.
Mr Kjellberg has informed us that at all times he was of the view that the discussion document, was a valid amnesty application, the applicant intended it as such and that they discussed the discussion document in the context of the applicant's amnesty application.
Mr Bellingan does not recall discussing the discussion document with Mr Kjellberg. Of the two witnesses, only Mr Kjellberg is credible and his version should be believed.
I had mentioned that the applicant conceded he had lied to the Commission, it took him a long time to make that concession. Originally he was of the view that he had never seen the document, the discussion document form, and here I am referring to the Annexures, and conceivably, although it is doubted, from a purely semantic point of view, he may have been right, because what he was referring to was that he had authored a written document and this was a typed document which he alleges he hadn't seen.
Eventually after much prodding and pushing, he reached a point where he was prepared to admit to us that some of the ideas contained in the discussion document, could possibly have originated from him, but he wasn't quite certain of it. On and on it went until ultimately as he was confronted with more and more evidence, for instance the similarity between the two applications, he moved to a point where he produced a hand-written document which contains at least portion of the full document and admitted that he was the author.
But admitting the truth does not come easy to the applicant. It was asked whether there could have been a misunderstanding as to whether this was an amnesty application, or whether it was submitted for some or other reason, and I would submit that from the testimony before us, we would have to answer no. Mr Kjellberg has told us that he has discussed this document in a fair amount of detail with the applicant in terms of when an amnesty hearing could be heard on the matter and the fact that more information was required.
The applicant relies on a single taped conversation in March of 1997 in which he makes reference to a skeleton application, to fleshing out a document, to say that there was clearly the misunderstanding ... (tape ends) ... strange that there is no record of any of the other conversations which took place with Mr Kjellberg previous to that one, and indeed the conversations that Mr Kjellberg said took place around the content of the document and the handing in of the document.
The second aspect that is relied on by the applicant is the fact that in August 1997 he receives a letter from the Truth Commission saying no annexure is attached, please enclose it.
I believe there is a very simple explanation to this and that explanation is that the document was passed to Mr Kjellberg, Mr Kjellberg forwarded the document to Cape Town and for one or other reason, that annexure got lost.
It may not necessarily be a nice thing to admit, but this would not be a totally unusual occurrence, we are dealing with approximately 8 000 amnesty applications, and there have been various cases in which documents have been filed in the wrong file, and they have needed to be located and put in the right place. It is quite conceivable that Mr Brink, when he first received the file, did not have an annexure in it and simply sent out the request, the letter.
At that point, I believe the explanation for why the second application is handed in, comes in. The applicant got lucky and this I think to a degree, answers Adv Bosman's question earlier, why did he change versions.
I believe he submitted a first version, he saw that as the real version. He then had conversations with some or other parties, or on his own, realised that that version would not stand up and somewhere around that time, his Attorneys are informed that there is no amnesty application. I am not for a moment suggesting that the Attorneys were in possession of the first document. They then communicate to Mr Bellingan and say listen, time to get in that big application, let's do it, let's do it again.
Mr Bellingan simply went along with that. Regardless of the exact status of the document, it is clear that the applicant has presented two contradictory applications to the TRC. The argument of the applicant that he was not obliged at that stage to tell the truth in the discussion document, whatever its status, is astounding.
His explanation that he did not know who he was working with, he needed to give a bit to get a bit and that he was concerned about danger to his family, is nonsensical. Despite repeated opportunities to explain his reasoning to the Committee, he failed to do so plausibly.
The two documents are practically identical in almost all of their content, save for the fact that the count of the murder, differs. However, even in the fabricated account of the murder, contained in the discussion document, the applicant implicates inter alia the same people as in his final version.
The applicant's legal representatives were invited to clarify the position of the two documents prior to the hearing, but the elected not to do so.
The applicant in his own testimony neglected to provide an explanation for the two versions. The first time he gave us his nonsensical explanations, was during cross-examination when he was prodded and pushed. It is submitted that given the fact that the applicant has failed to take the Committee into his confidence, this fact alone will be grounds for the refusal of his amnesty application.
Another issue which is very difficult for us to believe is the bizarre account of the murder given by the applicant. With hindsight he argued that his actions helped pave the basis of the democratic future our country, and yet he set on this mission without making essential preparations. He hitch hiked between Pietermaritzburg and the Durban airport, caught the first available plane, drove to his Gallo Manor house, committed the murder, drove back to the airport, caught the first available plane, hitch hiked back to Pietermaritzburg, walked to a flat and met his sister.
This explanation is nothing short of absurd. For a start, the applicant has stated that he has caught two non-existent planes. In his testimony he provided specific times of flights, and only once it had been shown that this was impossible, has he changed the version, he now doesn't have a watch and it is the first available flights.
Even if we accept, and this is not necessarily done that he was on that eight o'clock flight, there is no possible way that he could have met his sister at half past nine. His sister was cross-examined on this point, about when she would have met him, and stuck with her version of between nine and quarter past nine and in her words, at the latest half past nine.
In re-examination two things were put to her, the first was that she didn't have a watch, that she may have been mistaken, in fact they are related, and the second is that it must have been later than half past nine, or it could have been later than half past nine.
Ms White, despite the prodding, didn't change her version and we are therefore, should accept the fact that at the latest the applicant met his sister at half past nine on the morning. If that is the case, he didn't fly between Johannesburg and Durban.
When the applicant discusses his motivation for the murder and why it needed to take place when it did and with such urgency, he gives us various reasons. He firstly delves into the background of the fact that Janine was leaking information in the sense of talking to other people.
He then relies on three telephone conversations, none of which are mentioned in his amnesty application. The first is between the deceased and Judy White, in which the deceased inexplicitly confessed that she was going to leak vital information which would sink the Security Branch and that her husband would be leaving the Security Branch.
Despite the strangeness of this account, let us momentarily accept it as fact, the second conversation is between the applicant and his sister in which she mentioned her conversation with the deceased. Finally the crucial conversation took place when the applicant telephoned the deceased and she volunteered the information that he should not worry as everything would be okay.
The applicant then informs us that those words and the way that he understands Janine, convinced him that she had made up her mind and she was about to release the information. He needed to stop it.
He then does a very strange thing. When he returns to commit the act, he doesn't wake his wife and discuss the issues with her, maybe to try and get her to change her mind. Remember the applicant has told us that he was still very much in love with her at this point.
In response to that, he says no, that would have been impossible, she would not have changed her mind. He doesn't ask her what happened to the documentation, where is the documentation, what documentation do you have, have you sent the documentation and when asked why he doesn't do this, he says oh, I don't need to do this, she would never have sent the documentation without first speaking to me. She would have tried to convince me that what she was doing, was right and the best for both of us.
Those two answers don't go well together. If Janine, if the applicant is convinced that she has not yet sent the information and in fact, she will try and convince him the rightness of her actions, she could not yet have made up her mind to release this information and she must have been able, she must have been open to persuasion.
The applicant therefore did not need to murder her at that stage. If he did, and on his own evidence, then the steps that he has taken to withhold the potential harm, is not proportionate.
I would simply submit that it is obvious that the applicant has lied to this forum on a number of occasions and therefore he could not possibly have made a full disclosure and therefore his application should be rejected.
Even if this Panel comes to a different conclusion in relation to the issue of full disclosure, the application should still fail on the basis that there was no valid political motivation. The applicant has failed to provide us with any official authorisation for the murder and simply states that it was necessary to safeguard the political future of the country and that he acted pro-actively.
This explanation is rejected. It is clear from the diaries of the deceased, that the applicant abused the deceased physically and emotionally. The applicant simply denied the dreadful litany of abuse recorded in the diaries and put it down to the figment of Janine’s imagination.
Why would she do this? The applicant has suggested that she was gearing up for a divorce and that this was going to be ammunition, she was vindictive.
I would suggest that a far more probable reason for this record is twofold, number one, that these incidents did take place, number two, that she had received advice from a Councillor to record a list of what had happened to her and this is a practice which I believe is standard in abusive relationships.
The fact that this was an abusive relationship, is not only recorded in the diaries and other evidence before the Panel, but it is also confirmed by Eugenia Mkaba. The contention from the applicant's counsel that all Eugenia does is point out some minor disputes, I do not believe is a good one. I believe that he has failed to fully understand what constitutes an abusive relationship.
The applicant has conceded to us that in all circumstances, his job came before his wife. A final indication that all was not well in the marriage, is undisputed tension between the two families, which preceded the murder. Today we sit in the sorry position where the deceased family had not seen her children since the day of the murder.
It is not necessary for us to explain why exactly the murder took place, save in so far as it was not politically motivated, a possible motive may be found in the fact that Janine was preparing to divorce the applicant. Instead of having to incur the costs of a divorce and the potential harm it may have caused to his job, the applicant chose to murder his wife and utilise the proceeds of her estate, to maintain their children.
In fact some of the money arising out of her pension moneys, was not even utilised for the benefit of the children, but solely for his own benefit.
The applicant's notion of right and wrong, were clearly blurred and he felt he could act with impunity as he was above the law.
It is therefore submitted that this act was not politically motivated and that the applicant is not deserving of amnesty.
The NUMSA fraud received less attention at this hearing as our attention was rightly focused on the murder. It seems clear that there was a policy of postal intercepts, however, it is not clear if there was authorisation to try and cash the intercepted cheques.
Gen Erasmus has told us that he certainly did not provide this motivation and he is further aware of no such authorisation. It is also not clear why the applicant, no longer a Stratcom member, should be tasked with this job. Even if, as he indicated it was because others had been unsuccessful, he could simply have come up with the idea in context and then passed this idea on to the Stratcom members, they could have opened any necessary accounts.
That this was a personal frolic of the applicant, is evidenced by the fact that there were absolutely no financial records kept of the accounts. In an organisation which had a tight financial policy, and where it was difficult even to requisition money to print stickers, the lack of financial control here, is inconsistent.
The closest the applicant could get to answering this, was to state that if he was ever asked to account to anyone, which never happened, he would have referred him to his bank statement. But this is nonsensical.
All the statement would have shown, was a number of cash withdrawals and not how the money was subsequently used.
Gen Erasmus denied any involvement in this matter and does not appear to have a motive to lie to the Panel. The applicant argued that because the General had not applied for amnesty for this offence, he had a vested interest in lying to the Commission. This argument does not hold water and if anything, can be used against the applicant.
The General is an amnesty applicant for various offences including murder. If this was a politically motivated act, why did he simply not add it to his amnesty application?
The applicant also tells us that he did not control the Geldenhuys account, but we have an affidavit from Mr Walkley which states that the applicant was fully in control of the account, and that Walkley operated on the applicant's instructions.
In fact if I am not mistaken, at some point the ATM card for this account, was in the possession of the applicant as well. Once again it appears as if there has been a blurring of right and wrong, and even if this started as some form of legitimate operation, it very shortly became an opportunity for the applicant to acquire money for himself.
It is therefore argued that the applicant acted for his own financial benefit and not for any political objective and accordingly, this aspect of the amnesty application, should also be refused.
CHAIRPERSON: Thank you Mr Chaskalson. Mr Hattingh, there is probably very little sense in asking you whether you've got any response at this stage, I assume that it will come with the rest?
MR HATTINGH: That is correct Mr Chairman, thank you.
CHAIRPERSON: Mr Chaskalson, can you just put on record what the specific agreement is in regard to opportunity to submit subsequent further ...
MR CHASKALSON: Yes thank you Mr Chairman, Mr Chairman, I haven't had an opportunity to finally confirm with my learned colleague, but what I am going to do is, I am going to suggest the dates that we had discussed yesterday and if the Advocate does have any problems with that, then he can raise them and we can with your leave, agree on them.
I would suggest that the applicant supply the parties with the information by Thursday, the 29th of April, that is Thursday a week. If for any reason, this information isn't given directly to any of the other legal representatives, I will make certain that it is couriered to them on Friday, the 30th of April, or it gets to them on Friday the 30th of April and then we will request their response the following Friday, which I believe will be Friday, the 7th of May.
In fact Mr Chairman, what I would request is that Strydom Britz take the necessary steps to serve the documents on Wagener Muller, Bell Dewar and Hall, the Legal Resources Centre and the Commission and that will obviate any need for me to make copies and send them out.
And then in turn, the other parties, I think should also circulate the drafts. Alternatively if they hand it to me, I will collate them and send them out. Friday the 7th.
MR HATTINGH: Mr Chairman, yes, during our discussion yesterday I indicated that I had no intention of leaving this for weeks and months, and I would do it as soon as possible and I said, I think we should look at towards the end of the month.
The suggestion is now the 29th, that is the Thursday. I would suggest just after that weekend, that Monday which is not really taking it much further, but it in any event would provide me with a second weekend for this purpose if necessary, so it is a matter of if possible, I would say, the 3rd of May, if I could then have it served on that Monday. It is not taking the matter, prolonging the whole process really.
MR CHASKALSON: Mr Chairman, then I would suggest that the response be done on Monday the 10th of May as well.
CHAIRPERSON: I assume if there is any further difficulty, people would raise it. In the absence of any and silence is consent, we have come to the end of the proceedings. We would obviously in the normal course of events, have required time to consider our decision in this matter.
In view of the arrangement to allow applicant's counsel a further opportunity, if he so wishes, to put supplementary argument before us in a written form, we would not be able in any event to give an immediate ruling in this matter.
Under those circumstances, we will have to reserve our decision which we would obviously not be able to make until we have received the supplementary arguments in this matter.
For the purposes of the supplementary argument, the applicant's legal representatives are allowed time to submit first of all, to serve on all of the other parties and to submit to the Amnesty Committee, written supplementary argument on or before the end of the day on Monday the 3rd of May 1999 and the other parties, are allowed an opportunity if they so wish, to respond to that supplementary written argument, also in written form, by the end of the day on Monday the 10th of May 1999.
At the very least, by submitting their responses to the Amnesty Committee's offices in Cape Town, on or before the end of the day on that date. If it is possible for them to exchange the responses amongst themselves, it will help, but if that hasn't happened, then the Committee's staff would deal with that particular question.
It only remains for us to thank all those who made it possible for us to have this hearing, all of the Commission's staff members, our interpreters, the proprietors of this venue for allowing the use of their facility, the security, police, those people who were charged with the security and as well as counsel and the various legal representatives who had appeared before us and who have assisted us in dealing with the matter and would still be assisting further in submitting supplementary written argument.
I would also like to thank my colleagues on the Panel with me. We will under these circumstances reserve our decision and we would release it once it is available. We are adjourned.