MR LAX: You can remain standing, Mr Saloojee, if you'll just switch on your mike please. Your full names for the record please.
MR LAX: Sworn in, Chairperson. You may be seated, thank you.
MR BERGER: Thank you, Chairperson. Chairperson, I have here statements by Mr Saloojee and Mr Ismail, they've been stapled together, so if I could hand them both up to the Committee at this point. If the first could be marked Exhibit B, that is the statement by Mr Saloojee and then the statement by Mr Ismail, Exhibit C.
EXAMINATION BY MR BERGER: Thank you, Chairperson.
Mr Saloojee, is it correct that you are presently a Brigadier-General in the South African Air Force?
MR BERGER: You have applied for amnesty for a number of acts. If you would turn to page 8 of the bundle and have a look at the document running from page 8 through to page 13. Do you confirm that that is your application for amnesty?
MR SALOOJEE: I can confirm that.
MR BERGER: Now if you would have a look then at page 9, paragraph 9(a)(1), there are a number of acts stated there, starting with your joining of the ANC in 1982, running all the way through to page 10 to what you were doing during the period May 1991 to 1994. Now in relation to what is written on page 10, the period May 1991 to 1994, is it correct that you've already been granted amnesty in respect of those acts?
MR BERGER: But that amnesty was granted in chambers, you did not testify before any Committee, is that correct?
MR BERGER: Now as far as Mr Rohan's application is concerned, you referred to that at page 9, paragraph 9(a)(1), in that paragraph that deals with the period 1988 to 1990. You'll see there that there's reference to the application of Mr Rohan. But is it also correct that in addition to the acts for which Mr Rohan seeks amnesty, you also seek amnesty in addition for the commands and the acts that you committed in relation to other operatives?
MR SALOOJEE: That's what the amnesty application says, yes.
MR BERGER: Alright. Perhaps we should turn to Exhibit B and if you could read the statement into the record and I will then stop you again at appropriate points.
"I'm presently a Brigadier-General in the South African Air Force. During the period 1988 to 1990, I was the ANC's Regional Commander of Ordinance in Zimbabwe. I reported directly to Rashid, Aboobaker Ismail, who was then the Chief of Ordinance of MK. My responsibilities were to infiltrate weapons and ammunition into the country. I had a number of operatives working under my command."
MR BERGER: If I could stop you there. What is Ordinance?
MR SALOOJEE: Ordinance in the context of MK, is essentially that element of the armed struggle that provided the equipment, the ammunition, the weapons, which facilitated the execution of operations.
"Given the nature of our operations we did not keep records. It is therefore not possible for me to recall all the detail of the orders given by me. Our usual mode of infiltrating weapons into the country was to conceal the weapons within a vehicle. Once inside the country, the operative would cache the weapons in the ground, prepare a sketch of the cache and return the sketch to me. I in turn would hand the sketch to Rashid. The distribution of the sketches was the responsibility of Rashid and MK Military Headquarters. I have no knowledge of what happened to the weapons thereafter."
MR BERGER: Can I stop you there. In paragraph 2 where you refer to the operatives working under your command, are these the operatives that you referred to in paragraph 3, the operatives who would infiltrate - who'd be responsible for infiltrating the weapons into the country?
MR SALOOJEE: Yes, they were all members of MK and were specifically responsible for the infiltration of weapons. They were not responsible for any operations that were conducted by MK.
MR BERGER: And they fell under your command, you instructed them to infiltrate the weapons into the country.
MR SALOOJEE: As I've indicated, I was the Head of Regional Ordinance, with the responsibility for infiltrating weapons into the country. Obviously in that position I had a number of operatives and units working under my command.
MR BERGER: Alright. Now there's an error in paragraph 4, is that correct?
MR SALOOJEE: Yes, it's not August, it's October.
MR BERGER: So the word "August" should be deleted. Alright, please continue.
"In October 1988, I was instructed by Rashid to take charge of an internal operative, Rafiq Rohan. I accompanied Rashid when he met Rafiq in Harare and explain that Rafiq would report to me. I have read the statement of Rafiq Rohan and confirm that the contents thereof are true and correct insofar as they refer to me."
MR BERGER: Let me stop you there, please. You've also now heard the evidence of Mr Rohan, do you also confirm that the contents of his evidence are true and correct insofar as they relate to you?
MR SALOOJEE: I can confirm that.
"All the operations that Rafiq undertook and that are referred to in his statement, were discussed at length with me prior to his embarking thereon. Rafiq reported back to me after each operation, with the exception of the CR Swart Square explosion. I in turn reported to Rashid.
I have been advised that this Committee only intends to deal with the operations carried out by Rafiq. I point out that my amnesty application covers the period 1982 to '94. I have already been granted amnesty in respect of the acts committed between 1991 and '94. A copy of the notification in this respect is attached."
MR BERGER: Unfortunately it's not attached to - but Chairperson, we do have copies of that. If I could hand it up to the Committee. Perhaps it should be marked Exhibit B - I was going to say B1, but ...
CHAIRPERSON: We'll mark this Exhibit D.
Then you go on to say that if the Committee has any questions in regard to the other acts for which you seek amnesty, you are prepared to answer them now or at any other time, is that correct?
MR BERGER: Now that really refers - if we go back to page 9, that really refers to joining the ANC in 1982 and to training for one and a half years in Angola, then 1983 to 1985, being based in Botswana and being in charge of training for armed propaganda units and then '85 to '88, being based in London where you were working on special projects on behalf of the ANC. It's that period, '82 to '88, that you haven't yet given evidence about, but that you are prepared to if necessary, is that right?
MR LAX: Can I just stop you for a second. None of those aspects are matters for which any prosecution is likely to take place, they were offences under a whole battery of security legislation under the apartheid regime.
MR LAX: But under the present constitutional dispensation, none of things are likely to be regarded as offences at all.
MR LAX: You've never been prosecuted for those things, is there any need for amnesty? At a purely objective level, there's no likelihood whatsoever that he'll ever be prosecuted for those things.
MR BERGER: No, practically there is no need, but they were, technically, offences.
CHAIRPERSON: Were you ever granted indemnity in respect of any weapons or carrying of weapons?
MR SALOOJEE: Well when the integration of the Armed Forces took place, as part of the agreement on indemnity, all the weapons and explosives and ammunition that were infiltrated into this country as part of the agreement during the TRC, was handed over to the State, ...(indistinct) we got amnesty for that.
CHAIRPERSON: Yes, and I think that was a condition, if you hand it in you wouldn't be prosecuted.
MR SALOOJEE: No, no, this was part of an agreement between the parties at the TRC and the government at that point in time, it had nothing to do with the general amnesty that ...(intervention)
CHAIRPERSON: With the handing in of weapons before ...(intervention)
MR LAX: If I could just correct you, that was the TEC as opposed to the TRC.
MR SALOOJEE: Excuse me, the TEC, yes.
CHAIRPERSON: And wasn't it part of that agreement that people handing in their weapons wouldn't be prosecuted?
MR SALOOJEE: It was part of that, but this was a special arrangement that the ANC had come to with the State and we handed the weapons over to the then ... yes, new Defence Force.
MR LAX: It was part of the agreement at demobilisation and cessation of hostilities.
MR LAX: That all the dead letter boxes and so on would be uncovered and - the same agreement, for example, that applied to IFP as well, but the sort of, for example, the stuff that Mr Powell a year or two ago produced should have been under that same agreement.
MR BERGER: Mr Lax, in response to your question, what is described here during the period '82 to '88, goes a bit broader than what we've been discussing, because for example - okay, there are the armed propaganda units in Botswana, but then there's also the special projects whilst Mr Saloojee was in London.
MR LAX: I accept that there may be offences inherent in all of that. We don't have the detail before us at all and I'm not sure that any of that's been investigated yet either, but we're not going to hear that today as I understand it, per se, but ...
MR LAX: I think just leave the door open on that for now.
MR BERGER: What we just wanted to do was to alert the Amnesty Committee to the fact that for some reason Mr Saloojee was given amnesty for one period, 1991 to 1994, and then this application was set down and then there's still a section of his amnesty application that hasn't been considered and we just didn't want the Committee to ...(intervention)
MR LAX: Yes, no, no, I understand that, but part of the reason why that first amnesty was granted was that you will know that the other individuals involved in the same operations were actually heard in Durban. I was on that Panel, although I wasn't party to this decision, but they were also granted amnesty in respect of those same activities. So I think there was just a link-up made between this particular decision and those activities.
CHAIRPERSON: And as a matter of fact, on page 10 some detail was given about where weapons were stored, where they were, what was the period, that sort of thing, it wasn't a blanket sort of statement that he carried weapons and he didn't say where to and for what purpose. So some details have been given there and I think that was also a factor why amnesty was granted in respect of those incidents.
MR LAX: Can I just ask one last question in this regard. You haven't received any notification that any aspects of your application have been refused yet?
MR SALOOJEE: No, not to my knowledge.
MR LAX: Okay, because there are cases where some applications are partly granted and partly refused and so on, I think to the extent that the rest of this application hasn't been dealt with, Ms Patel can investigate that and the Amnesty Committee will obviously look into the matter and decide how to deal with it further.
MR BERGER: Then, Mr Saloojee, we just have to deal with the
period 1988 to '90. You've dealt with it in our statement, you've
dealt with it in your evidence, but just to be absolutely certain.
It says, from 1988 to 1990 you were based in Zimbabwe and you
were the Regional Commander, responsible for the internal
Ordinance section. You've already testified to that.
"Individual operatives who worked under my command have applied separately for the operations they undertook"
and you refer there to the application of Mr Rohan. Would I be correct in saying that the additional acts that you seek amnesty for today, are the acts where you instructed, advised, commanded the operatives under your control to infiltrate weapons into the country, using the mode that you've described in your evidence of arms caches, sketches and so on?
MR SALOOJEE: That would be correct, it's specifically related to the infiltration of weapons.
MR BERGER: And would it also be correct to say that during this period, '99 to '90, the only operative who actually carried out attacks, was Mr Rohan?
MR SALOOJEE: That's correct, yes.
MR BERGER: Because as you've explained in your evidence and in your statement, none of the other operatives were responsible for carrying out attacks and in fact you do not know what happened to the weapons after the sketches were handed to Rashid.
MR SALOOJEE: That's correct, yes.
MR LAX: Sorry, if I could just clarify.
The only offensive operations as opposed to Ordinance type operations, are those we're dealing with now?
MR SALOOJEE: That's correct, yes.
MR LAX: And that was because Mr Aboobaker commanded you to work directly with Rohan?
MR SALOOJEE: That's correct, yes.
CHAIRPERSON: Mr Berger, just to have clarity, I've got no trouble in you applying for amnesty as far as the incidents where Mr Rohan was involved, what other incidents are you asking for now?
MR BERGER: We're asking for amnesty for acts - you see I've had this debate on numerous times, the problem arises when you're dealing with applicants who were in a command position.
CHAIRPERSON: Ja, no I understand.
MR BERGER: Because they never carried out any of the operations, they gave instructions and commands. So we're asking for amnesty for the acts that Mr Saloojee carried out, which would be the giving of commands, the giving of instructions.
CHAIRPERSON: Ja, but at least then he should be able to give us the names of the operatives to whom he's given the instructions.
CHAIRPERSON: So that at least we could identify a specific offence or a delict, because we can only give amnesty for delicts and offences identifiable.
MR BERGER: Well I'll have to argue that to you at the end, because my submission is that the Act is that an applicant can be given amnesty for an act which ultimately would amount to a delict. Now we know that the, or in fact we don't know that all the weapons ultimately were used.
MR LAX: Can I just ask this, the asks of infiltrating Ordinance into the country do not in and of themselves amount to gross violations of human rights.
MR LAX: Therefore they are not matters that would normally be dealt with at a hearing. The only matter which do amount to gross violations of human rights are the ones presently before us in respect of Mr Rohan.
MR BERGER: That is so, but there is the ...(intervention)
MR LAX: I mean it's a matter of convenience to deal with them now if it's possible to and get them dealt with.
MR BERGER: But there's also the possibility, and this is really the issue that concerns us, there's the possibility that Mr Saloojee gives an instruction to an operative to infiltrate weapons into the country, the weapons then get infiltrated and stored, the sketch then gets sent out of the county, another instruction comes from Headquarters to another unit, to then go and get those weapons and arms and those weapons are then used in an offence. Technically Mr Saloojee is culpable.
CHAIRPERSON: Well he's culpable of bringing weapons into the country illegally.
MR BERGER: Well he's either an accomplice or he's an accessory, but he's also involved in the chain of events which ...(intervention)
CHAIRPERSON: Because it was brought in for that purpose and he in fact foresaw that it would be used.
MR LAX: But I mean it's the usual causality debate, how far do you go, do you go back to the prime evil slime, you know all that whole issue. In his case he had no specific knowledge of any other operations, other than these before us today.
MR LAX: And although he foresaw that they were being used, that was his function, to make sure that there were weapons and explosives and so on, whatever else there were. He had no personal knowledge of the individual acts that were going to be committed, other than he foresaw it in general terms they would be used for waging the liberation struggle.
MR BERGER: And he foresaw that they would be used for killing people or injuring people.
MR BERGER: And damaging property.
MR LAX: But so does everyone who manufactures a firearm, he foresees that it would be used at some time or other.
MR BERGER: But someone who manufactures a firearm within the context of the law prevailing at the time could argue that "I foresaw that it would only be used for a lawful purpose." Within the confines of the law at the time, the purposes for which Mr Saloojee intended the arms to be used were clearly unlawful.
MR LAX: Fair enough, fair enough. I think these are all matters of argument, I think let's deal with it at that stage.
MR BERGER: Well except from the point of view of full disclosure, the Chairperson has said that at least Mr Saloojee must be able to name the operatives who worked under his command in caching the weapons and that's a matter for evidence.
CHAIRPERSON: I think that would even - we would then be able to say well, we're giving amnesty linked to this and not a general amnesty for carrying weapons, but linked to those weapons which he instructed people to bring into the country and were those weapons brought in by those people into the country?
MR BERGER: Yes, although those people in turn wouldn't be able to tell you who ultimately used the weapons.
CHAIRPERSON: No, that's another thing.
MR BERGER: We would never be able to link them to a specific operation.
CHAIRPERSON: Ja, but we'll at least be able to link them being brought into the country illegally as far as that is concerned.
ADV SIGODI: And also the fact that if the sketches were taken back, then it would be the person in charge of the sketches who would give the direction to another operative to go and use those arms. He would not have given that command.
MR BERGER: No. We'll hear from Mr Ismail what happened to the sketches.
MR LAX: You see the other thing is that these are matters that would more appropriately be dealt with through a whole range of further investigations, requests for further particulars and stuff like that. I mean, just for argument's sake, let's say right at this very moment we ask Mr Saloojee to give us ten names and he gives us ten names and he forgets three because of the heat of the moment, and then we only grant him amnesty for ten instead of thirteen, it's not a proper way to deal with it right now, I don't think. I think it would be far better and safer to sit down and get the further particulars asked and for him to scour his mind in a calm environment and then it is a matter that might properly be dealt with in chambers.
CHAIRPERSON: Mr Berger, except that I wouldn't like this to sort of hang in the air again. If it would be possible for him to get the details today or tomorrow, can't it be handed to us, because really we want to finish the work, we don't want have it sent through to the office and it's misfiled or whatever there and nobody pays attention to it. So see what you could do about it.
MR BERGER: If you could just give me a few moments, I'll just take instructions.
Chairperson, we will scour our minds and if we can hand a list to Ms Patel by the end of the week, if that would be in order.
CHAIRPERSON: Yes, and could you kindly hand it to this Panel because otherwise it would - they wouldn't have the background that we've got now, so that we could deal with it in the same decision if possible.
MS PATEL: Certainly, Honourable Chair.
MR BERGER: Thank you, Chairperson. Again, we just didn't want this to slip through the cracks so that it never got dealt with.
Mr Saloojee, besides the list that we still have to draw up, is there anything else that you'd like to mention to the Committee at this stage?
MR SALOOJEE: Specifically in relation to Mr Rohan's issue?
MR SALOOJEE: I think at all times I acted within the confines of the ANC's policies, specifically in regard to the conduct of the armed struggle. I was a soldier of Umkhonto weSizwe and a member of the African National Congress and obviously in the training that I conducted with Mr Rohan, it was explicit that we will not operate in any manner which would go beyond the confines of the policies and the strategy of the ANC and MK, specifically in regard to the execution of military operations. And I think if you view the nature of the attacks that took place and the manner in which those operations were executed, I believe it confirms that we stayed within the confines of those policies.
MR BERGER: Thank you, Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR BERGER
MR LAX: Can I just, again - I know there are no victims present, but they will be traced in due course and they may want to read on the transcript whether you have any message for them.
MR SALOOJEE: The fact that I'm sitting here before you today is recognition that I accept that what has happened in the past needs to be dealt with in a manner in which we all understand the context within which a lot of these activities took place. I personally am of the view that it was regrettable that individuals were injured and in other MK operations, that people were killed. I was a committed solider and I am a committed soldier now. I'm a member of the National Defence Force and in my responsibility to the execution of my role, I have to accept that people get injured and killed in the execution of my work, but that everything that I did and all the instructions that I gave and all the individuals that I trained, were trained as I've indicated earlier on, within the ambit of fighting a just struggle. And in that process if individuals were affected, I obviously would not have liked that to have happened but I do accept the fact that in the nature of the kind of war that we were fighting, that that was a possibility and I accept the full consequences of that. So yes, obviously it's regrettable and that is why I'm here today. Thank you.
MR BERGER: Chairperson, would you like to adjourn for tea or should we continue?
CHAIRPERSON: Yes, perhaps this would be a - we'll take the short adjournment.
MR BERGER: Thank you, Chairperson. The next witness is Mr Aboobaker Ismail, who will also take the oath.