MR MALAN: You may be seated, thank you.
CHAIRPERSON: What are your full names?
EXAMINATION BY MR ROSSOUW: Mr Chairman, you will find the application of Mr Gouws in Bundle 4, from page 843 onwards up until page 881. Mr Chairman, the whole of his application and annexure thereto, have been bound into the record. The relevant section dealing with this incident, you will find on page 864 and onwards. Mr Gouws, do you have a copy of your amnesty application in front of you?
MR ROSSOUW: If you look at Form 1 as completed by you on page 843 to 847, do you confirm the correctness of that?
MR ROSSOUW: And then just briefly on page 848 and 849, you set out very brief background, do you confirm that?
MR ROSSOUW: At the time of this incident, what was your rank?
MR ROSSOUW: And where were you working, which division?
MR GOUWS: I was seconded to the Security Branch Northern Transvaal.
MR ROSSOUW: And under whose command did you work?
MR GOUWS: Indirectly Captain Hechter and directly, Brigadier Cronje.
MR ROSSOUW: Is it true that you shared an office with Captain Hechter at the Compol building?
MR ROSSOUW: As did Warrant Officer Oosthuizen?
MR ROSSOUW: Before your secondment to the Northern Transvaal Security Branch, which unit were you attached to?
MR GOUWS: Special Investigation unit at Head Office.
MR ROSSOUW: During your service in that unit, you dealt with the investigation of politically related incidents throughout the country?
MR ROSSOUW: Did you have direct knowledge of political unrest in the country?
MR ROSSOUW: As well as attacks on Policemen?
MR ROSSOUW: Did you have a personal knowledge of any of your colleagues who had been killed in attacks?
MR GOUWS: Before I went on secondment to the Northern Transvaal Security Branch, I spent some time working in Mamelodi, during which three of my black colleagues who worked with me, were shot dead in their homes.
MR ROSSOUW: Now, after your period of having been seconded to the Security Branch Northern Transvaal, you were transferred to Murder and Robbery?
MR ROSSOUW: Mr Gouws, as far as this specific incident for which you apply for amnesty, is concerned, you have now set out the background, where you got the order from. Please tell the Committee how it came about that you became involved or how it came about that you received instruction to take part in this operation?
MR GOUWS: On a particular day, I was approached either by Captain Hechter or Captain Prinsloo or Brigadier Cronje - according to what I heard in evidence before the Committee, it couldn't have been Hechter and also not Prinsloo, in other words I have to assume that it was Brigadier Cronje.
MR ROSSOUW: In your application you said that it was on that particular evening, but you have refreshed your memory now and can you recall that you received an instruction and also a briefing during the day?
MR GOUWS: Yes, it was during the day, office hours.
MR ROSSOUW: After the briefing, what information was conveyed to you, what would be your part in the operation?
MR GOUWS: There was a terrorist who had to be taken out that night, and who had certain information regarding a cell operating in Mamelodi, aiming to kill Policemen.
MR ROSSOUW: Mr Gouws, please just let's clear up any semantic confusion, when you say the terrorist had to be taken out, do you mean that he had to be taken to Mamelodi to make certain pointings out, there is no other inference of taking out in the sense of kill?
MR GOUWS: No, no, just pointings out.
MR ROSSOUW: From the circumstances, you had learnt that - Mr Oosthuizen had also made the inference that they got the order from Hechter because they shared the office, is that the possible reason why you also made such a mistake?
MR ROSSOUW: That particular evening, is it correct that you met at the Compol building at a certain time?
MR ROSSOUW: Now, as far as your recollection is concerned, when you met there, who was present?
MR GOUWS: Chairperson, according to what I can recall, that night at the Compol building, in the kombi was present Brigadier Cronje, Captain Prinsloo, Captain Momberg, Warrant Officer Oosthuizen, Sergeant Goosen, myself and then the suspect.
MR ROSSOUW: Can you tell the Committee where you went after leaving the Compol building?
MR GOUWS: We drove to Mamelodi where the suspect was supposed to point out certain houses or places where the other suspects were hiding, but we drove through Mamelodi without any success. After that, we went to not as it says in my application, an office of SAMCOR, it was just the SAMCOR building and behind the SAMCOR building which is still part of Mamelodi, there is an open piece of ground, we stopped, some of the people got out. Maybe I also got out of the vehicle, I am not sure. The suspect was further interrogated, he was also assaulted there.
MR ROSSOUW: Can you give an indication of who actually carried out the interrogation and assault at that stage?
MR GOUWS: According to me, Captain Prinsloo was in charge of the interrogation. The other people who were involved, well, I can't remember.
MR ROSSOUW: Did you take part in any interrogation or assault?
MR ROSSOUW: Were you armed at that stage?
MR GOUWS: Yes, I was armed with an R5 official firearm.
MR ROSSOUW: Was the purpose of that being that if there was a pointing out, you would have to enter certain premises?
MR ROSSOUW: During this interrogation and assault on this open piece of ground, serious threats were uttered to this person, can you recall that?
MR GOUWS: I can't recall specific threats but it is true that he was threatened, that is true.
MR ROSSOUW: Can you remember more or less where in the kombi he was sitting, between which people he was sitting? You have been listening to the evidence over the past few days, but can you personally recall that or not?
MR GOUWS: No, I can't remember that, I can't remember where in the kombi he was sitting.
MR ROSSOUW: So from the field in Mamelodi you then drove away, where did you go?
MR GOUWS: We drove in the direction of the Pienaarsriver. We went passed the Pienaarsriver Police station, across the bridge on a gravel road, I can't remember exactly how far, we stopped at some point, the suspect was then taken out of the boot of the kombi where he had been placed when we left Mamelodi. He was there further throttled by Captain Prinsloo until he became limp. Captain Momberg and Eric Goosen then took an explosive device, I am not sure exactly what it looks like.
MR ROSSOUW: Mr Gouws, I just want to stop you there please. Did you know that there was an explosive device in the kombi when you arrived at Pienaarsriver?
MR ROSSOUW: There was evidence of a certain carry bag, can you recall seeing such a thing in the kombi?
MR ROSSOUW: You say that Mr Momberg and Mr Goosen then took the explosive device, what happened then?
MR GOUWS: The suspect's body was limp at that stage, I don't know whether he was dead or unconscious at that stage, but they turned him over onto his stomach with his hands in front of his face, they placed the body on top of the explosive device, then we all got back into the kombi. At certain points I was outside the kombi, I don't know exactly at which stages. We then drove back, a couple of minutes afterwards, we heard the explosion. We turned around and drove passed the hole and we then went back to Pretoria.
MR ROSSOUW: In your application at page 865 you say that during the interrogation, at the SAMCOR building, at the field in Mamelodi, you sat in the kombi and you were enjoying drinks. Please elaborate on that.
MR GOUWS: Chairperson, I put that in because I had taken part in many operations with Brigadier Cronje and he usually took a bottle of whisky with him, and that is why I said that. I am not really certain whether we drank that night or not.
MR ROSSOUW: You also said that he was further strangled or throttled at Pienaarsriver, in your application you say that at the field he was suffocated and hit and kicked, can you recall that?
MR GOUWS: Yes. What I mean when I say suffocate or strangle is basically throttle.
MR ROSSOUW: At Pienaarsriver, did you at any stage take part in the interrogation of the suspect?
MR ROSSOUW: Did you take part in any assault on this person?
MR ROSSOUW: You said that it became clear to you as a result of the interrogation, that this person was part of a cell and the interrogation dealt with tracing other members of the cell which were planning to commit acts of terror?
MR ROSSOUW: You have already testified that you had personal knowledge of colleagues, Policemen who had been killed during attacks, black Policemen, is that correct?
MR ROSSOUW: To assault such an activist, how did you see that, did you see that as essential to extract information in order to prevent death and attacks on Policemen?
MR ROSSOUW: The Security Force's objective at that stage was to avert the revolutionary onslaught of the liberation movements, is that correct?
MR ROSSOUW: And to keep the government of the day in power?
MR ROSSOUW: You were also referred to and you are aware of the content of certain evidence adduced before this Committee and other panels and also in submissions made to the Truth Commission. I refer you specifically to Exhibit C which is already handed in. Do you confirm the contents of that evidence and are you requesting that your application be seen in the background of the political background set out in that document?
MR ROSSOUW: Mr Gouws, you also mentioned to me that during the past two days you have seen on television news that Police Officers, Police members were killed in shooting incidents in Johannesburg, can you tell the Committee how that made you feel and whether it was the same emotion as you felt at the time regarding onslaught and attacks on Policemen?
MR GOUWS: Chairperson, if I remember correctly Captain Momberg testified on Tuesday that he had regret about this incident, and to a certain extent I agreed with him, until on Tuesday night, I saw the news on television, and when I saw the family members, the family members of the Policeman who at that stage had been declared brain dead, then I felt different again about the whole situation. I felt sorry for the families as I felt sorry for the families of the deceased in this incident. If I am asked the question whether I would do that again, I would still have to decide. At that stage ...
JUDGE PILLAY: What was that last comment please, if you are asked would you do this again?
MR GOUWS: I would still have to consider that question.
MR ROSSOUW: At that stage, when you were involved, you were aware of the political unrest in Mamelodi and ... (tape ends) ... in the exercise of your duties?
MR ROSSOUW: There was a senior Officer, Brigadier Cronje who was present during all stages of this operation?
MR ROSSOUW: Did he indicate in any way that the assault, etc, should not continue?
MR ROSSOUW: He didn't stop Captain Prinsloo when he started throttling him?
MR ROSSOUW: You were a Sergeant at that stage, would you have been in a position to refuse to obey any order or instruction given by Cronje?
MR ROSSOUW: Mr Gouws, I am referring you to the rest of your amnesty application and the contents thereof, do you confirm it, do you confirm that it is also your signature on page 880 thereof?
MR ROSSOUW: Thank you Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MR ROSSOUW
CHAIRPERSON: Have you notified ...
MR MEINTJIES: Mr Chairman, yes, in fact I have arranged for him to be notified, thank you.
MR DU PLESSIS: I have no questions, thank you Mr Chairman.
NO CROSS-EXAMINATION BY MR DU PLESSIS
CROSS-EXAMINATION BY ADV PRINSLOO: Just two questions Mr Chairman, thank you. Mr Gouws, do you agree with Captain Prinsloo's evidence as to what happened at Pienaarsriver?
MR GOUWS: I can't recall his evidence exactly.
ADV PRINSLOO: The evidence which he adduced here.
MR GOUWS: In what particular aspect are you referring to?
ADV PRINSLOO: That the person was throttled outside the kombi and his body was bent backwards and then he slipped onto the ground?
ADV PRINSLOO: In your statement you said that the person had been kicked, where did that take place?
MR GOUWS: If I remember correctly, that happened at Mamelodi.
ADV PRINSLOO: Mr Prinsloo denies that he interrogated and kicked the person outside the kombi in Mamelodi. Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY ADV PRINSLOO
CROSS-EXAMINATION BY MR ALBERTS: Thank you Mr Chair. You testified that Captain Hechter was not present during the operation?
MR ALBERTS: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR ALBERTS
ADV STEENKAMP: I have no questions, thank you Mr Chairman.
NO CROSS-EXAMINATION BY ADV STEENKAMP
JUDGE PILLAY: Mr Gouws, there is something that bothers me, you said that as far as the attacks of Policemen were concerned, that this made you feel bad, you felt sorry for their families. Did you refer to that to try and show the Committee as to why you participated in or agreed with the killing of this man?
MR GOUWS: No, it is simply a feeling that I had.
JUDGE PILLAY: What is the relevance of that feeling in respect of this particular application?
MR GOUWS: I think I probably felt the same at that stage, at the time that the incident happened.
JUDGE PILLAY: Did it influence you in any way to participate in this incident?
MR GOUWS: It was my duty to do it.
MR MALAN: Mr Gouws, on this point, did I understand you correctly, you referred to the incident in which a Policeman was shot during this week and the family had come down from Venda?
MR GOUWS: Yes, that is correct.
MR MALAN: And that that was the feeling which you started feeling again that the murder on Policemen evoked a certain feeling in you and you felt the same way during the time of the incident, are you simply saying you had the same reaction?
MR MALAN: I would actually like to ask that to the first applicant, but I might as well as you, with regards the geography of the area, do you know the area well?
MR MALAN: And do you remember the evidence which said that from Compol the bus drove to go and fetch Brigadier Cronje at his home in Erasmia and from there you went to Mamelodi?
MR MALAN: As far as the geography of this is concerned, if I understand correctly Erasmia is about 20 to 25 kilometres in a westerly direction from here?
MR MALAN: And Mamelodi is in the east, eastern side, north-eastern side of Pretoria?
MR MALAN: So that would have meant that the road was followed towards Erasmia and then your steps were retraced to a certain extent to go back to Mamelodi? There is no other route across Pretoria?
MR MALAN: And you have no recollection that you drove with the people to Erasmia?
MR MALAN: Your memory is that you went straight from Compol to Mamelodi?
MR MALAN: All right, I don't know how relevant that is, but it just seems to me a rather odd way of carrying out an operation, especially where it involves a whole lot of people, I think Mr Oosthuizen also said that it seemed strange to him that you waste everybody's time to drive such a far distance. I just wanted to make sure that it was west and east, two totally different directions.
MR ROSSOUW: I have no re-examination Mr Chairman.
NO RE-EXAMINATION BY MR ROSSOUW
MR ROSSOUW: Mr Chairman, I don't know if Mr Du Plessis would like to take the opportunity of cross-examining Mr Oosthuizen?
MR DU PLESSIS: Mr Chairman, just perhaps one question. I don't know if my learned friend, Mr Alberts, cleared it up, Captain Hechter, was not involved in this operation at all?
MR DU PLESSIS: That is all I want to know, Mr Chairman, thank you.
MR ROSSOUW: Mr Chairman, may I then ask that both applicants be excused?
MR DU PLESSIS: Mr Chairman, may I perhaps just take the opportunity to apologise, I told Mr Steenkamp and I believe he told you, thank you very much, I am sorry I was late this morning.
CHAIRPERSON: You didn't delay us, we carried on as usual.
CHAIRPERSON: If you would like a short adjournment to get things sorted out, you can have that.
MR ALBERTS: Mr Chairman, in my case, it will merely be a smoke break.
CHAIRPERSON: Alright, we will take a short adjournment now, and then you can start.
UNKNOWN COUNSEL: Mr Chairman, I’m appearing on behalf of an implicated person, may I be excused then from the hearing?
CHAIRPERSON: You don't wish to say anything?
UNKNOWN COUNSEL: I don't wish to say anything, thank you.
CHAIRPERSON: Alright, who is going to start?
MR ALBERTS IN ARGUMENT: I suppose since I started with the evidence, it will be appropriate for me, for us to deal with the argument in that order as well. I must apologise up front Mr Chairman, I did draw Heads, I dictated them, but unfortunately I had a hitch at the office and it couldn't be typed, I will endeavour to get them to you however, because they may be of some assistance in so far as the judgements are concerned, and only in so far as I attempted a good analysis of the evidence, and of the salient facts really pertaining to these matters. That might be of assistance and although they might be somewhat belated, I will let you have them in any event.
MR ALBERTS: In so far as the first incident is concerned, that is the kidnapping and assault of an unknown person, the salient facts in my submission, are the following: It should be regarded as common cause on the evidence before the Committee that at least Hechter, Momberg and Goosen participated in this incident. There is some, well let's be frank about it, a great deal of uncertainty as to whether Van Jaarsveld also participated because he was implicated by Goosen and Momberg.
However, in my submission and I won't belabour the point, I think it has been traversed as far as need be, nothing ultimately turns thereon, on this uncertainty. I will return to that. The second salient fact in my submission ...
MR MALAN: Sorry Mr Alberts, is it not also common cause that Mamasela was involved?
MR ALBERTS: Excuse me, indeed. I forgot about him for a moment. The second salient fact is that prior to the if we can term it an operation, but prior to that, evidence had been gathered or rather, there was evidence, there was information that this particular guard whose identity unfortunately cannot be established, it has not been established, with respect through no fault at this stage of any of the applicants, that this guard could be of assistance in the tracing and obviously the ultimate capture of an MK cadre, being his brother.
JUDGE PILLAY: Mr Alberts, is it not correct that whatever was done there, irrespective of the uncertainties, that it cannot be disputed that it was done within the ambits of a political motive as envisaged by the Act?
MR ALBERTS: In my submission, yes.
JUDGE PILLAY: And that can't be disputed?
MR ALBERTS: On all the material before you, with respect, yes Mr Chairman, that is the situation.
JUDGE PILLAY: As far as making a full disclosure by your clients concerned, the only issue that I personally think, is the question of whether Van Jaarsveld was there or not, and you know what our views are on that.
MR ALBERTS: I agree with you that that is a material issue.
JUDGE PILLAY: I don't think it is such a material issue, to be quite honest, whether he was there or not.
MR ALBERTS: Sorry, I have expressed myself badly, you are quite correct. It was a material discrepancy in the evidence of witnesses which were heard, that however, begs the question. The question is whether such a discrepancy is material or not, and in my submission, from the point of view of a full disclosure, it is not. If there was a purposeful withholding of names of participants, certainly that, under such circumstances, could be argued that there wasn't a full disclosure, but where people are incorrectly, objectively speaking, incorrectly implicated, it can never be said ex hypothesi that there is not a full disclosure. To the extent that those people are incorrectly implicated, it can amount at most to irrelevant material, but it can never be said with respect, that there isn't full disclosure unless of course, one comes to the conclusion that there is a type of a fraud perpetrated, in other words, in the scheme of things, there is gross dishonesty or malice or that type of thing, and in the absence of dishonesty in whatever form, with respect, it doesn't detract from that requirement being fulfilled.
In my submission, to cut right through all this, my submission is simple that the applicants Momberg and Goosen have made a full disclosure, they have complied with the formal requirements of the Act, they have complied in so far as necessary, with each and every requirement contained in Section 20(2) and 20(3) of the Act. With respect, no finding on the evidence can be made that they were motivated by malice or spite or ill-will which excludes amnesty in terms of the Act, and under those circumstances, in view of the submissions I have made concerning compliance, I will ask for amnesty to be granted to them. In my submission, the Committee has been satisfied as is envisaged in Section 20(1) of the Act and therefore they qualify for amnesty.
Might I be permitted and once again, unfortunately I don't have this in writing, but the only remaining matter really to be dealt with, other than a summation of the facts, but I will let you have that in due course, I don't think we need to reinvent the wheel, and that is why specifically I am not addressing you on the issue of political motive, etc, etc, whether these acts were committed in the course of the conflict. As I understood and as I think we are all entitled to accept, those matters have been dealt with sufficiently already, the applications themselves, deal with that. Numerous other applications have dealt with that, judgements have been handed down, submissions have been made. With all due respect, that part of the matter, I think, speaks for itself at this stage already. I will therefore ask in the case of Goosen and Momberg for amnesty in respect of the following offences and or delicts: firstly the murder of an unknown person - sorry ...
CHAIRPERSON: I thought you were suddenly telling us something we hadn't been informed about yet.
MR ALBERTS: I am sorry, I am looking at the wrong list.
MR MALAN: Do we need to recall them for further evidence?
MR ALBERTS: Kidnapping of the unknown person and the assault of the unknown person, the unknown guard. In my submission, those are the only ...
CHAIRPERSON: A bit more - dates, places?
MR ALBERTS: As contained in the application, during or about the period July to December 1987.
CHAIRPERSON: Kidnapping in Pretoria?
MR ALBERTS: And at Pretoria and Warmbaths where applicable.
CHAIRPERSON: And he was an unknown security guard?
MR ALBERTS: Indeed Mr Chairman. Unless there is anything else the Committee ...
CHAIRPERSON: Perhaps we can put on the record at this stage the fact that the Leader of Evidence has endeavoured to have enquiries made to identify this security guard and that a visit was paid to the persons who were thought to have made use of his services yesterday, and we were informed that they had no record available as to what security services they were using at that time. So it has come up to a dead end there.
MR DU PLESSIS: Mr Chairman, perhaps I can elucidate something here, I have asked Captain Hechter to try and determine what he could find out, and perhaps that is why he became a Security Policeman, he did trace the person who was in charge of the security people at that specific branch, but he couldn't get any information from that specific person, he traced him to Johannesburg, and he couldn't get any information from him that brought him closer to this specific person. The person whom he contacted couldn't remember anything about somebody who disappeared at some stage, so we got to a dead end there.
CHAIRPERSON: Well, he was a victim and should have been notified. On the evidence as led, he didn't disappear, there may have been a suspicion but he was supposed to be back the next day and he may have gone back to work, so there might not have been anything noteworthy which would perhaps explain why nothing can be remembered.
MR DU PLESSIS: Yes, we thought that perhaps it could have happened that perhaps he may not have returned to his work as Captain Hechter says, sometimes it happened that they got a fright, and just disappear, but that apparently didn't happen and the person told him as far as I am aware from my discussions with Captain Hechter, the person told him that he cannot recollect anybody disappearing at that stage or leaving his job.
MR ALBERTS: Thank you Mr Chairman. If there is anything else specific that you would like to hear me on, unless that is the case, then I have no further submissions in respect of this incident. Thank you Mr Chairman.
MR ROSSOUW: Mr Chairman, I don't represent anybody who was involved in this incident.
MR DU PLESSIS IN ARGUMENT: Thank you Mr Chairman, I think I am next. Mr Chairman, you don't have to worry, I have made copies of excerpts from my Heads of argument in the Cronje matter, I have only made two sets Mr Chairman, because I couldn't risk giving Judge Wilson another set again. Those excerpts are the only ones that may be relevant in respect of the political motive, I don't think I am going to address you in any way whatsoever, in respect of that. I am just doing this for completeness sake.
JUDGE PILLAY: Do you expect me to be sympathetic to your clients after this?
MR DU PLESSIS: It worked previously Mr Chairman. That is just for completeness sake, but it doesn't seem to be the case that political motive is at all in issue here. In respect of the specific incidents, I make common cause with the submissions my learned friend, Mr Alberts, made and I do not intend to deal more fully with them, except that I want to make the submission that it is clear from Captain Hechter's previous evidence before the original Committee, as well as the medical evidence then presented to that Committee, that his memory, he suffers from a memory problem and that is the reason why he doesn't remember anything, he and Brigadier Cronje both rely on the evidence given by Goosen and Momberg for purposes of their applications and I submit that that is enough factual basis for them to receive amnesty.
In Captain Hechter's situation, he applies for the same offences as Goosen and Momberg, except Mr Chairman, I wrote on two pages the exact issues amnesty is sought for, and I included there being an accessory after the fact, which I am not sure if Mr Alberts wanted to include that, and then competent verdicts pertaining to assault and kidnapping, but that goes without saying really, and then delicts flowing from the facts.
In respect of Cronje, obviously he wasn't present and in so far he was the Commander, I can only ask for complicity to assault and complicity to kidnapping.
JUDGE PILLAY: He must have given approval and therefore he is party to the plan, isn't it? If he is going to be granted amnesty, it would be on the same offences?
MR DU PLESSIS: Yes, if you are satisfied in that regard, then I will seek for such an order on the same basis as the others.
CHAIRPERSON: He wouldn't have known about the assault, would he?
MR DU PLESSIS: Mr Chairman, his position is that he authorised such actions.
CHAIRPERSON: To go and get the security guard and get information from him?
CHAIRPERSON: They understood he would give them information, didn't they?
MR DU PLESSIS: Yes, but surely he would have foreseen that assault would have been part of the incident and perhaps Judge Pillay is right, the complicity part should be taken out and he should receive amnesty for being part ...
CHAIRPERSON: Both of the offences?
MR DU PLESSIS: For both of the offences, yes.
MR MALAN: May I just pursue that, because that has been worrying me. On the evidence, Brigadier Cronje had no knowledge or recollection of this. He simply says that that would have been the practice and he would have approved of it. There is no evidence that indicates that he had any knowledge or that prior authorisation was given. Shouldn't one then rather look at the complicity approach, on what basis, what disclosure did your client make which links him directly to the specific act?
MR DU PLESSIS: Mr Chairman, I am now not hundred percent sure, perhaps Mr Alberts can help me here in respect of the evidence of Goosen and Momberg, if they specifically testified that Brigadier Cronje knew about it before, I don't think they did.
MR MALAN: The evidence was that they believed he would have known.
MR DU PLESSIS: Yes. Mr Chairman, the only submission that I can make under these circumstances, is that Brigadier Cronje at that stage, knew that people under him were acting in this regard. He actually laid the foundation for people working under him to act unlawfully and to act in this regard. I don't think there is any doubt about the fact that complicity would be a competent verdict in such instance in respect of both the assault and the kidnapping.
JUDGE PILLAY: Mr Du Plessis, I prefaced my comments with the statement that if he is going to be granted amnesty at all, I think it should be for the same offences, otherwise he won't be granted amnesty in the circumstances. There is no evidence to indicate that he knew about it?
MR DU PLESSIS: Yes, except that still on the basis of the evidence, I don't think, well I make the submission that there is no evidence which indicates specifically that Brigadier Cronje knew of this incident beforehand, but on the other hand, Brigadier Cronje is in a position of a person who makes everything available to the people under him, to perpetrate such a criminal offence, and on that basis, it is possible that he could be prosecuted as having been an accomplice. It is the same as a person who is in a position, who provides another person with a weapon, knowing that the other person is going to commit an offence, but he doesn't know the specific offence that is going to be committed and he isn't aware of the offence when the offence is committed. As I understand the law Mr Chairman, he can be prosecuted for being an accomplice. An accomplice doesn't have to have specific knowledge of the specific incident and the specific happening in respect of the facts. On that basis at least, even if he wasn't involved specifically and didn't know about the incident right from the start, he can still be prosecuted for being an accomplice.
There is another argument which I may perhaps raise with you and that is the question in respect of the offences themselves, if one cannot construe common purpose in this incident, if you look at the broad picture, because here Brigadier Cronje, together with this group of people, acted collectively in respect of a lot of incidents. He was not involved as in your normal, simple situation where somebody is the target of an assault by ten people who have common purpose in this regard. But as you are well aware the whole doctrine of common purpose, has been developed over the past few years and the test has become wider, so under these circumstances, it may be possible that Brigadier Cronje could have been prosecuted for the kidnapping and assault itself on the basis of the fact that he had common purpose.
I don't want to go into a lengthy academic debate on this question Mr Chairman, I don't think this forum is the right place to do it, although these questions obviously lead to certain difficult legal questions and I had to decide last night, if I am going to go into the legalities or not. I don't, or I submit that it is not necessary for purposes of this Committee, to make an elaborate legal finding on the question, do the facts really indicate that there was common purpose or can there be complicity when a person is not involved in the act itself, etc some of these problems.
Under the circumstances, I would request you to grant amnesty to Brigadier Cronje on the same basis.
JUDGE PILLAY: This brings to mind another concept that I hadn't thought about yet, that this panel, all our panels are stuck with a judgement from the High Court in respect of blanket amnesty, and pertinent to that judgement is the fact that those who applied for amnesty, could not specifically say I was party to that or I knew of that. How does that affect your argument?
MR DU PLESSIS: Yes, but is a different situation Mr Chairman, because there as I understand those applications, they said look, I was in the higher structures of let's say MK ...
JUDGE PILLAY: Which Cronje takes the same position in this case?
MR DU PLESSIS: Except Mr Chairman, here we have a different situation. Cronje testified before the Committee and Cronje gave a clear indication that in respect of all these incidents, he created a specific perception, he created a specific system, he had a specific group of people who operated in this way. His evidence is that if they had contacted him beforehand, he would have given the permission. He gave a broad permission to them. They knew they had authority, they knew in a lot of instances, they didn't even have to ask for authority.
On that basis, in my submission, one can distinguish to the extent that Brigadier Cronje tries to or tried as far as he can, to place all the facts pertaining to every specific incident, before you, whereas as I understand those applications, and I haven't read those applications, Mr Chairman, I don't know exactly in what terms they are formulated, but the idea that I got from reading newspapers, etc, it seems to be that it is a very wide application saying a lot of different acts of which I don't know anything, have taken place under my command. Here you have Brigadier Cronje who says to you, this incident took place under my command, this specific one. I take responsibility because I authorised this kind of thing to be done by these people, in this kind of fashion. I would have granted it if I was approached before. I probably knew about it afterwards, and didn't say anything about it, so it makes it much more concrete than just a general application of a general nature, Mr Chairman.
CHAIRPERSON: There is a difference too isn't there, that Brigadier Cronje limits himself to a unit that he was the personal Commander of and whom he had given instructions to. My recollection, I didn't sign it I am pleased to say, of the general amnesty application, was that it was leaders of the party so to speak, who accepted responsibility for acts committed by members of their party, not of people they had direct control over?
MR DU PLESSIS: Yes, and also not in respect of acts that they ever knew of, they may only have become aware of now, whereas here we have a situation that on all the facts, on all the probabilities, we can accept that Brigadier Cronje knew about this incident immediately afterwards.
MR MALAN: Is it not also correct to say that once amnesty is granted on this application to Cronje, it will not go beyond this specific incident? There is no blanketness and it is limited specifically to an act as required by the Act?
MR DU PLESSIS: Correct, this application only relates to this specific incident, so that is why Brigadier Cronje's application as we have drawn it, refers to each and every specific incident he applies for amnesty for, where he says I was the Commander and in some incidents, he knew about it, some he knew about it afterwards and some he only came to know of lately. But in all those instances, he says I apply for this specific incident. There is no application before you by Brigadier Cronje saying these people who were under my command, I apply for everything that they did, without identifying the specific incident. And that is why he is going to be before this Committee in respect of every application of every person who worked under him. In my submission, in that regard, it doesn't go as far as a general blanket kind of amnesty, on that basis.
In my submission Mr Chairman, I would request the same kind of order that I handed up to you in respect of Hechter and which my learned friend, Mr Alberts, suggested should be the order made, and if you don't want to hear me on anything else, I have no further submissions.
ADV STEENKAMP: Mr Chairman, if I may just indicate, maybe dealing with Section 19 of the Act, the specific requirements informing or placing or the reasonable steps taken to trace this specific unknown victim, I can maybe just add to your comment with respect, Mr Chairman, that further steps were also taken. The Attorney General's office was also asked to establish whether or not any further information surfaced about the identity or the location of the unknown person, and unfortunately the answer was also in the negative, no information could be handed to us from the AG's office. Furthermore ...
MR MALAN: Sorry Mr Steenkamp, does the Attorney General have knowledge of this incident? Is that how I need to interpret what you are saying to us, that they are aware of this, that they have a docket in their possession, but they couldn't trace the victim?
ADV STEENKAMP: No Mr Chairman, the position is that one of the implicated parties in this incident, Mr Mamasela, was at one stage under witness protection, and was a witness, a Section 204 witness at the AG's office. In that circumstances, my suggestion was at the time that he will probably know, or knew, at this stage, who this unknown person was since he was practically possibly the person who abducted or kidnapped this person. In that sense, that is why the AG's office was contacted, to see if the information came from, or any statements made by Mamasela or anybody else for that matter.
MR MALAN: But there was no specific knowledge at the AG's office on this incident, they weren't investigating this specific incident to your knowledge?
ADV STEENKAMP: Absolutely Mr Chairman, that is exactly the position. Furthermore Mr Chairman, I have contacted other sections or branches of the SAPS to find out whether or not any other information could be traced, or any other dockets was further investigated, or even if there was a docket still pending, and no information could be handed to me. Furthermore I have personally asked the TRC's Investigation unit to see if they can find anything else, any further information and no information were also coming forward from them as well, so it is my respectful submission Mr Chairman, that in the circumstances, all reasonable steps were taken to meet the requirements regarding Section 19. Thank you Mr Chairman.
MR DU PLESSIS: Mr Chairman, may I perhaps be excused, I represented Captain Hechter, and I think it is clear that he is not involved in the incident, and in so far as Brigadier Cronje is concerned, he has already received amnesty for this incident? Unless you indicate to me that you want to hear me on something? Thank you Mr Chairman. May I just mention that in think the arrangement for Monday is that we will do the Maake Makupe Siphola incident of Mr Bokaba.
MR DU PLESSIS: Thank you Mr Chairman.
CHAIRPERSON: Let me indicate that not wanting to hear you, does not indicate anything personal, Mr Du Plessis.
MR DU PLESSIS: Thank you Mr Chairman.
MR ALBERTS: Mr Chairman, might I just enquire before my learned friend is excused, is it envisaged that this incident, I am not involved in the incident but I believe I am involved in the one that will most probably follow that, whether this matter is set down for the entire day or whether I should be ready to commence somewhere during the course of Monday with the following one?
MR MALAN: Mr Alberts, we will appreciate it if you will liaise with Mr Steenkamp. That is really something that needs to be sorted out at the organisational administrative level.
MR ALBERTS: Thank you Mr Chairman, I am sorry I burdened you with this.
ADV STEENKAMP: Mr Chairman, I may just indicate, I have already discussed this with my learned colleague, Mr Alberts, and as well as with Mr Rossouw, because they both are involved in the matter that is supposed to be heard on Monday morning. My request to them was if it is possible that maybe we can start with this matter in the afternoon, just after lunch, because Mr Bokaba is the only outstanding applicant in this matter. I made further discussions with Mr Du Plessis as well as with Mr Eric van der Berg from Bell Dewar, that will be representing the victims in this matter. If the matter may be, as far as I am concerned, Mr Chairman, there is no reason why this matter cannot be completed by I would say the latest, midday on Monday morning.
MR MALAN: Sorry Chair, sorry that we are sort of pursuing administrative matters at the moment, but why do we have to hear that brief matter on Monday morning, it was raised now by Mr Du Plessis, why can't we start with something that is obviously going to keep us for longer?
ADV STEENKAMP: Mr Chairman, the position is the availability of the legal representatives of the victims, he is not available. We tried to actually, I have tried to organise this matter to be set down at the end of the hearing, but it wasn't practically possible for him to attend the hearing at all, except on Monday.
MR DU PLESSIS: Mr Chairman, I may mention I wasn't difficult. My suggestion was that we do it right at the end of the role, but I will accommodate wherever I can.
MR MALAN: Is Mr Van der Berg opposing the application?
ADV DU PLESSIS: As far as I know, yes Mr Chairman.
MR MALAN: On what basis can we assume that we will be ready to proceed after lunch then with any other matter?
ADV STEENKAMP: I don't think there is a lot of specifics that will be in contention Mr Chairman.
MR MALAN: Please have a look at that, I don't want everybody to be sitting here waiting.
ADV STEENKAMP: Mr Chairman, okay.
CHAIRPERSON: Well, it appears that we can fairly safely tell everybody that we will not start their matters till after lunch on Monday? It may be possible if you make arrangements with one another, by quarter past eleven, to ascertain with some certainty, whether they will be required or not.
ADV STEENKAMP: I will gladly do so Mr Chairman.
MR ALBERTS IN ARGUMENT: Thank you Mr Chairman. Turning now to the second incident, the Pienaarsriver matter. Mr Chairman, in my submission this matter has almost from a simplicity point of view, resolved itself in the course of hearings connected with the first matter. In my submission, it is not necessary although I have touched thereon in the Heads, which I will give to you, to dwell on the facts at any length. In my submission, there are no material discrepancies in the evidence which redound to the disability of any of the applicants to meet the requirements.
I really can only repeat what I said to you in respect of the first matter. Once again in my submission, the applicants whom I represent have met the requirements of the Act fully and I would ask for amnesty to be granted to them in respect of the following offences or delicts, and now I can give you the full list that I have prepared. Firstly the murder of an unknown person during or about and here unfortunately the various applicants' dates are widely divergent, so to be on the safe side, I think one must put it between 1986 really on the one side, and it even goes as far as 1988 in the case of certain applicants, but it would appear that on all probabilities, it is 1986, 1987.
MR MALAN: Mr Alberts, did anyone mention a date beyond the end of 1987, I cannot recall that?
MR ALBERTS: I think I notice, if my memory doesn't fail me from the application of Mr Gouws, in the sense that he says 1987, 1988 and Prinsloo.
MR ROSSOUW: Sorry Mr Chairman, if I can be of assistance there. I think Mr Gouws' application refers to 1986, but he says he is not sure about the date. You will find that on page 864.
ADV PRINSLOO: Mr Prinsloo states on page 949 Mr Chairman, 1987 to 1988 but I will make submissions with regard to that date, Mr Chairman.
MR ALBERTS: Be that as it may Mr Chairman, once again my applicant says early in 1986. My feeling is it would have been on probabilities, 1986, 1987, depending on whatever further submissions might be made, at Pretoria, Mamelodi and what has been loosely termed Pienaarsriver.
JUDGE PILLAY: The murder would be in the vicinity of Pienaarsriver?
MR ALBERTS: As the Committee pleases, yes. The murder, I am merely blanket, I will tie each incident to a place. The murder would be Pienaarsriver, then the evidence has disclosed in my submission kidnapping and I don't think any of the applicants initially included that offence.
JUDGE PILLAY: As that because the rest was unlawful?
MR ALBERTS: Indeed, of the same person. Then thirdly assault of this person.
MR ALBERTS: The assault is at Mamelodi and Pienaarsriver, the kidnapping obviously would be Pretoria, Mamelodi/Pretoria.
MR MALAN: Nobody knows where he was taken from?
JUDGE PILLAY: It is a continuous crime?
MR ALBERTS: It is a continuous crime, the crime is of a continuing nature, so ...
JUDGE PILLAY: At the very least it would be at the offices in Pretoria?
MR ALBERTS: Indeed, that much is certain. That much is certain, it is difficult Mr Chairman, to try and pin this with any precision.
CHAIRPERSON: Is it necessary if you have him kidnapped at Compol offices Pretoria, continuing offence and then on?
MR ALBERTS: Indeed. Then the fourth distinct offence in my submission, is the desecration of the body of this unknown person and then fifthly Mr Chairman, and this is I must say, most probably taking the shotgun approach, but it is safe and I have satisfied myself that the arguments in this regard and I won't belabour those, and I also see that amnesty in respect of this was granted to Brigadier Cronje previously, contraventions of Sections 3, 4, 5, 6, 9 and 29 of the Explosives Act, that would be Act 26 of 1956. Those are the only offences for which I will be applying for amnesty, and or delicts, implicit in the offences, the crimes.
CHAIRPERSON: Was there any evidence that it was unlawful possession?
MR ALBERTS: No, but there was also no evidence that it was lawful and with respect Mr Chairman ...
JUDGE PILLAY: Isn't it a presumption?
MR ALBERTS: In the act itself?
MR ALBERTS: That is my recollection, unfortunately - I recently looked at this, but I am satisfied, unfortunately I can't put my finger on it now Mr Chairman, but I have satisfied myself and I will deal with this matter specifically in the Heads if necessary.
CHAIRPERSON: Because the unlawful possession would have extended of taking the landmine and carrying it to - that is the only possession of your client, isn't it?
MR ALBERTS: Indeed, and possibly of assuming possession in the sense that between Momberg and Goosen, they decided what device they would make use of. Possibly assuming possession of all the explosives which were contained in this bag and we know the evidence points to numerous explosives. There were handgrenades, there was the landmine and there was the limpet mine.
CHAIRPERSON: But they didn't take it from Cronje's possession? On the evidence we have heard, he was the only person who appears to have known that there were explosives there in the bag, everybody else has said they didn't know that there were any there. He indicates to them, they then take one thing out of the bag, I find it difficult to say that they have taken possession from their Commanding Officer (indistinct) that were under his control.
MR ALBERTS: I understand that. Possibly I am putting too fine a point on it, and I may be guilty of over-caution.
JUDGE PILLAY: When you deal with it, I think what you must - what I would like to deal with Mr Alberts is the fact that landmines and such type of weaponry are normally associated with the South African Defence Force. Maybe in that you could find unlawful possession by the Police which strictly speaking, shouldn't have been in the possession of that. I don't know, perhaps Cronje by his rank, was entitled to possession. I am not too au fait with those workings, but perhaps you can deal with it.
MR ALBERTS: I give the Committee the undertaking that I will apply my mind to this specifically and make my submissions. What I have previously done is I have read through these particular Sections of the Act and on my recollection of what I then established, I was of the view that it would be proper to apply in these terms.
CHAIRPERSON: Refer us to the Sections of the Act.
MR ALBERTS: I undertake to do so Mr Chairman.
CHAIRPERSON: Before you stop, Mr Alberts didn't they take this unfortunate man to Pienaarsriver to kill him in the light of the evidence of the last witness?
MR ALBERTS: Mr Chairman, in my submission ...
CHAIRPERSON: He was dumped, he had been assaulted, he was dumped in the back of the vehicle?
MR ALBERTS: That evidence in itself, with all due respect Mr Chairman, must be considered with some circumspection. It was the very last witness and the previous witness, the last two witnesses in fact. Their evidence tended to, well, their evidence was that he might have been there, I don't think any of them were absolutely categoric about it. If their evidence as a whole concerning their ability to have remembered all this, and to have accurately recollected what in fact happened, is also subject to a measure of doubt. If regard is had to the other evidence, there was no doubt whatsoever and that evidence was never attacked Mr Chairman, namely that there was during the course of the passage to Pienaarsriver, there was a continuing assault. It is only the last two witnesses who create the impression that there was a period of assault in Mamelodi and that that was then ceased altogether and then almost an assault, as an after-thought before the murder.
JUDGE PILLAY: (Microphone not on) The evidence of the last witness is that this man was almost off his feet, off his legs. The probabilities seem to favour that, I mean two hours in the hands of assault, being assaulted, you are not going to be fresh after that. I think the point of the question is, was it not decided to kill him thereafter given the possible condition of the unfortunate victim?
MR ALBERTS: Mr Chairman, the point - I hear what you say, the point I am trying to make is that on the probabilities the assault continued throughout and clearly on that understanding, I can accept that the man was on his last legs as it were at Pienaarsriver, but if one accepts that as a matter of probability, surely it is more probable that the assault would have continued on route to Pienaarsriver.
MR MALAN: Mr Alberts, sorry for interrupting you but following on the same line, specifically the Chair's question to you, is it not more probable that there was no assault under way to Pienaarsriver because the idea was exactly to move from an open field in Mamelodi to a more open place, where the assault could be intensified and that he would have been left to suffer on the way to where he would have been taken out of the kombi again? I am not sure that it is material, I am simply - when you are arguing probabilities, in my mind it is more probable that if you can't assault him heavily enough at an open field at Mamelodi, that you will continue that during the trip.
CHAIRPERSON: The evidence appears to indicate he gave them no information. The information he gave them was evasive, they didn't know if he had any information, wasn't it, and they could finally have decided in Mamelodi this whole thing is nonsense, we are not going to get anything from this chap and they decided in that case, we must get rid of him. We can't release him to go back and tell people.
MR ALBERTS: Mr Chairman, that surely would only have been the position if they had the full opportunity to assault the man in as violent a manner as possible in Mamelodi, but there can be little doubt, with respect, on the evidence that if I may express myself in these terms, it was a low key assault in Mamelodi for reasons which they gave and which in my submission, are credible. They just didn't have the opportunity to apply the measure of force which they hoped would result in meeting the objective of the exercise, namely to obtain information, to coerce the man into co-operating and doing what they intended getting from him in the first place. It would be a totally counter productive exercise, not to have your full go at him as it were, and at the same time, decide to terminate his life. In that regard, I must also refer to the evidence of Brigadier Cronje, which expressed in other terms, amounts to more or less this, that he was actually worth more alive than dead. The primary objective initially at least, was to obtain information and - I hear the proposition that it might be more probable that the assault was ceased altogether in this interim period, but certainly one would think if the objective is now really to get to grips with the man, you are not going to make it lighter for him in the meantime.
MR MALAN: But you are begging the question if you say that was the objective.
MR ALBERTS: The objective was primarily, to obtain information.
MR MALAN: The question was was the objective not to kill him?
MR ALBERTS: In my submission, no, until it became patently clear and what was also clear on the evidence, of Captain Prinsloo was that obviously the point was reached where he had become almost as despondent as one can rightfully accept.
MR ALBERTS: Indeed the victim was and then there was this, there was just the final lap to this, if I may term it as such where clearly too much force was applied to the man, obviously in a last desperate attempt to get him to cooperate by talking, or whatever. All this is couched in the measure of uncertainty. Mr Chairman, obviously on the facts, depending on your interpretation thereof, I must concede there is room, there is room to infer that a decision might already have been made concerning the ultimate demise of the man earlier, but by the same token, by the same token, there is evidence which would tend to point to the contrary. I don't think in the greater scheme of things, and for present purposes that it really makes a difference whether it was the one or the other, this is a sort of distinction without a difference really if one would go so far as analyse the evidence and take it to those two extremes. In my submission however, I believe that the applicants are honest when they say that subjectively certainly, the idea was actually to create a more favourable climate for certainly a much severer and harsher sort of ...
MR MALAN: A more unfavourable climate?
MR ALBERTS: Well, depending from which side you view the matter Mr Chairman, but for themselves obviously and for their intends and purposes. That is what I can submit to you Mr Chairman.
MR ROSSOUW IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, may I at the outset before I deal with the specifics of this incident, as far as the two applicants, Gouws and Oosthuizen are concerned, specifically with regard to their rank, they were non-commissioned Officers, they were a Warrant Officer and a Sergeant.
JUDGE PILLAY: Aren't they pretty much in the same position as Messrs Goosen and Momberg?
MR ROSSOUW: I believe that Mr Momberg was a Captain or Lieutenant at that stage and Mr Goosen was a Sergeant, I believe that is the evidence Mr Chairman. Let's speak for the people with that type of rank, all the evidence that I have referred the Committee to in Exhibit C has been deduced to a single paragraph as a conclusion to that in the amnesty decision of Brigadier Cronje and may I with the leave of the Committee, just repeat that. It says Mr Chairman
"... that the Committee is of the opinion that after hearing all the evidence about the total onslaught, the words used to convey instructions or suggestions to counter it, the tacit condonation of certain illegal methods and the subsequent praise and decorations extended, that the ordinary lower rank Policemen bona fide believed that any act, even illegal ones, could be carried out if the purpose was to frustrate the revolution and to keep the government in power."
Mr Chairman, specifically on this point the question may be asked could these people have believed that they were acting within the course and scope of their duties as envisaged in Sections 20(2)(b) and Section 20(2)(f) of the Act. Mr Chairman, with regard to all that evidence and specifically the evidence given by Min Vlok in the Khotso House matter, I have the extract of that matter here, he says that these people didn't need an order, they had the terrorists in their hands. For them it was their duty to guard the safety of the country by even conducting or committing illegal acts. Mr Chairman, therefore I would submit that as far as their participation and omissions in this incident are concerned, it was linked to illegal acts, there is no doubt about that, but there can be no doubt that they acted within the course and scope of their duties, what was expected from them, alternatively they definitely had reasonable grounds to believe that they acted within the course and scope of their duties as envisaged in Section 20(2)(f) of the Act. There is no doubt Mr Chairman, that they were Policemen, they were under the command of Brigadier Cronje in the Security Branch, they received an instruction, they carried out their orders. The evidence was that being Policemen of such low rank, they were not in a position to question an order, even an illegal one. The evidence of Captain Van Jaarsveld was also on that point, it just didn't happen that lower ranking Policemen would question in this instance, a Brigadier who was present.
Mr Chairman, if I may move, let me start with the formal requirements, both applicants' applications were submitted on time, on the 12th of December 1996, they have complied with the requirements of Section 18 and therefore Section 20(1)(a). As far as Section 20(1)(b) is concerned, an act with a political objective, Mr Chairman, I am well aware that the Committee is not bound by the decision of another panel of the same Committee, but in the matter of Brigadier Cronje, he has received amnesty in regard of this incident, and he could not have received amnesty if the act or omissions were not associated with a political objective. I therefore submit that there is at least a precedent for the Committee to be satisfied that this was an act, associated with a political objective.
Mr Chairman, in previous matters I have argued that one should be careful to view an incident like this as an armchair critic, I would submit that the Committee should place itself in the circumstances that prevailed during the time 1986, in Mamelodi specifically, the attack on Policemen and the Committee has in fact was a war being waged inside the borders of this country, in the decision of Brigadier Cronje and I would submit against that background, the evidence should be viewed. With specific reference, I have dealt with Section 20(2) and I submit that both applicants fall within the requirements of Section 20(2).
Mr Chairman, may I deal with the question of whether the intention was not to eliminate this person. You will remember that the evidence of Mr Oosthuizen was specifically that he concluded it was a subjective conclusion on his part, that when they drove away from Mamelodi that this person could be blown up, it says in his amnesty application. He has explained to you that he has used that word by looking back at the event, because he did not know that there were explosives inside the vehicle. I would submit that the evidence is clear and it is common cause that there was no plan, there was no conspiracy to murder this person and as such, they weren't conspirators to murder this person, but I submit that an individual taking into consideration what has happened there, a person being assaulted, being made a very, very serious threat that they are going to shoot his foot off, then driving away to a place which is more safe, further away in a rural area, I would submit that it is not illogical or far fetched for Mr Oosthuizen to have made that deduction. Similarly I must concede as Adv Alberts made his submission, that there is also evidence, the evidence is also that there was no intentional plan to go and eliminate him. Mr Chairman, as far as the question is concerned but isn't there any other conclusion that one should come to, because he had been severely assaulted and what are you going to do with this person now, once you have taken him out there, 55 kilometres away from Pretoria, obviously I must submit as far as the applicants that I represent are concerned, they were not in a position to have made that decision, and the only help that I can, the only assistance that I can be to the Committee is to refer you to the evidence of Brigadier Cronje and he said that it was not the plan to eliminate him, but what could have happened is, they could have taken him away to hide him somewhere and to give him time to recover from the obvious injuries that he had. He mentioned that they could have taken him to Vlakplaas for instance.
I can't take it any further than to say that this is really a question that should be answered by the senior in charge at the operation.
CHAIRPERSON: Was Mamasela involved in this incident?
MR ROSSOUW: Mr Chairman, the applicants that I represent, did not place him there and they did not testify that Mamasela was involved.
CHAIRPERSON: Wasn't he the source of information?
MR ROSSOUW: Mr Chairman, the applicants Gouws and Oosthuizen were not involved in any questioning at Compol prior to the ...
CHAIRPERSON: I am asking from the other evidence, was there evidence to that effect?
MR ROSSOUW: Not that I can recall Mr Chairman. I believe that Brigadier Cronje said he was brought in by Du Plessis, which my clients didn't know who this person was. They don't know that Mr Chairman. As far as the confusion is concerned from whom they received their instruction, referring to Captain Hechter, they have explained to the Committee that they made the deduction/assumption ex post facto based on the fact that they shared an office. As far as Captain Prinsloo is concerned Mr Chairman, they have heard the evidence here and they have conceded they must have made a mistake and they have said it could then only be in the structure that they were operating in, Brigadier Cronje, which I would subject is confirmed by the fact that Brigadier Cronje was also there, he took part in the operation.
JUDGE PILLAY: Mr Rossouw, would you agree that your clients must have known that this murder is going to take place?
MR ROSSOUW: Mr Chairman, I would submit that the evidence of specifically Mr Oosthuizen is correct in the sense that a reasonable person could have made the deduction that the person might be eliminated at a later stage. I am not aware as far as the evidence is concerned, and I can't make the submission, but it is possible as Brigadier Cronje testified that he could have been taken somewhere to recover.
JUDGE PILLAY: You see, why I ask this question, I am weary of the application your clients make. I must then assume that they make application for amnesty to murder in this case. When I listen to you then I ask myself the question on what basis do they attract liability?
MR ROSSOUW: Mr Chairman, they were obviously not co-perpetrators, but I would submit that if you are in a situation where a murder is committed, then you can be an accessory if you don't act to stop a person from committing that murder. Mr Chairman, as far as their subjective mind is concerned ...
JUDGE PILLAY: And if what was committed was culpable homicide and not murder?
MR ROSSOUW: Indeed Mr Chairman, that is the question, but obviously you have heard the evidence of Captain Prinsloo that by way of dolus eventualis he foresaw that this person could be killed.
JUDGE PILLAY: Because he knew the strength and the force which he was using.
JUDGE PILLAY: What about others?
MR ROSSOUW: Mr Chairman, that aspect was not specifically canvassed as far as my applicants are concerned, but I would submit that under the circumstances, having the testimony that by way of dolus eventualis it was foreseen that this person could be killed, that if a charge is to be brought against applicants Gouws and Oosthuizen, it will be for murder, their complicity in murder and culpable homicide might be, or their complicity to culpable homicide might be a competent verdict on that, but I am sure Mr Chairman, that the charge will be for murder. Mr Chairman, I will as far as their further evidence is concerned, I will submit that they didn't try and distance themselves from this incident, they have told the Committee frankly what they remember, they have conceded where they might have made a mistake and as far as the aspects where there is contradiction between the applicants are concerned, I would submit that the Committee correctly indicated that this has happened 13 years ago, and one is to expect some sort of contradictions. It is only natural and only human.
I therefore submit that they have made a full disclosure and that amnesty, I request that the Committee grant amnesty in respect of the following offences: the murder of an unknown person at Pienaarsriver during or about 1986; secondly the kidnapping of an unknown person during 1986 at Pretoria; thirdly the assault on the unknown person at Mamelodi and Pienaarsriver. Mr Chairman, I have also included the contraventions of the relevant sections of the Explosives Act, 26 of 1956. I have considered to include this Mr Chairman, on the basis that as the Committee correctly pointed out, there was explosives in the vehicle, they were not aware of this, so it might not have been in their possession to be unlawful possession thereof, but there was evidence that these types of explosives were regularly to be found in vehicles that went out on operations. That was given by Brigadier Cronje in his testimony. On that basis, also the fact that they became aware of this when the explosive device was taken out, as a matter of perhaps caution, over caution, I am including that contraventions of the Explosives Act; also Mr Chairman, the desecration of the body of an unknown person at Pienaarsriver. Mr Chairman, I have also included one which I have seen from the decision of the Amnesty Committee in other matters, the intimidation of this unknown person. If one has regard to the specific threats that were made at Mamelodi, Mr Chairman, I have also included them being accessories after the fact because they did not disclose this offence that was committed and this Policemen.
JUDGE PILLAY: If they are granted amnesty on the main counts, then that will fall away?
MR ROSSOUW: Indeed Mr Chairman, I am mentioning that as being over-cautious. I have considered that fact and it would indeed fall away, but I am mentioning that because one could argue that as Policemen they were under a duty, to disclose any offence that were committed in their presence that they were aware of. Lastly Mr Chairman, any delict that flows from this incident, what I am specifically thinking about for instance, a claim from any dependant of the unknown person, for loss of support for instance, because of the death of this person. Those are the offences that I have listed.
Mr Chairman, lastly I submit that on the evidence provided to the Committee, the Committee can be satisfied that the applicants have complied with all the requirements of the Act and that amnesty should be granted to them. As far as Mr Coetzer is concerned Mr Chairman, I do not intend to make any submissions, save to say that his position has been set out before this Committee and I would submit that he was indeed not involved in this incident. Thank you Mr Chairman, unless there is any specific aspect that the Committee wishes me to address them on.
ADV PRINSLOO IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, at the outset addresses were addressed to the Committee with regard to various aspects. I would like to address the Committee at first with regard to the requirements set out in Section 20 of the Act - first of all as to whether the application that was submitted by the applicant in the circumstances, complied with the requirements of the Act. Mr Chairman, I respectfully submit that the initial application submitted by the applicant, was submitted timeously as required by the Act. It is correct that in as far as the first application is concerned, it was supplemented by an additional statement, referred to as Exhibit A in this particular ...
JUDGE PILLAY: The supplement, what effect does the supplement have on the original application, didn't it change the nature of the application and therefore you would have a new application?
ADV PRINSLOO: Mr Chairman, I would respectfully submit it is not a new application, but indeed a supplement. If you Mr Chairman, will recall in the case of Gushu which was heard by His Lordship Mr Justice Pillay in Ermelo, the applications in that particular matter was totally defective, some of them were not even signed by the applicants and contained very little information ...
JUDGE PILLAY: Mr Prinsloo, maybe you misunderstand me. I have no problem with supplementing the original applications for clarity and even to get more specific. I am talking about the effect of this particular supplement had on the original application, didn't it change the nature of the facts?
ADV PRINSLOO: I respectfully submit Mr Chairman, that additional facts were contained in this particular application, that a material fact was included in the additional statement which referred to the strangulation of the person if I may refer to it as the deceased, that is indeed a material aspect, but it refers to the same incident. It was at no stage disputed in that particular application, the initial one, that this person was indeed assaulted and ultimately blown up Mr Chairman. I do concede the fact of the strangulation, as to how he was killed or rendered unconscious, was not disclosed by the applicant at that stage. Mr Chairman, I respectfully submit before an application is actually accepted, it only occurs as to when the application itself is heard, and in this regard I would like to refer the Honourable Committee to the case of Holmes Pty (Ltd) v National Transport Commission & Another 1951 (T) 659 and the relevant passage to this particular judgement Mr Chairman, is at page 667 (A) and his Lordship, Mr Justice Price
"... I do not agree either that the crucial event is the receipt by the Secretary of the Commission of the application form, the crucial event in my opinion is the presentation of the application to the meeting of the Commission which took place on the 11th of January 1951. At that date the company had been long registered, a document which for convenience is called an application, does not become an application until it is presented to the body which has to consider it."
I respectfully submit Mr Chairman, that this particular additional statement, Exhibit A was submitted to the TRC on the 20th of April 1999 and this was also conveyed prior to the submission thereof to the Evidence Leader, Mr Steenkamp as explained in Exhibit A2, the letter and Mr Chairman, I respectfully submit before the pre-trial hearing commenced, that statement was already in possession of the TRC and at the pre-trial Mr Chairman, where the Honourable Committee member, Mr Malan, presided, it was also indicated that an additional statement was indeed filed in the possession of the TRC. At that stage Mr Chairman, the fax number of all the members present was obtained in view of the fact that there was some delay and submitting this statement to the other members by the TRC, Mr Chairman.
JUDGE PILLAY: Mr Prinsloo, I think we will assume that that occurred, that this was handed in a couple of days before the hearing. Can you proceed then from that.
ADV PRINSLOO: I will proceed from that point Mr Chairman, that the applicant, Mr Prinsloo, then testified that he intended to testify at this hearing with regard to his involvement in this particular instance. Indeed Mr Chairman, in the statement, Exhibit A, he made a full disclosure and the facts, I respectfully submit Mr Chairman, that the evidence that was deduced at that particular Committee hearing, is corroborated by the evidence of the other witnesses in as far as this is concerned. I respectfully submit Mr Chairman, as far as full disclosure is concerned, nothing with regard of the truth was not disclosed by the witness. Indeed at this hearing it was fully disclosed and the witness testified to that and he was cross-examined with regard to that particular aspect.
CHAIRPERSON: Didn't he say Mr Prinsloo, that this application related to another incident, that is why he didn't mention the throttling?
ADV PRINSLOO: Mr Chairman, that was not my impression gained from the witness, that he did make application for various matters which are contained in Bundle 4 Mr Chairman, but at none of those incidents Mr Chairman, is a throttling involved.
CHAIRPERSON: Yes, but I say what he said in evidence when I asked him why he didn't mention the throttling, didn't he say because this application related to another incident?
ADV PRINSLOO: I respectfully submit no, Mr Chairman. This originated from an enquiry from the TRC in Exhibit A1, where they say does this event refer to the same incident and in pursuance to that Mr Chairman, I respectfully submit that this information was then conveyed to the TRC, which is then included in the Bundle of the application. My understanding with respect Mr Chairman, I stand to be corrected, was not that he said he was confused about that, he said he had no explanation as to why he did not initially submit this particular version which is now contained in Exhibit A. I think that was upon a question by Committee member, Mr Malan, Mr Chairman. I stand to be corrected.
MR MALAN: That is indeed so Mr Prinsloo, but that was after the discussion that the Chair talks about. I repeated that question. Be that as it may, please continue.
ADV PRINSLOO: I can't be of any further assistance as far as that is concerned, Mr Chairman, as far as my memory is concerned. Maybe if I can look that up, Mr Chairman.
MR MALAN: And that seems to be a problem in this matter.
ADV PRINSLOO: It seems to be a proverbial problem, Mr Chairman.
JUDGE PILLAY: Mr Prinsloo, in his application the original one, he applies for murder in paragraph 9(a), murder and any other offences, I can't see what is written there, and in pursuance to that, on page 950 of the Bundle 4, paragraphs 4 and 5 he gives a version, the murder he refers to in terms of this version here, is the murder that was a result of the person being led away and being blown up by a landmine. Do you follow?
ADV PRINSLOO: Correct Mr Chairman.
JUDGE PILLAY: The supplement, that is one application, that is an application for amnesty on murder based on those facts, that was submitted in time. This alleged supplement gives another version, it purports to supplement this, but it changes the character of the application because now he says yes, I caused the death by strangulation which is totally different. That is what I am referring to, the supplement doesn't it change the character of the original application?
ADV PRINSLOO: I respectfully submit Mr Chairman, it changes the character of the application, if one may call it the character, the version is changed in respect as to what ...
JUDGE PILLAY: No, not the version, there is two different versions. That is the problem. In fact, I want to suggest to you that it is a new application because now he takes physical responsibility for the death of that person.
ADV PRINSLOO: I respectfully submit Mr Chairman, that the statement, Exhibit A must be read in conjunction with the application as set out with the amendments that was submitted to the Committee.
CHAIRPERSON: But Mr Prinsloo, as my colleague has pointed out, it is not an amendment, he applied on one basis, he now comes in Exhibit A, on a completely different basis for a different murder. The first murder was killing somebody by blowing him up, right? The second one he now comes is I strangled someone. It is not an amendment, it is not an explanation, it is a completely new offence?
ADV PRINSLOO: I respectfully submit Mr Chairman, the fact of the strangulation was not submitted and in his statement, Exhibit A, he stated in that particular statement that the person as far as he was concerned, was rendered unconscious. He says
"... it seemed to me in the dark, that he was unconscious."
JUDGE PILLAY: What does that have to do with the question Mr Prinsloo?
ADV PRINSLOO: Mr Chairman, I respectfully submit that the facts contained in Exhibit A elucidates and adds to the statement he made initially in the application, and that fact was not disclosed initially. The applicant made an application for this to be included in his statement, and I respectfully submit Mr Chairman ...
JUDGE PILLAY: Why would you suggest that it was not submitted initially?
ADV PRINSLOO: Mr Chairman, I cannot offer an explanation on behalf of the applicant. I may indicate that I did not initially consult with him, it was my colleague that consulted with him.
CHAIRPERSON: Because he told us here there were two incidents at Pienaarsriver and I have applied for amnesty for the other incident.
ADV PRINSLOO: It is not at Pienaarsriver but in that vicinity.
CHAIRPERSON: Where is the other application?
ADV PRINSLOO: If you will bear with me, I will find the application Mr Chairman. Mr Chairman, if you look at page 940 of the application the heading (b) "The Case of Comrade." Mr Chairman, that is at page 942, paragraph 8 where it is stated
"... by means of Warrant Officer Putter who was also under my command, in a farm in the vicinity in Rust De Winter, I obtained a farm where we did interrogation."
I submit Rust De Winter is in the area of Pienaarsriver. That is how it is perceived by the applicant.
JUDGE PILLAY: In this incident, is there any mention of throttling Mr Comrade?
ADV PRINSLOO: Mr Chairman, no mentioning of any throttling or strangulation of Mr Comrade.
JUDGE PILLAY: Precisely. And you say you can't explain why it was never mentioned in this application?
ADV PRINSLOO: No, I can't from my personal point of view, explain Mr Chairman, apart from what the applicant explained that these applications were submitted at the last moment and there was a pressure for time at that stage. As you will notice a lot of these applications were submitted on that same day, that his application was submitted.
MR MALAN: Mr Prinsloo, may I just ask you, isn't it possible to construe on this that at the time his initial application was lodged, he did not make a full disclosure and that he played down his own role, but he did identify the incident, a clear recollection of the incident, many of the people involved, even the sequence of events? At some later stage he realised that he needs to make a full disclosure and he needs to disclose also his personal role and therefore what you tendered as an amendment or amplification, supplement to the original application?
ADV PRINSLOO: I respectfully submit that that is probable Mr Chairman.
MR MALAN: Are you saying probable?
ADV PRINSLOO: Correct Mr Chairman.
JUDGE PILLAY: Therefore from the very beginning he wasn't prepared to make a full disclosure?
ADV PRINSLOO: Mr Chairman, I respectfully submit that at the time of people making applications, I am not trying to make excuses, but there was a lot of hesitation and uncertainty among numerous members in consultation, as to what their role would be and what would take place.
JUDGE PILLAY: He made the decision, but he didn't want to take the consequences?
ADV PRINSLOO: I beg your pardon?
JUDGE PILLAY: He made the choice then, shouldn't he then take the consequences of that decision?
ADV PRINSLOO: Correct, yes, he made the choice, but with respect, without any hesitation upon enquiries from the Committee, he immediately explained that this application is connected with this one, and then gave his version. On the contrary Exhibit A was drafted by himself and not by me. In that respect, with respect, he came to the Committee with an open mind to make a full disclosure of what he had indeed done, he agreed with the evidence and with respect, if he wanted to tell a lie, he could very easily have come here and say that he didn't kill him.
JUDGE PILLAY: But he indeed said that in his initial application.
ADV PRINSLOO: With respect, if you look at the evidence of the other witnesses, they also conceded that this person could possibly have been unconscious. There was no physical investigation to see whether the man was indeed dead or not, so it was that person's judgement of what had happened in the dark. I want to submit with respect ...
CHAIRPERSON: Are you now saying there is no evidence that the killed him and therefore he cannot get amnesty for murder?
ADV PRINSLOO: I respectfully submit Mr Chairman, the applicant conceded and he stated that he realised - that was upon a question I think by Committee member Mr Malan, he realised that the person had become limp and that he had gone too far. He went so far as to say that he foresaw that by throttling this person, or strangling him, that will cause his death, which is indeed murder Mr Chairman. Indeed, subsequent to that ...
CHAIRPERSON: So he could have caused his death as the other people said?
ADV PRINSLOO: Correct Mr Chairman, I concede that. By strangling a person, if sufficient pressure is applied or breaking this thyroid, he will die.
MR MALAN: Let me just, I don't want to be unkind to the applicant, on the contrary I want to take as positive an approach as possible. Was the evidence not also that there was more than a likelihood that even if the information were received, that he might have been killed or would have been killed, wasn't that Cronje's line of evidence in the beginning, on the first incident?
ADV PRINSLOO: Mr Chairman, I can't vouch for Mr Cronje's evidence, but in as far as the applicant is concerned, he stated there would have been a reconsideration of what would happen to the applicant subsequent to receiving information, what happened, it would be reconsidered.
JUDGE PILLAY: Let me go further and say that during the interrogation and assault, that he in his own mind, had determined and questioned whether this man would ever be released again.
ADV PRINSLOO: That is correct, he stated that Mr Chairman.
JUDGE PILLAY: What did that mean, he is an unlawfully detained person, he had been assaulted. I can't believe that any Policeman is going to walk around with him for the rest of his life, what conclusion must one come to?
ADV PRINSLOO: Mr Chairman, I respectfully submit I can't, on the probabilities that if a person was detained, Prinsloo was not aware as to under what circumstances was he detained, because he was only informed at Silverton as to what transpired, so he received the person, which was in the custody of Brigadier Cronje, his superior and from then onwards, the interrogation flowed and Mr Chairman, an assault took place upon this person, he was taken to a secluded or isolated spot and where he was eventually killed. I respectfully submit Mr Chairman, the decision as to whether he should be killed, did not rest with the applicant although the applicant said he considered that, but the final decision would have been the decision of Brigadier Cronje, who was in charge.
JUDGE PILLAY: But Mr Prinsloo, the probabilities are that that person died at the hands of your client and that the blowing up of this body was a cover up job. The probabilities are that he wasn't killed by being blown up?
ADV PRINSLOO: Mr Chairman, the probabilities might favour that he was indeed blown up and on the other hand, Mr Chairman, if he wasn't dead at that stage, then it was a cover up both sides, he was seriously injured and blown up. But I respectfully submit Mr Chairman, that in view of the evidence, one must find that he indeed died as a result of the strangulation and was then blown up as far as the cover up was concerned. The cover up in essence, in order to achieve the purpose of the whole interrogation, was to extract information and it went horribly wrong, according to the evidence of the applicant, and he stated Mr Chairman
"... I realised that his body had become limp and I realised that I had gone too far."
I respectfully submit Mr Chairman, if he looks at retrospect at the time of strangling that person, he realised that he had gone limp and he realised that he had gone too far.
CHAIRPERSON: Didn't he also say ...
ADV PRINSLOO: I respectfully submit Mr Chairman, that must be viewed in the background of the evidence, that he used more force in order to get information from this person, whatever may be.
MR MALAN: Mr Prinsloo, if I can just summarise your argument again for me to try and understand that, because in my mind, speaking for myself only, the measure is not the political objective and the frame, but the disclosure or the level of disclosure, the honesty, the openness with which the information was put before us and whether that is a material defect or not. In the first application as has been pointed out, or the original document, prior to the so-called amendment, clearly the picture here is that in frustration, the interrogation was stopped and the victim was led away by the first two applicants and killed? That is the message of the first application. Is that correct?
ADV PRINSLOO: That is correct Mr Chairman.
MR MALAN: And you say the probability is that he decided, he chose at the time not to be open and frank because he did not know what would be resulting from his application, where the information would go or whatever?
ADV PRINSLOO: Mr Chairman, I can only speculate as far as that is concerned, I have got no ...
MR MALAN: That was your speculation indeed. But you didn't take instructions on that, we have to rely on the evidence, the evidence is he can't really say why. He remembered it at some later stage, that is not credible in my mind that he remembered later and he decided that he would tell us at the time of the hearing. Then comes the TRC with specific enquiries screening his application against other applications, which seems to be dealing with the same incident and they confront him with certain information about the strangulation and only then, does he acknowledge and does he then amend his application. You have argued that it is one application, that it is timeously and that it is a full disclosure. That is something that we must decide on. I want to ask a second question and I know that we have said that it is not really material as to who was present and who was not when especially it concerns non-applicants, but your client also implicated Van Jaarsveld and he based inter alia the reasons for his implication of Van Jaarsveld on his knowledge of the road and a discussion, an alleged discussion that he had with Coetzer. Now, I think it now more or less stands that it was not on the road that your client alleges this incident took place on, I think we will generally find, speaking again for myself, that it was indeed on the Pienaarsriver turn off, on the other side of the station, and not on the Pyramid Road. Now, certain information is before us which causes to achieve some objective which we cannot make out for ourselves. Shouldn't that also be considered for the purposes of full disclosure?
ADV PRINSLOO: Mr Chairman, first of all as far as the place is concerned, I respectfully submit in the evidence it has become apparent and clear that they are referring to the same place as to where this incident occurred, in the evidence before this Committee.
Secondly I respectfully submit Mr Chairman, that on the evidence it was apparent that unit B, of which Van Jaarsveld was the head of that unit, was responsible for the arrest of this person.
MR MALAN: Why do you say that Mr Prinsloo, isn't it common cause that Cronje himself was in charge?
ADV PRINSLOO: I respectfully submit Mr Chairman, it is common cause that Cronje was overall in charge of all the units at Compol building at this particular Branch but it was divided into various units, that Prinsloo of which he was head of a unit, did not arrest that person, so he could not have brought in that person, otherwise he would have dealt with him with his unit. So it flowed from that Mr Chairman, with respect that the persons involved were members of a different unit like Mr Momberg, Goosen and the two other applicants, Oosthuizen and Gouws.
MR MALAN: Mr Prinsloo, is it not closer to the truth to say that it is common cause that we don't have the faintest clue or idea as to who indeed did bring in this victim?
ADV PRINSLOO: Mr Chairman, that is a question that cannot be answered by the applicant, because he merely received this person at Silverton for the first time.
MR MALAN: No, you are not hearing me. You are arguing that it is common cause that the victim was under the control of Unit B. I think this is the reason for my question and in order to fix a perception or a belief or fix the evidence that indeed the deceased was under the control of Unit B, Van Jaarsveld was heavily implicated and there was a reliance on the discussion that the applicant Prinsloo had with Coetzer, to fix the control of Van Jaarsveld, his presence and therefore his control. That is in doubt, we don't know whether he was involved or not, and we have decided that is not really material. But the question is this, should we read something into the importance and the - I am not sure I know what the word is I am looking for - but the importance with which that statement was made, that this witness was indeed, this victim was indeed under the control of Unit B and Van Jaarsveld, whereas all the evidence points that such an individual should have been and would have been under the control of Unit C?
ADV PRINSLOO: I respectfully submit Mr Chairman, in as far as Coetzer is concerned, the applicant Prinsloo, stated that as far as the place is concerned, as to how it was decided to go to that particular spot, that he deducted that Coetzer is the one who had knowledge of that particular place as some hunting or whatever had taken place at that particular spot, that is the only essence of Coetzer Mr Chairman, not that he links Van Jaarsveld with Coetzer, as far as that is concerned. I respectfully submit Mr Chairman, it will be speculation, it won't be the only inference that this particular person was picked up by Unit C. If it is assumed that Unit B for instance obtained information from one of their informers and arrested this person without the presence of Unit C, then certainly it will perfectly in order Mr Chairman, to bring him in and he is then dealt with thereafter. There is no time that could be fixed when this man was arrested, or that Prinsloo was at all at the office at that stage, or whether his unit was available.
What is apparent, I respectfully submit Mr Chairman, that Brigadier Cronje was overall in charge, then involved Prinsloo, knowingly that he deals with these particular matters, in conjunction with the other units and the inference, I respectfully submit, the only reasonable inference that other units were involved in this particular arrest, otherwise Prinsloo's own unit members would have been involved in this exercise. It would have been absolutely absurd to involve other people then. Moreover Mr Chairman, although I did not participate in that part of it, in the first application rather, where it was suggested there was bad blood between Prinsloo and certain members of that particular unit.
MR MALAN: Mr Prinsloo, did it not turn out on the evidence, that the units involved where Hechter's Informal Unit, which included applicants Gouws and Oosthuizen, the two applicants Goosen and Momberg, which is Unit A and Prinsloo, which is Unit C? Nobody from Unit B not linked to Hechter's unit, isn't that the evidence before us now?
ADV PRINSLOO: Mr Chairman, on the evidence that appears to be so, as far as we understand the units, but in as far as Prinsloo is concerned, none of his members were involved and if it was his responsibility from the outset, I respectfully submit that no doubt would his members have been involved and furthermore I respectfully submit Mr Chairman, it appears from the evidence before the Committee that time was of the essence, for that particular reason, they immediately acted upon information and in order to obtain information from this particular unknown person, to point out other MK members as well as safe houses, in order to act swiftly.
JUDGE PILLAY: What was the purpose of this operation?
ADV PRINSLOO: On the evidence I respectfully submit Mr Chairman, that the purpose of this operation was to locate the other MK members involved, as well as to ascertain the whereabouts of safe houses and to act thereupon, after locating such places or persons.
JUDGE PILLAY: If that be the case and your client was Head of the Investigative Unit of the Security Branch, dealing with court cases, what was he doing on this operation?
ADV PRINSLOO: I respectfully submit Mr Chairman, it was not only in dealing with matters going to court, he was also primarily involved in tracing and locating as he referred to them, as terrorists which would be the MK members, so one must not view it with respect Mr Chairman, in isolation. Having regard to the fact that the number of people available in the Police Force at that stage against what these people perceived to be the total onslaught, what they were dealing with and time was of the essence, I would like to emphasise. Brigadier Cronje made a decision to involve Prinsloo, it was his decision.
CHAIRPERSON: Wasn't Brigadier Cronje merely gathering together the men he could, you have just said time was of the essence. He didn't exclude other members, we had no evidence to indicate that he had excluded other members of Lieutenant Prinsloo's unit, there is no evidence they were available that evening when he phoned him at home?
ADV PRINSLOO: That is probable Mr Chairman.
MR MALAN: I just want to make sure arising from a question by the Judge, let me put the question in English, is it not so on your argument, which I think is based on the evidence that the intention was to see if safe houses could be pointed out and that there would be an immediate action taken if such houses were pointed out, therefore the heavily arming of everybody, the larger group of people going out, it was clearly not simply for the interrogation of this individual, that wasn't the intention, the object of the exercise. Now if that was so, and on your argument, is that not something that primarily falls under the responsibilities of Unit C?
ADV PRINSLOO: Primarily under normal circumstances, Mr Chairman, with respect it would fall under Unit C, but in view of what transpired on that particular day or evening, it involved Unit C in conjunction with other units as was already pointed out by the Chairman, Mr Commissioner.
MR MALAN: Except as Brigadier Cronje gave evidence, that he knew, he said you know who to take along, who can fight and who can't, who can do the job and who is not able to. And he took control of this operation, but it wasn't as was indicated an operation, under no circumstances, an operation of Unit B?
ADV PRINSLOO: It might be wrongly construed, I respectfully submit Mr Chairman, it was an operation of Unit B, but the person who initially initiated this particular incident by whom the rest was affected, and the reliance might have been placed upon an informer and that is how the name of Mamasela came in, as he was primarily involved in gathering information and liaising with informers. Mamasela again in turn, I submit Mr Chairman, that was the evidence, was a member of Unit B, who was the responsibility of Captain Van Jaarsveld.
CHAIRPERSON: Wasn't he a member of the Operational unit under Hechter?
CHAIRPERSON: It was he and Hechter who formed the Operational Unit?
ADV PRINSLOO: Mr Chairman, the information at my disposal is that that particular unit only came into existence subsequent to this, that is my information Mr Chairman.
MR MALAN: Why did you not lead such evidence, why did you not ask the question under cross-examination Mr Prinsloo?
ADV PRINSLOO: Mr Chairman, such information I only obtained later, and I did not regard that as material Mr Chairman, as a matter of fact, it was told to me now as I was addressing you.
CHAIRPERSON: I take it from that your client sat next to you, heard all this evidence and didn't tell you that that is not correct? Once again, he waits until the last moment to tell you, is that what you are telling us now, Mr Prinsloo?
ADV PRINSLOO: Mr Chairman, with respect, that is not what I am saying.
CHAIRPERSON: Is it your client who has just told you?
ADV PRINSLOO: That is what I have said Mr Chairman, but the point I am trying to make, with respect Mr Chairman, is at no stage did I regard that as material, as far as that concerned.
MR MALAN: Well, you didn't know.
CHAIRPERSON: At what stage did your client tell you, you didn't know?
ADV PRINSLOO: ... stage, yes Mr Chairman, but not at an earlier stage. In view of the evidence given here, I didn't regard it as material at all Mr Chairman.
JUDGE PILLAY: No Mr Prinsloo, come, you didn't know it, so you couldn't have regarded it as material or immaterial. You only found that out now.
ADV PRINSLOO: Mr Chairman, that is correct, but at no stage was I, apart from this document that was given to me at a late stage of Cronje, was I present during the evidence given by Mr Cronje, and neither my applicant, Mr Chairman.
MR ALBERTS: Mr Chairman, might I be permitted to interpose here. In all fairness to Mr Prinsloo, I think what should not be lost sight of is that I for one, was surprised by the evidence of this Informal Operational Unit yesterday, I had no knowledge prior to Mr Van Jaarsveld testifying about the existence thereof. In all fairness to Mr Prinsloo, I think he was absent yesterday when that evidence was given. You will recall that was evidence that was relevant to the previous matter, and as I recall upon the conclusion of the cross-examination, Mr Prinsloo then joined the proceedings yesterday, so he would have been ignorant of that evidence in so far as obviously it might be of any relevance in the present context. Thank you Mr Chairman.
ADV PRINSLOO: I am indebted to my colleague's assistance in this regard, Mr Chairman, that is indeed the fact, I only came in when Mr Rossouw was busy cross-examining or Mr Du Plessis, Mr Van Jaarsveld.
CHAIRPERSON: Have you finished with that point?
ADV PRINSLOO: As far as the information is concerned, Mr Chairman, yes.
CHAIRPERSON: I would like to go back a little. You suggested that your client may not have - why do you say your client may not have disclosed in his original application that he strangled this man?
ADV PRINSLOO: Mr Chairman, as I indicated, I can merely speculate, I cannot give a reason.
CHAIRPERSON: What speculation was it?
ADV PRINSLOO: Mr Chairman, the one is which he testified to and said at the time when this application was submitted, it was submitted at the last minute and there were lots of other applications dealt with and he did not mention it, the other aspect was Mr Chairman, it must be borne in mind that at the time when these applications were submitted, there was a lot of uncertainty in the minds of numerous applicants with regard as to what would transpire subsequent to them making applications in this particular regard to the Amnesty Committee.
CHAIRPERSON: Read page 948, paragraph 10
"... at that stage Manslavi regained consciousness to a certain extent. I took a spade an hit him on the back of his head, just one blow. He once again lapsed into unconsciousness. We still, whilst Manslavi was still unconscious, we took his body, placed it over the limpet mine and Goosen and Momberg were allowed to detonate the limpet mine."
He wasn't keeping things away from the Committee, was he? He was disclosing a most brutal murder where he hit somebody over the head and then blew him up?
ADV PRINSLOO: That is correct Mr Chairman.
CHAIRPERSON: That would indicate that he was prepared in other matters, to make a full disclosure, doesn't it?
ADV PRINSLOO: Mr Chairman, I respectfully submit in that regard, I have not consulted with him about this matter, but he made a disclosure as Your Lordship, Mr Chairman, indicated.
ADV PRINSLOO: Mr Chairman, I respectfully submit as indicated what was placed before the Committee, there is no, I submit that the applicant made a full disclosure in giving his evidence, he made full concessions with regard to this. He conceded Mr Chairman, that his strangulation could have resulted in the death of the deceased and he was subsequently blown up. Nothing was withheld by the applicant, during the application itself. It is material I respectfully submit Mr Chairman, what the Committee must find as to whether the Committee is satisfied at this stage, as to whether the applicant made a full disclosure ...
JUDGE PILLAY: When does the application start?
ADV PRINSLOO: Mr Chairman, as I have submitted to the Honourable Committee, in view of the judgement of his Lordship Justice Price, it started when the application is heard by the Committee as this was a gross violation Mr Chairman, gross violations are indeed only heard by means of oral evidence and not merely by submissions in a statement.
JUDGE PILLAY: I am not too sure if Judge Price is correct because the application in my view, starts when the written application is submitted and thereafter the procedure of investigation is proceeded with before we come to a hearing, and that is all part of the application?
ADV PRINSLOO: Mr Chairman, in pursuance to that, the request by the TRC in Exhibit A, it was merely asked without any specification as to whether it refers to this incident, there was no request with regard to detail required, and the applicant of his own accord submitted the statement Exhibit A. If one reads the relevant request ...
JUDGE PILLAY: Mr Prinsloo, are you trying to deal with the point that I raised with you now?
ADV PRINSLOO: I beg your pardon Mr Chairman.
JUDGE PILLAY: Are you dealing with the point that I raised with you now?
ADV PRINSLOO: Yes Mr Chairman, I am dealing with that point. My submission is that I was relying on the judgement of His Lordship Mr Justice Price, but I respectfully submit that the application of the applicant complied with the requirements, he made a full disclosure by submitting the statement, Exhibit A, where he accepted full responsibility and indeed confirmed his evidence, elaborated upon in his evidence before the Committee.
JUDGE PILLAY: Do you concede that the applications begin when a written submission is made?
ADV PRINSLOO: I respectfully submit Mr Chairman, that that is debatable in view of the judgement which I have referred to of Mr Justice Price.
CHAIRPERSON: What about the provisions of the Act Mr Prinsloo, any person who wishes to apply for amnesty in respect of any act, shall within 12 months from the date of the proclamation or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form? There is a fixed period provided?
ADV PRINSLOO: Correct Mr Chairman. I respectfully submit...
CHAIRPERSON: That is when the application ...
ADV PRINSLOO: When it commenced as far as the submission of the application is concerned? Mr Chairman, if that view is adopted, I respectfully submit that a precedent will be created when in other applications, there were so many shortcomings in applications where I was involved and His Lordship Mr Justice Pillay was aware of that particular one of Gushu for instance, where it wasn't even signed in some instances, there were no detail. The people refer to a general statement and upon cross-examination, they had no knowledge even about that.
JUDGE PILLAY: Mr Prinsloo, I will thank you not to take it out of context. We are dealing with your client's application here.
ADV PRINSLOO: Mr Chairman, I was merely referring to a precedent and I am not labouring that point. I respectfully submit that the applicant was open and candid by coming to this ...
CHAIRPERSON: He was not when he made his application. A few days before the hearing, he suddenly realises that he is in all sorts of trouble because other people have made applications which involve him, so he then puts up an amended application.
ADV PRINSLOO: I respectfully submit Mr Chairman ...
CHAIRPERSON: Relating to a matter that he has not admitted having committed before.
ADV PRINSLOO: I respectfully submit Mr Chairman, that no consultation had taken place with the applicant subsequent to him filing this particular, initial application. The first consultation, a brief one, was with regard to this particular letter received from the TRC and then he of his own accord, compiled the statement, gave to me the statement and at that stage I was in the Northern Cape, in Kathu busy with a trial matter.
ADV PRINSLOO: Mr Chairman, I respectfully submit that in as far as Section 20 is concerned, that the applicant have made a full disclosure and in his evidence, have given an honest evidence with regard as to what took place on the particular event regarding this particular incident and that he does comply with those circumstances, and with regard to what I have already submitted to the Honourable Committee, Mr Chairman.
JUDGE PILLAY: Why do you say it is an honest ...
ADV PRINSLOO: Mr Chairman, there is no other evidence and indeed with respect Mr Chairman, the evidence of the applicant is corroborated by the other witnesses in this application. There is nothing to gainsay to the contrary that this applicant withheld anything from the Committee in this particular hearing as far as it is concerned. I respectfully submit Mr Chairman, the necessity in arriving at the end, if the Committee was satisfied with this particular incident, but be borne in mind that the relatives of this particular deceased is satisfied that this particular person met his death as was the evidence conveyed in this particular instance. I respectfully submit that the applicant was of assistance to the Committee in the evidence that he gave here. He admitted that he strangled the deceased. He could have stuck with the other version of not disclosing that he strangled the person.
MR MALAN: Then he would have been refused amnesty.
ADV PRINSLOO: I appreciate that Mr Chairman, I appreciate that but I respectfully submit to the contrary that he indeed made a full disclosure and gave honest evidence in as far as the application itself is concerned, in this particular hearing. In as far as the application is concerned, Mr Chairman, with regard to full disclosure, those are my submissions regarding that particular issue. I respectfully submit Mr Chairman, having regard to the evidence before the Committee, it was apparent from the evidence of Momberg and Goosen that the applicant was, in particular Momberg, that the applicant was assaulted, I beg your pardon, the deceased Mr Chairman, the unknown person, and he was assaulted by the applicant, which he did not deny. There are certain issues which are at variants as to whether he was assaulted at the open spot, Gouws said somebody kicked him, he wasn't sure about that and he was totally not clear about it. He did not say the applicant kicked him and neither did he say that the applicant at all assaulted him at this particular open spot. The applicant indeed said that he suggested to Brigadier Cronje that he be taken to an isolated spot, that is the evidence of the applicant. Indeed Mr Chairman, I submit is further indication as to his honesty in this particular matter. The applicant himself, with regard to the evidence of Oosthuizen, he was totally evasive and unclear as to what transpired when the applicant was moved from Mamelodi to Pienaarsriver where he ultimately met his death. He said it was dark, he couldn't say exactly where the person was and he conveyed to the Committee, he was the only one I respectfully submit, not Gouws, that this person was at that stage severely beaten and not able to assist himself, whatever. I respectfully submit Mr Chairman, the evidence is that he was further questioned at Pienaarsriver by the applicant and at that stage, subsequent to that, he was throttled, strangled and then met his death and he was then blown up. I respectfully submit Mr Chairman that on the evidence of this particular incident, which is common cause that Brigadier Cronje was in charge, my colleague Mr Alberts, have already addressed the Committee in full as far as that is concerned, and I respectfully submit the act committed by the applicant, was associated with a political motive in killing the deceased, in order to obtain the information and the whereabouts of other MK members and also safe houses. I submit Mr Chairman, that the Committee in the circumstances, should grant amnesty to the applicant on a charge of murder of an unknown person at Pienaarsriver, secondly one of kidnapping of the deceased, the kidnapping is then from at least Mr Chairman, from Mamelodi to Pienaarsriver. By taking a person to an isolated spot, is not in accordance with the law, it cannot be constituted to be lawful, deprived of his privacy and would then constitute a kidnapping. Sorry Mr Chairman, let me just get some water. Secondly Mr Chairman, the deceased in this matter was assaulted at Mamelodi, and according to the applicant's version, was further assaulted on the way up to Pienaarsriver and then strangled. Mr Chairman, he is guilty on a charge of murder, whether he should be convicted on a charge of assault which was a continuation, although that was not the intention, I would respectfully submit that he should also be granted amnesty on a charge of assault with intent to do grievous bodily harm.
MR MALAN: May I just interrupt here. No one else has referred to any other possible competent verdict on the evidence, but is this really an assault if the purpose was to extract evidence and it took place over a period of some two, three, four hours, whatever? Couldn't this constitute torture, isn't it closer to torture than to assault?
ADV PRINSLOO: Mr Chairman, in torturing a person involves an assault and the proper verdict, I submit, would be an assault with intent to do grievous bodily harm. If you grab somebody by his throat and strangle him for a while and then carry on, it would constitute an assault with intent to do grievous bodily harm, Mr Chairman. I respectfully submit Mr Chairman, in addition that there was the desecration of the body of the deceased after he was blown up, of which the applicant associated himself with. Then Mr Chairman, in as far as the possession of explosives are concerned, in as far as physical possession is concerned, the applicant was not in physical possession of explosives, but again Mr Chairman, he associated himself with the explosives that was used subsequently in that particular instance, and the use of explosives was for an unlawful purpose Mr Chairman. It can never in the circumstances, be argued that the blowing up was lawful and for that reason, the possession was unlawful of the particular explosives. That will be my submission as far as that particular aspect is concerned. As already submitted by Mr Alberts, that amnesty be granted with regard to that particular act, with those Sections referred to Mr Chairman. Mr Chairman, in addition, the killing of this person, or the death of this person, was never disclosed. The real facts were never disclosed at that particular stage, as to whether this will constitute defeating the ends of justice, is debatable as the applicant never made a particular statement relevant to this particular issue, in which one can gauge from that particular statement as to what he said to the Police or whoever body, but in the circumstances, there was a duty upon the applicant to make this disclosure as to the real facts as far as this is concerned. Understandably in the circumstances, a person will not make such a disclosure were he committed a murder. I am merely submitting that to the Committee to consider that particular aspect Mr Chairman. I am not sure as to whether this will constitute defeating the ends of justice. That indeed would be my submissions, Mr Chairman. If there is anything else, I would attempt to assist the Committee. Thank you Mr Chairman.
ADV STEENKAMP: I have no submissions, thank you Mr Chairman.
CHAIRPERSON: That concludes this hearing, does it? That concludes this hearing which was set down for today and tomorrow, so we will now adjourn until Monday, at ten o'clock?